How can the linguistic behaviour of judges play this dual role of coding and illustration? To understand this, we need to understand the fact that positive legal systems and the norms that encode them as characteristics can legally exist in at least three different meanings. In section 2.1, I said that the law exists in the social world. It is time to explain this statement. First, note that legal systems, and the norms and values and other objects they contain, have a specific type of legal existence, namely validity. On the one hand, it can be said that a rule of law with a specific content exists legally, that is to say, it is valid if it is apparent from the linguistic conduct of judges, that is to say, if they have declared in their official writings that it is valid. The first type of existence that I call declarative validity. It should be emphasized that declarative validity differs from social validity or effectiveness, i.e. the extent to which citizens comply with the law, i.e. the extent to which legal norms belong to the law in action.
Secondly, it can be said that a rule of law has been developed by judges in accordance with the secondary or procedural rules of the positive legal order. This is what I call procedural validity. Note that ideally, all declaratively valid standards are procedurally valid, but in practice this will not always be the case. Third, a rule can be described as valid if it is compatible with the substantive constraints deriving from legal principles and values. Again, these principles and values are only legal if they are documented in sources of law such as treaties, constitutions and jurisprudence, and if they are established in accordance with the criteria of legal interpretation and reasoning recognized in that specific positive legal order. I call the third type of material validity validity. Ideally, all standards validated by judicial officials are procedurally and materially valid, but even in practice this will not always be the case. If a standard meets all three types of validity, I call that standard fully valid. Procedural validity represents normative constraints on declarative and substantive validity, and substantive validity represents normative constraints on procedural and declarative validity. However, despite these normative limitations, judicial officials may declare valid standards that are not valid according to procedural or substantive standards. Going back to one of the examples given in section 1.3, if the regional euthanasia review committees considered themselves competent to assess a case of euthanasia performed by a nurse, the standard they would create initially would only be declarative; Only in the long term could it become fully valid. The distinction between these types of validity is relevant because a comprehensive description of the law in books takes into account all three types of validity and reveals the “relevant consequences” of, and inconsistencies between, the three types of valid norms.
In addition, a full description also suggests ways to address inconsistencies. Since substantive and procedural validity are internal legal restrictions on the declarative validity of legal norms, statements on procedural and substantially valid norms are in fact descriptive statements about the positive legal order, even if those norms are not substantive valid. Statements on valid declarative norms are empirical descriptions of the law as a social object, i.e. based on the linguistic behaviour of lawyers; Statements on conflicts between and on the “relevant consequences” of valid declarative, procedural, and content norms are non-empirical descriptions of positive law as an optimal coherent normative system. As explained in section 1.2, they are not empirical insofar as the magistrates have not (yet) validated them. The objective of this article is to better understand the nature of these types of statements. I submit that the fact that the statements are based on criteria belonging to the positive legal order itself allows us to call them descriptions. They are descriptive because the claim that the criteria are part of the legal system can be empirically verified.
Therefore, it may, in principle, also be said whether or not a particular provision of that legal system satisfies those criteria. However, since the legal secretaries themselves have not (yet) declared that (the interpretation of) the norm as described by the jurists is valid, the description of the norm is not a description of a norm of the positive legal order as it exists in the social world.10x This statement is developed in section 3. For this reason, I call these statements non-empirical descriptions of standards. An important consequence of the above is that jurists can only formulate such descriptions of doctrinal and non-empirical legal norms that actually have a fairly specific and coherent set of intralegal criteria. These criteria most likely exist in a community where: Hart (1957), p. 596. Hart also says: “The two thinkers` main reason for this insistence was to enable people to constantly recognize the exact problems arising from the existence of morally evil laws and to understand the specific character of the authority of a legal system.” Martin M (2020a) Convincing or obeying: Krito and the prerequisites of justice.
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