The Influence of Normative Reasons on the Formation of Legal Concepts

Abstract

Legal concepts are an odd entity. While on the one side a key element of the law they are also embedded in ordinary language. So it is, at first glance, unclear whether they have a legal, a semantic or a dual nature. This background is particularly important for two questions which every legal system needs to answer. The first is which concepts to use. The second is how to define them. The answer to both questions is what I will call the formation of legal concepts. It is central for the understanding of how legal concepts emerge and develop. This paper will try to shed some light on it by asking whether it is influenced by normative reasons. From the outset it seems obvious that they play, at least, some role in the choice and definition of legal concepts. For what else could determine which concepts a legislator should choose and how he should define them? The definition of property, for instance, depends inter alia on considerations which kind of material and immaterial things he wants to protect. However, it is far from obvious that there are no other factors that play a role in it. Possibly, semantic laws are to be considered, too. Moreover, even if normative reasons are decisive for the formation of legal concepts it is still an open question whether any normative reason can play a role in it or whether some kinds of them are excluded.