Does anything change because we discussed it here? I'm discussing it because I think it's interesting and I'm in a good mood which means I'm more open to different viewpoints. — Benkei
If the procedure isn't law, what binding force does it have? None whatsoever. — Benkei
It's not the process that matters, it's the performative act of one or more persons, their intent on the outward effects of those performative acts and the social understanding and acceptance of a community of that intent and effect. — Benkei
Such performative acts can certainly be a process, for instance where codification is concerned, but can be as "formless" as one person making a promise to another. — Benkei
Yes, precedents create law too. But when a judge applies a customary rule, the rule existed prior to the judge declaring it law. It was law before the judgment or the judge wouldn't have included it in his judgment. — Benkei
As to you question above, I would say that if there is a law with no means of enforcement, I'm comfortable saying it's not a positive law. If there is a means of enforcement, but it's rarely enforced, it's still a law. It's just not used often. An interesting example are the marijuana laws in the US and to some degree the immigration laws. The Code is abundantly clear that pot is illegal and immigration without proper documentation is illegal, but public policy is such that these laws are formally unenforced. I think it is a reasonable question to ask what the state of the law is regarding pot, for example, in Oregon where the federal law clearly declares it illegal but it is formally declared not to be enforced. — Hanover
↪Ciceronianus the White Then at least with regard to the Grundnorm we're in agreement. I hated it already in my first year of law school. Hart always made the most sense, for a legal positivist that is. — Benkei
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