Under What Conditions Can We Speak of the Law as a System of Norms?

*
Giulio Itzcovich* *

Abstract
The article addresses three distinct, although related, questions: 1.A theoretical question: is the law a system of norms? 2.A question about the method of legal science: at what conditions is it convenient to speak of the law as being a system of norms? 3.A question of sociology of law and history of legal thought: what cultural and institutional conditions made it possible to speak of the law as a normative system? In order to explain in what sense the law is a system of norms, it is necessary to identify the cultural and institutional preconditions and the methodological and epistemological consequences of the concept of law as normative system. The article holds that the methodological consequences are of the utmost importance: to conceive of the law as a system of norms allows us to perform certain practical operations and theoretical observations which are essential to our legal experience. If the law is conceived as a normative system, a legal method can emerge, and a specifically legal form of reasoning can develop. Keywords: Normativism. Legal system. Legal method. Systematisation. Codification. Foreword The theoretical question is the law a system of norms? deserves to be distinguished from the methodological question is it useful to conceive of the law as a system of norms?. The first question is perhaps badly formulated and surely it is quite broad (1). To the second question my answer is positive: to conceive of the law as a system of norms allows us to perform certain practical operations and theoretical observations which are essential to our legal experience (2). The concept of normative system permits us to observe the existen* Question posed by Pierre Brunet for the conference Positivisme, description et interprtation. Dialogues critiques, Centre de Thorie et Analyse du Droit, Universit de Paris Ouest Nanterre la Dfense, 7 May 2009. I am grateful to Pierre Brunet, Michel Troper, Riccardo Guastini, Mauro Barberis and to all the participants in the conference for valuable comments. ** Ricercatore di Filosofia del Diritto, Dipartimento di Scienze Giuridiche, Universit di Brescia, itzcovich@jus.unibs.it.

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ce of normative relations (hierarchy, abrogation, derogation, etc.) which are formally independent from the will of the individual who detects and applies them. If the law is conceived as a normative system, it is for the system, and not for the interpreter, to identify the norms belonging to the system and to determine their mutual relations. The norms of the system and their relations depend upon the interpreters will only from an empirical viewpoint (i. e., from a psychological, naturalistic, causal perspective, which is external to the system). From the conceptual viewpoint (i. e., from a rechtslogisch, operative perspective, which is internal to the system) the norms of the system and their relations are totally unrelated to the interpreters will. If the law is conceived as a normative system, a legal method can emerge, and a specifically legal form of reasoning can develop. The idea of the law as a system of norms is the result of a set of cultural, historical and institutional factors, which are characteristic of modern European legal experience 1. Thus, the question on the conditions under which the law can be conceived as a normative system can be understood, in a third sense, as a question concerning the identification of such factors. What are the cultural and institutional preconditions of a conception of the law as being a system of norms? Do such preconditions continue to exist? (3). Finally, I will return to the original theoretical question and I will argue that indeed modern law is and continues to be, at least in one important respect, a system of norms (4). However, in order to explain in what sense the law is a system of norms, it is necessary to identify the (cultural and institutional) preconditions and the (methodological and epistemological) consequences of the concept of law as normative system. It is thus helpful to break down the question under what conditions can we speak of the law as being a system of norms?. Three questions must be distinguished: 1. A theoretical question: is the law a system of norms? 2. A question on the method of legal science: at what conditions is it convenient to speak of the law as being a system of norms? what do we gain and what do we lose? 3. A question of history of legal thought, sociology of law and legal culture: what conditions made it possible to speak of the law as a normative system?
1 See, generally, M. Barberis, LEuropa del diritto, Bologna, Il Mulino, 2008, pp.63 ff. On the topic of the law as system of norms see also, from the Genoa School, G. Tarello, Ordinamento giuridico (1975), in G. Tarello, Cultura giuridica e politica del diritto, Bologna, Il Mulino, 1988, pp.173-204; R. Guastini, Distinguendo. Studi di teoria e di metateoria del diritto, Torino, Giappichelli, 1996, pp.281 ff.; M. Barberis, Levoluzione nel diritto, Torino, Giappichelli, 1998, Chap.II; G. Itzcovich, Integrazione giuridica. Unanalisi concettuale, in Diritto pubblico, 3, 2005, pp.749-786; G. Itzcovich, Teorie e ideologie del diritto comunitario, Torino, Giappichelli, 2006, Chap. II; R. Guastini, Il diritto come linguaggio. Lezioni, Torino, Giappichelli, 20062, pp.117 ff.; G.B. Ratti, Sistema giuridico e sistemazione del diritto, Torino, Giappichelli, 2008.

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1. The theoretical question The question under what conditions can we speak of the law as being a system of norms? may be interpreted as being a theoretical question (a conceptual question, and not an empirical or a normative one) concerning the nature of law: is the law made up of norms? do such norms constitute a system? 1.1. Actually, this is not a theoretical question, nor is it two distinct theoretical questions, but it identifies a set of distinct issues which is almost coextensive with the field of legal theory. One may pose at least the following questions: 1.1.1. What kind of norms belongs to the system? Are they just rules, which are valid because they have been enacted by the competent authority and thus have an appropriate pedigree (Kelsen, Bobbio, Hart), or are they also principles of political morality principles that are both internal and external to the legal system (Schmitt, Dworkin, Zagrebelsky)? Is the law merely legal, or is it also legitimate, as it is grounded upon substantive principles which identify and justify the best law? 1.1.2. Is the law made up of norms (Kelsen, Hart, Dworkin) or is it made up (exclusively or partly) of facts (legal institutionalism and legal realism, sociology of law)? 1.1.3. Are the legal norms facts? Are they reducible to facts? If the legal norms are facts, what kind of fact are they? Are they normative texts, or are they the meanings of the normative texts? Is the law a set of meanings, of reasons rules, principles, arguments (Kelsen, Raz, Dworkin: the system of valid norms, the reasons for action endowed with authority, the integrity of an interpretative practice) or is the law a set of decisions, acts of will and actions (what the sovereign has established, what the judges do)? 1.1.4. Finally, with regard to the system: does the law be it made up of rules or principles, norms or facts, meanings or texts, reasons or decisions constitute a system? Is the law a system because it is a consistent, complete and independent body of rules, as Kelsen and the traditional jurisprudence maintained? Or is it a system only because it is observed as such by a legal science which, by systematising the law, also transforms it (Tarello, Guastini, Ratti)? Or, finally, is the law a system because for the law only the law can identify the elements which compose the law the law as an autopoietic system (Luhmann)? 1.2. If the question under what conditions can we speak of the law as being a system of norms? is understood as a theoretical question concerning the nature of the law, then the question is badly formulated. Its answer cannot but be: we can speak of the law as a system of norms on condition that the law is system of norms. In order for this answer to be satisfactory, however. it is necessary to deal with some of the abovementioned theoretical questions (1.1.1-1.1.4), by elaborating or analysing the concepts of legal norm and system and this is what legal theory generally does.

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2. The methodological question By asking under what conditions can we speak of the law as a system of norms?, we might pose a question concerning the method of legal science. Then we are asking why we should adopt a concept of law as system of norms: for what reasons is it convenient practically useful and theoretically productive to speak of the law as a system of norms? 2.1. The theoretical question 1. and the methodological question 2. ought to be distinguished because they are connected: if we do not distinguish them, we fail to see the connections. 2.1.1. With regard to the alternative rules or principles (1.1.1), if we adopt a concept of law as being made up also of principles, then, from a methodological viewpoint, we tend towards a normative (legitimising or critical) legal science. The question concerns the nature of law, but it also concern the legitimacy of law, and thus the method of legal science and its possible objects of knowledge: only the rules or also the principles of political morality? The alternative is between description and prescription, between knowledge of the existing law and decision on the best law, between methodological legal positivism and methodological natural law theory2. 2.1.2. With regard to the question norms or facts? (1.1.2), if we adopt a concept of law as inclusive of social facts or exclusively made up of facts, then we opt for a programmatically impure legal science, a legal science that must not limit itself to describing the norms of the system. In that case, we would say that an appropriate knowledge of the law can be achieved only if we take into account certain aspects such as the interpreters ideologies, the judges attitudes, the political trends, the positive morality3.
2 On methodological legal positivism, see N. Bobbio, Il positivismo giuridico, Torino, Giappichel li, 1996, pp.133. According to Bobbio, however, there are merely historical links, and no logical relation whatsoever, between theoretical and methodological legal positivism. On the contrary, M. Troper, Per una teoria giuridica dello Stato (1994), Napoli, Guida, 1998, p.34, admits the existence of a logical link between theoretical and methodological legal positivism, as our idea of the law [has] an influence on our conception of the legal science. The relation between the principled theories of law (which reject both the concept of law as a system of rules and theoretical legal positivism) and the normative turn of contemporary legal science (i.e., its rejection of methodological legal positivism) might be not only of an historical kind but also, to a certain extent, conceptual in nature. Indeed it is true that we might support the idea of a normative legal science and, at the same time, deny the legal relevance and/or the objectivity of moral principles. This is the stand taken by L. Ferrajoli, Principia iuris. Teoria del diritto e della democrazia, 2voll., Roma-Bari, Laterza, 2007, on the basis of his distinction between validit and vigore (validity and force of law), his conception of the rigid constitution as an ought internal to the law, and his idea of the performative nature of legal theory. However, it is difficult to maintain that (1)the law comprises some moral values (so called inclusive legal positivism), and that nevertheless (2)legal science should limit itself to describing the law, without having recourse to moral evaluations. Such a theoretical and methodological position should presuppose the adoption of a cognitivist meta ethics and, most importantly, it does not remove the doubt that a legal science that claims to describe the true moral values embodied in the law cannot actually be a descriptive legal science after all. 3 This is a methodological choice common to legal realism, legal institutionalism and sociology of law. For a recent plea for an impure legal science, see R. Marra, Per una scienza di realt del di-

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2.1.3. Finally, if we adopt a concept of law as being made up of texts instead of norms, of decisions instead of reasons (1.1.3), then we can distinguish an internal legal science from an external legal science. The former is the legal doctrine which reasons within the law and deals with norms (as it interprets the texts in order to derive norms, and it knows and applies norms). The latter, the external legal science, is the legal theory which analyses normative texts (among which are included also texts interpreting other texts: the doctrine and the case law) and reasons about the law. The legal theory does not produce norms but limits itself to knowing or conjecturing the contents of someone elses decisions. 2.2. The connections between the theoretical question 1. and the methodological question 2. are many, but three are fundamental. 2.2.1. If we assume, in a theoretical perspective, that the law is a system of norms (and/or values), then, from a methodological point of view, it is clear that we should speak of the law as a system of norms (and/or values): by doing so, we would know the law for what it is. 2.2.2. If, on the contrary, we deny that the law is a system of norms, the methodological consequences may be various. In any case, however, the metatheoretical question concerning the reasons why legal science conceives or has conceived of the law in such a way becomes possible and interesting. One may argue, for instance, that the description of the law as a system of norms has been hegemonic in the legal culture for ideological, surreptitious and extra-scientific reasons. One may argue that the law is said to be a system of norms with the major aim of disguising the interpreters discretion, creating a perception of legitimacy and detached and objective knowledge of the law, relieving the jurists of any political responsibility and increasing their influence on the legal development. One may argue that the law in itself does not constitute an ordered system (the so-called internal system, Rechtsordnung), and that it is a system only for the legal science, insofar as the legal science constructs the law as a system, systematises the law, building the so-called external system, the systema iuris4. 2.2.3. Finally, one can refrain from taking a theoretical stand on the nature of law (a system of norms?), and make a methodological choice in favour of a normativist and systematic legal science. From a methodological viewpoint it might be useful to assume that the law is a system of norms, without making any strong theoretical commitment about the nature of law. Maybe the law in itself is not a system, but the jurist shall know and use the law as if it were a system of norms5.
ritto (contro il feticismo giuridico), I, in Materiali per una storia della cultura giuridica, 38/2, 2008, pp.317-376 and 39/1, 2009, pp.5-30. 4 G. Tarello, op.cit.; R. Guastini, Il diritto come linguaggio, cit., p.124; G.B. Ratti, op.cit. 5 This idea resembles the conception of the system as regulative ideal of legal science. However, as the next paragraphs will show, it is possible to maintain that the idea of the law as a system of norms represents something more than a regulative ideal: it is a fundamental methodological postulate of legal science, and it corresponds to an essential feature of modern law. On the idea of the system as a regulative ideal of legal science, see C.E. Alchourrn, E. Bulygin, Introduccin a la metodologa de las

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2.3.How to answer the methodological question 2.? Why should legal science use a concept of law as normative system, why should it reason as if the law were a system of norms (2.2.3.), if that premise is erroneous? How can the hypothesis of the law as a system of norms be productive from a methodological point of view, if it is false? Can we assume that the law is a system of norms for methodological reasons, without necessarily committing ourselves to a theory of the law as system? And if we maintain that law is a system because the legal science should conceive of the law as being a system, are we not confusing is (what the law is) and ought (what is desirable for the legal science)? My answer to this last question is negative. Notwithstanding the many connections between the theoretical and the methodological question, the latter can be discussed prior to and independently of the former. Indeed, the idea of the law as a system of norms is not empirically falsifiable, as it is not based on the observation of facts: the law is not a system out there, in the world. If the law is a system of norms is a conceptual question, to which we can properly answer only after we have clarified the consequences to a great extent, methodological consequences that derive from the description of the law a system of norms. Moreover, given that the law is a social practice, what the law is depends on how the law is known and practised, and given that the law is generally known and practised as a system of norms, there might be some reasons for this. Such reasons do not imply, obviously, that the law is really a system of norms, but they show that it is useful, at least for someone (the jurists), to conceive of the law as a system of norms. Therefore, the question on the practical (methodological) consequences of the concept of law as a system of norms is perfectly legitimate, and its discussion may cast some light on the theoretical question. What are the costs and what are the benefits of the idea (the methodological hypothesis) of the law as system of norms? 2.3.1. The methodological hypothesis of the law as system of norms certainly has costs, and it runs the risk of impoverishing the legal science. We might lose the possibility of a sociological knowledge of the law, or we might attribute the task of producing such knowledge to disciplines other than legal science (1.1.2 and 2.1.2). All empirical, moral and political aspects of adjudication tend to be hidden. The image of the law as a system of norms conceals the degree of indeterminacy intrinsic to the application of law the discretion of the deciding authority (1.1.3 and 2.1.3). In this way, legal science might give a strongly idealised picture of the law: a picture that may appear ideological or, rather, doctrinal, because it is normative and thus internal to the legal system it aims at describing. Indeed, in order to speak of the law as a system of norms we must deny that the
ciencias jurdicas y sociales, Buenos Aires, Astrea, 1975, cap.IX, pp.225-241, p.226: [it is] a sort of ideal that the jurists share with other scholars, which functions as the real premise of every scientific enterprise, and which is not a political ideal corresponding to a specific ideology, but it rather is a purely rational ideal; J. Bengoetxea, Legal System as a Regulative Idea, in Archiv fr Rechts- und Sozialphilosophie, 53, 1994, pp.65-80; J.L. Mart, La nozione di ideale regolativo: note preliminari per una teoria degli ideali regolativi nel diritto, in Ragion Pratica, 25, 2005, pp.381-403.

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legal norms are the result of interpretations, because otherwise they could hardly compose a system (interpretation changes in the course of time, and different judges may interpret differently the same provision)6; in order to speak of the law as a system of norms, we must assume that legal norms exist prior to and independently of interpretation, and that legal interpretation is contra legem if it conflicts with the system of valid norms. Therefore, in order to speak of the law as a system of norms we must sharply distinguish between valid law (the system of norms) and living law (the law as it is actually interpreted and applied). In doing so, we run the risk that the law studied by the legal science (the system of norms, the valid law) turns out to be an ideal law, a law which exists only for legal science. We fail to disclose that the law is made by human beings, from time to time and in certain circumstances, and thus coherence and completeness of the legal system are impossible or, at the most, represent a normative ideal for the legal science. This, to put it shortly, is the core of the twentieth-century anti-formalist critique of the idea of the law as a system of norms7. 2.3.2. The realistic critique is, to my eyes, totally correct. However, we must admit that there might be good reasons for adopting the concept of law as a normative system. This idea lies at the basis of the legal method and legal reasoning. We must distinguish the practical, operative value of the idea of law as a system of norms from its theoretical, heuristic value. The latter may be called into question, but the former is beyond discussion in legal doctrine and jurisprudence. 2.3.3. For the jurist, the idea of law as a system of norms has some benefits which largely coincide with the costs stressed by the realistic critique (2.3.1) the responsibility for the decision is transferred to the system. On the basis of this hypothesis, we may conceive of the adjudication as being a legal process a self-governing system of norms, so to say instead of being a contradictory collection of political decisions coming from the courts and the officials. This is indeed important: several basic and daily operations at the core of legal practice depend upon the possibility of conceiving adjudication and administration as legal processes. Adjudication and administration can be conceived as application of the law, law enforcement, due and fair processes; the very concepts of rule of law and Rechtsstaat (law state) are based on this assumption. Moreover, as we will see below (3), once the process of constitutionalisation is completed, it is possible to conceive as being a legal process not only the application of law, but also its production. This has enormous practical consequences and originates several linguistic uses of the utmost importance for legal practice. If, for instance, we hold that
R. Guastini, Distinguendo, cit., p.286. See generally A. Tanzi (ed.), Lantiformalismo giuridico. Un percorso antologico, Milano, Raffa ello Cortina, 1999; L. Lombardi [Vallauri], Saggio sul diritto giurisprudenziale, Milano, Giuffr, 1967, Chap.III.
6 7

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a statute is unconstitutional and that it should be abrogated, nullified or not applied, we are implicitly assuming that the law is a system of norms; we are making a legal statement that is based on the premise that the constitution is hierarchically superior to the statute, and that the supremacy of the constitution, instead of being dependent upon the personal choice of the speaker, is characteristic of the system. If the law is conceived as a system of norms, there can be relations between the norms belonging to the system (such as hierarchy). If the law is conceived as a system of norms, we can distinguish between right interpretations and wrong interpretations (interpretations which contradict the system), and we can conceive of the application of law as being the logical subsumption of a correctly described case under a valid rule of the system. In this way, it becomes possible to require the judges to ascertain the relevant facts of the case, and only those facts, and to require them to apply the rules belonging to the system, and only those rules, without paying attention to other social facts, political ideologies, or alleged scientific and moral truths, not belonging to the system and irrelevant to the system. From a practical and institutional perspective, this is particularly important if we want the judge to be an apolitical official. If we want to centralise the political responsibility within a representative constitutional authority, then the normativistic model of legal science assumes a certain appeal: is it better to have obedient judges and officials, or to have wise, morally inspired and politically sensible judges and officials? The jurists conceive of the law as being a system of norms because every non-legal consideration must be excluded, if not from the decision (in the context of discovery), at least from its grounding (in the context of justification). The judges authority is, as Weber would put it, legal-rational. His judgments are generally obeyed because one assumes that they have been adopt ed not by an individual on the basis of personal considerations, moral insight and idiosyncratic attitudes, but by an official acting impartially and enforcing a law imposed by other authorities. If we want the judges to be the holders of a charismatic legitimacy and we want them to constitute a social group endowed with a prestige and an influence of a sapiential nature, if we want them to be legitimated not legally, but by virtue of the dignity of the rank, the moral expertise, the fair and equal procedures of the trial and of the dialogue within the interpreters community, then we are inclined to discard the picture of the law as a system of norms. At the most, we tend to conceive of that system as encompassing also the principles of political morality (1.1.1 and 2.1.1), or as being an external system created by legal science in its incessant systematisation activity, instead of conceiving it as internal system and legal order (a set of norms regulating its own transformation). If we do not want the judges to be professional officials, state organs endowed with a legal legitimacy, we may be eager to exclude that the law can be reduced to a system of norms norms that are valid because of the way in which they have been enact ed. We might strive for legal argumentation to be as open as possible to political and moral considerations, and urge the judge to exhibit openly his discretionary
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powers through balancing judgments between principles8. We might emphasise the moral responsibility of the judge, or rely on certain principles of political morality which should be acknowledged and pursued by the judges principles to which the judges should be sensible and should always make reference9. This is the political and a methodological choice made by neoconstitutional ism, which legal positivism resists. 2.3.4. It is possible to adopt a concept of law as system of norms on the basis of a methodological choice, without assuming a strong theoretical commitment on the question of the nature of law (2.2.3). The hypothesis of the law as a system of norms is a condition of possibility for the legal method: a specific form of reasoning aimed to ascertain the valid norms of the system and their mutual relationships (2.3.3). 3. The historical question The possibility of having a legal method as well as the possibility of conceiving of the law as a system of norms depends from an empirical, legal-historical point of view on a set of cultural and institutional premises. This is the third possible approach to the question under what conditions can we speak of the law as being a system of norms?: as a question of sociology of law, history of legal thought and institutional history. The emphasis is placed on the conditions of possibility for a theoretical and/or methodological choice. In order to answer the question, we must identify the conditions under which, as a matter of fact, it is possible to think of the law as being a system of norms10. 3.1. Although they are distinct and sometimes conflicting processes, doctrinal systematisation, legislative codification and constitutionalisation are three key-words for explaining the idea of the law as a system of norms. The concept of law as a system emerges when certain degrees of centralisation of political power and positivisation of the law have been reached. The concept of law as systema iuris an external system reconstructed by legal science is characteristic of the natural law theory of the seventeenth and eighteenth centuries. The concept of the law as a legal order an internal system, a self-contained, intrinsical ly ordered set of norms which regulates its own amendment emerges in the nineteenth and twentieth centuries. Historically the concept of legal order is an expression of legal positivism, which in turn is a result of the formation of the
8 R. Alexy, Teora de los derechos fundamentales (1986), Madrid, Centro de Estudios Constitucionales, 1997. 9 R. Dworkin, Taking Rights Seriously (1977), London, Duckworth, 2004; R. Dworkin, Laws Empire, Belknap Press, Cambridge, Mass., 1986; G. Zagrebelsky, Il diritto mite. Legge, diritti, giustizia, Torino, Einaudi, 1992. 10 See generally N. Bobbio, Il positivismo giuridico, cit., pp.13 ff.; G. Tarello, Storia della cultura giuridica moderna. Assolutismo e codificazione del diritto, Bologna, Il Mulino, 1976; P. Cappellini, Systema iuris, 2vol., Milano, Giuffr, 1984-1985; M.G. Losano, Sistema e struttura del diritto, 3vol., Milano, Giuffr, 2002.

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modern state. The jurists were fully aware that a complex process of monopolisation of the law-making power by the state had taken place11. The process was indeed complex, as Bobbio said, and, from time to time the interests of its stakeholders (legal doctrine, legislature, courts) could conflict with each other. However, since the seventeenth century, the law has tended to become system by means of systematisations, codifications and constitutionalisations. At first, the concept of system corresponds to the natural law theorys ideal of order and rationality, then to the Enlightenment and liberal ideal of publicity and certainty of the written law, finally, to the constitutional ideal of changing the law lawfully. The creation of the liberal law state (Rechtstaat), its transformation into social state, the development of administration and governance, the adoption of rigid constitutions, are all processes though which the law increasingly regulates its own amendment in the course of time, by means of rules of change. These processes are at the basis of the idea of the law as a legal order: an independent, self-contained, self-regulating set of norms and authorities. 3.2. All this raises the issue to which I do not pretend to have the answer of the persistence of the cultural and institutional premises of the concept of law as normative system. 3.2.1. With regard to the doctrinal systematisation the precondition of the idea of the law as external system, systema iuris it is well known that todays legal science is no longer engaged in the construction of all-encompassing systems of norms. The creation of long and written constitutions has released it, to some extent, from the task of constructing the general principles of law. Even the construction of restricted, partial, sectional doctrinal systems is often frustrated by the frequency of the legislative reforms. Although less ambitious than the project of a general systema iuris, these systems (for instance, institutions of constitutional law, general principles of international law, rights and duties of the employer, etc.) are challenged by the rapidly changing law. In the doctrinal field, the traditional legal-dogmatic method aimed at the construction of systems comes under criticism for being too rigid and politically opaque. Today most of the legal doctrines task consists in commentary (description and critique) on legislation and case law an activity that cannot generate a system. Sometimes the legal doctrine relies on the existence of a systema iuris and resorts to systematic arguments, but most often it engages in teleological and consequentialist argumentations, and makes recourse to arguments apparently external to the system: pragmatic, political and even economic considerations. Moreover, the construction of systems is negatively affected by the growing importance of the case law within the systems of codified law. The case law develops locally, from case to case, and, depending on the system of courts, judge-made law can be highly decentralised. There may be well-settled case law on certain subjects but, generally speaking, case law tends to be contradictory and it can hardly be ordered in a system.
11

N. Bobbio, Giusnaturalismo e positivismo giuridico, Milano, Comunit, 1965, p.107.

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3.2.2. With regard to legislative codification a precondition of the idea of law as system of publicly knowable norms the developments of the law in the twentieth century lead toward the crisis of the code and the age of decodification: the end of the pre-eminence of the code due to the growth of administrative law, labour law, and sectional legislation12. Not by chance, as Max Weber noted, the anti-formalist criticisms of legal positivism (2.3.1) arose at the beginning of the twentieth century as a consequence of the legal practitioners interests, but also of the claims to material justice coming from modern mass democracy13. Those years witnessed the collapse of the political and social sit uation of normality upon which the normativity of the liberal state of law was grounded. The state of emergency became the rule14, necessity was said to be a source of law15, and the necessity of governing the political and social emergencies justified the creation of new governmental powers and exceptions to parliamentary statute law. The crisis of the liberal state, the birth of social law and emergency law jeopardised the idea of the law as ordered system of norms issued by a sovereign authority. The very idea of one sovereign authority became problematic. The multiplication of potentially conflicting authorities (social and institutional pluralism), as well as the permanent legislative reform process and the development of judge-made law, were all extraordinary obstacles to the possibility of conceiving the law as a system of norms. 3.2.3. Finally, the constitutionalisation process (here defined as the adoption of written constitutions) reinforces the idea of the law as a legal order (an independent, self-regulating legal system). However, the European integration process challenges this idea, as it broadens the divide between formal and material constitution, and puts into question the regulatory capacity of the constitutions16. The legal orders undergoing integration cease to regulate their own amendment in an exclusive manner and, if they stop being the sole masters of their internal dynamic, they also cease to be legal orders. Moreover, the general principles of European constitutional law become the object of an inter-judicial
N. Irti, Let della decodificazione, Milano, Giuffr, 19893. M. Weber, Economia e societ, III, Milano, Comunit, 1995, pp.191 ss. 14 W. Benjamin, Tesi di filosofia della storia (1940), in W. Benjamin, Angelus Novus. Saggi e frammenti, Torino, Einaudi, 1995, p.79: The tradition of the oppressed teaches us that the state of emergency in which we live is not the exception but the rule. As is well known, the systematic recourse to emergency measures during the political and constitutional crisis of the Weimar Republic had a direct influence on the developments of Carl Schmitts legal and political thought (see f.i. G. Balakri shnan, The Enemy: An Intellectual Portrait of Carl Schmitt, New York, Verso, 2000). Carl Schmitt, the theorist of the exception, was preeminently an anti-systematic jurist. 15 S. Romano, Sui decreti legge e lo Stato di assedio in occasione del terremoto di Messina e di Reggio Calabria (1909), in S. Romano, Scritti minori, I, Milano, Giuffr, 1990, pp.349-377. 16 D. Grimm, Una Costituzione per lEuropa?, in G. Zagrebelsky, P.P. Portinaro, J. Luther (eds.), Il futuro della Costituzione, Einaudi, Torino 1996, pp.339-367. See also L. Ferrajoli, Diritti fondamentali e sfera pubblica internazionale, in M. Salvati (ed.), Dichiarazione universale dei diritti delluomo 10 dicembre 1948. Nascita, declino e nuovi sviluppi, Roma, Ediesse, 2006, pp.193-214, with regard to the crisis of the constitutional paradigm, and G. Itzcovich, Teorie e ideologie, cit., pp.115 ff., with regard to the tendency towards de-constitutionalisation.
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dialogue taking place in a non-hierarchically structured system of courts. Principles can always be suspended when they conflict with other principles that, all things considered, best fit the case and ought to prevail. Balancing between conflicting principles entails the creation of flexible axiological hierarchies; as balancing is based on value judgements apparently external to the system, it implies an explicit self-attribution of moral responsibility by the interpreter. As a consequence of these processes, the systematic ideals of legality and legal certainty are constantly confronted by the ideal of equity and by the alleged beneficial uncertainty of the law. 4. Conclusions In order to answer the theoretical question about the law as a system of norms, we cannot just assume one or more concepts of norm, one or more concepts of system, and verify whether it is correct to qualify the law as a system of norms (1). Besides doing this, we must take into consideration what consequences derive from the classification of the law as a system of norms. If we aim at providing an adequate description of (our concept of) law, we cannot limit ourselves to just labelling the law as (non) system of norms, (not) subsuming the law under the concept of system of norms, classifying the law in one way or the other. In order to understand what it means that the law is (not) a system of norms, we must also appreciate the consequences of such a description. The consequences I have argued (2) concern to a great extent the meth od of legal science and its possible objects of knowledge. Indeed, if the law is not a brute fact, an empirical observable object, but is an institutional fact, a social practice, then we can maintain that the law has no reality independent of the way it is known and practised. It fallows that the theoretical questions such as what is (our concept of) the law, the legal norm, the system? can be reformulated, and must be approached, as questions on the way in which the law should be known and used. The theoretical questions and the meta-theoretical (methodological and epistemological) questions must be distinguished not with the aim of dealing with them separately, but to pinpoint their mutual relations. I have maintained that it is possible to answer the question under what conditions can we speak of the law as being a system of norms?, only if there is a (persisting or expiring) legal method that knows and uses the law as a system of norms (3). In the absence of such legal method, the question is pointless and cannot receive any meaningful answer. If we know and use the law as a system of norms, then the operations per formed with the law are conceived of as being operations performed by the law. If the law is (known and used as) a system of norms, then legal decisions (judgments on the lawfulness, validity, legal relevance, etc., of certain facts and norms) are part of the law, are taken by the law, or at least on behalf of the legal system: if the law rules, the legal decisions do not originate from an authority
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external to the system. The law is a system because it distinguishes itself from the non-law. The law is not simply distinguished by an external observer: in the internal perspective of the participant, it is for the law and not for an external authority to determine what is right and what is wrong the content of the legal norms and their mutual relations. In order to assess whether the law is a system of norms, we must take into consideration the consequences entailed by the description of the law as a system. By saying this, I do not mean that we are entitled to deduce some theoretical conclusions on the nature of law from a judgement concerning the methodological desirability of the description of the law as normative system. Whether the law is a system of norms is not a moral issue, but neither is it an empirical issue, a question of fact. Whether the law is a system of norms is a conceptual question, a question concerning our concept of law, to which we can only answer by taking into consideration the preconditions and the consequences of the concept of law as a system of norms. I have tried to identify some of the social, cultural and institutional premises of the concept of law as system of norms, and I have argued that the concept bears some important methodological consequences. If, one day, the law were to stop distinguishing itself from the non-law, then the law would cease to be a system of norms. One may wonder whether that law will continue to be law in a way that is still comprehensible to us.

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