Legal Standards and Prescriptive Rules
Prescriptive Rules in Legal Systems
Definition
Prescriptive rules dictate conduct according to legal standards, forming the core of any legal order. These rules comprise eight key elements.
Elements of Prescriptive Rules
1. Character
A rule’s character depends on whether it mandates, permits, or prohibits an action. Deontic operators, such as Obligation (O), Permission (P), and Prohibition (F), define this character.
2. Content
Content represents the relationship between a case and its solution. Rules can concern actions (positive or negative, depending on agent intervention or abstention) or activities (continuous processes over time). Actions, linked to specific events and changes, are more relevant to rules than activities, which can be reduced to a series of actions.
3. Condition of Application
- Hypothetical Rules: These rules specify conditions for content creation, requiring additional inferred conditions. Example: “If anyone enters, close the window.”
- Categorical Rules: These rules directly state the conditions for their content’s application. Example: “Close the window.”
4. Authority
Authority refers to the agent issuing the prescription. Rules can be classified based on their authority:
- Theonomist vs. Positive: Theonomist rules originate from a supernatural authority, while positive rules are created by human authority.
- Heteronomous vs. Autonomous: Heteronomous rules are given by one agent to another, whereas autonomous rules are self-imposed.
The first three elements form the normative core, while the remaining elements further define the rule’s application.
5. Subject
The subject refers to the agents targeted by the prescription:
- Individual: Directed at one or more specific agents.
- General: Directed at an indeterminate class of agents (e.g., doctors, lawyers).
- Collective: Directed at a whole, perfectly identified class (e.g., “Everyone in this class should leave.”).
- General Disjunctive: Directed at either an individual or an entire class (e.g., “Some of you in the building must leave.”).
6. Time of Prescription
This element specifies the time and place where the rule applies (e.g., “Tomorrow, the library must be closed.”):
- Individual: Refers to a particular occasion (e.g., “Cinemas should be closed at 1 a.m.”).
- General Conjunctive: Refers to a class of situations where the prescription always applies (e.g., “Every night at 9 p.m., close the windows.”).
- General Disjunctive: The content should be fulfilled in any of the specified situations (e.g., “You can visit the library any day of the month.”).
7. Promulgation
Promulgation is the formal expression of the prescription using symbols, ensuring the recipient understands the requirement.
8. Penalty
The penalty is a threatened consequence for non-compliance, imposed by the regulatory authority.