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Kelsen/Hart + Chess - Coggle Diagram
Kelsen/Hart + Chess
Kelsen: a legal order can make sense only if one presupposes its basic norm, the norm that grants validity to the entire system TOC P.62
Norms are “ought” statements, prescribing certain modes of conduct TOC p.62
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legal norms are essentially “ought” statements and, as such, they cannot be deduced from factual premises alone TOC p.62
There must be some kind of an “ought” presupposition in the background rendering the normativity of law intelligible. TOC P.62
Hart argues: the master norm is not a presupposition is a social norm, a social convention that people (mostly judges and other officials) actually follow, for Hart this was the RR TOC P.63
Chess
when players move the bishop, they follow a rule TOC p.63
The rule undoubtedly prescribes an “ought”; ”; it prescribes permissible and impermissible moves in the game TOC P.63
The rules of chess have a dual function: they constitute what the game is, and they prescribe norms that players ought to follow TOC p.63
But Green aruges the rules are conditional, you don't have to play chess TOC p.63
Thus, the rules of recognition actually point to the sources of law that “judges are legally bound to apply.” (This is argued by Green) tOC p.63
Surface Convention
These surface conventions of recognition are instantiations of deep conventions about what law in our culture is tOC p.64
Therefore, There are deep conventions that determine what law is, and those deep conventions are instantiated by the surface conventions of recognition that are specific to particular legal systems TOC p.64
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Lewis claims that conventions are social rules that emerge as practical solutions to wide-scale, recurrent coordination problems TOC p.63
Conventions, in other words, emerge as solutions to recurrent coordination problems, not as a result of an agreement, but as an alternative to such an agreements TOC p.63