On the Questions Concerning Legal Norm

The subject matter of the paper is the question of legal norm as regards its ontology and correlativeness. The conception of legal norm affects a concrete understanding of the concept of legal relation, subject's law, entitlement etc. In the theory of law there are several conceptions of legal norm: 1. Norm is a form of expression about some objective reality. 2. Norm is equal with a sentence stating the occurrence of some psychic states in the individual's psyche or in social awareness. 3. Norm expresses a psychic phenomenon, but it is not a proposition in the logical sense. It has an emotive meaning. In this view norms have no descriptive meaning and, semantically speaking, are close to exclamations. 4. Norm is an expression combining the descriptive statement of some facts with the expression of definite emotions. 5. Norm is an expression constituting part of the deductive system (J. Wróblewski). The most common thing is to distinguish the linguistic and non-linguistic conception of norm. The linguistic conception assumes that legal norm is a kind of normative expression. In the linguistic conception we distinguish cognitivistic and non-cognitivistic position. Cognitivism means that the normative expression is a proposition in the logical sense, therefore it is true or false. According to non-cognitivism, norms are not true or false propositions, but propositions of a particular kind. They sensations of the will, feelings or emotions that cannot be recognized. The linguistic conception assumes that norm is not a statement. Part of the theorists of law abandon seeking the ontically uniform conception of norm and assume the conception of so-called levels of the study of law. The typology of levels is made here, distinguishing the following levels: logical-linguistic, sociological, psychological, and axiological. The issue of correlativeness refers to the question whether each legal norm creates the legal relation, whose elements are entitlement and duty. It was L. Petrażycki who advocated this position. He calls legal norms obligatory-claims, ordering and attributing, imperative and attributive. Cz. Znamierowski and his disciple Z. Ziembiński criticized this conception. According to the latter author, not every norm creates the legal relation. The present paper discusses the tomistic position (M. A. Krąpiec). Law in this view is not a necessary relation, i.e. constituting human onticity. Law is a categorial relation placed in the human person, in whose action it is realized and concretized. This relation is founded on necessary relations. Norm, according to Krąpiec, is an intentional being. He negates Kant's position, who claims that there is not transition from being to obligation. In the state of things which is to become Krąpiec sees potential and dynamic reality. „This state of things which is to come true under proper conditions is an intellectually perceived value which can be expressed in the normative proposition”. I assume the linguistic and cognitivistic conception of norm. Otherwise, norms would be constructed „within the framework of our volitive-emotional activity” (A. B. Stępień). It is difficult to assume that the act of the will defines what is valuable or obligatory. On the contrary, norm is an act of reason aiming at the realization of the common good. Therefore, it is a purposeful act. Reasonable and teleological is then the legislator's decision as regards what goods condition the psychic and physical integrity of man and his development. Now on the grounds of the tomistic theory of law and its understanding as a relation Iassume the concept of legal relation as universal. I mean someone's obligatory behaviour isacorrelate of someone's duty. The legal relation is to realize the common good, the development of each human person, the realization of his or her potentiality. Important as they are, psychic experiences are something secondary and they cannot constitute an independent foundation for the understanding of the phenomenon of law