The Infuence of Normative Reasons on the Formation of Legal Concepts .

Abstract

Natural language does not provide the law with precise legal concepts. Therefore, these concepts have to be defined by the legislator or have to evolve over time both in legal practice and in scholarly debate. In order to understand this formation of legal concepts, it is necessary to look at the factors that are decisive for it. Besides semantic factors that impact this process, it seems possible that normative reasons can also play a role. This does not follow from the fact that these concepts themselves in part refer to normative entities such as moral reasons or moral principles. For one has to distinguish between the reasons legal concepts refer to and thereasons that are decisive for the formations of these concepts themselves. The latter reasons could concern other issues such as the ease and accuracy of using certain concepts. All of this does not imply that legal concepts should have a certain content. They could even, on the contrary, demand that ideological positions should not influence the content of legal concepts. In this case, one would have a normative reason not to make the content of legal concepts dependent upon further normative considerations. In addition, normative reasons can entail certain procedural requirements, which should be maintained in the process of concept formation. For instance, they might require to keep a once agreed upon definition open for revision. The fact that normative reasons can influence the formation of legal concepts in various ways does not justify the assumption that this formation is totally determined by normative or even political considerations. There are a number of constraints that prevent such a direct influence. For instance, as concepts should enable communication even between people with differing positions, they should not have a partisan character so that only one side agrees with them.