4. It has been asserted that legal norms have still other qualities.
It has been said, first, that it belongs to the essence of a legal norm to be enforceable, or even to be enforceable in a particular way, by judicial procedure, governmental force.
If by this we are to understand that conformity can always be enforced, we are met at once by the great number of cases in which this cannot be done. When a debtor is insolvent, or a murder has been committed, conformity to the violated legal norms cannot now be enforced after the fact, but their validity is not impaired by this.
If by enforceability we mean that conformity to a legal norm must be insured by other legal norms providing for the case of its violation, we need only go on from the insured to the insuring norms for a while, to come to norms for which conformity is not insured by any further legal norms. If one refuses to recognize these norms as legal norms, then neither can the norms which are insured by them rank as legal norms, and so, going back along the series, one has at last no legal norms left.
Only if one would understand by the enforceability of the legal norm that a will must have at its disposal a certain power in order that a legal norm may be based on it, one might certainly say in this sense that enforceability belongs to the essence of a legal norm. But this quality of the legal norm would be only such a quality as would be derivable from its quality of being a norm, and would therefore have no claim to be added as a further quality.
Again, it has been named an essential quality of a legal norm that it should be based on the will of a State. But even where we cannot speak of a State at all, among nomads for instance, there are yet legal norms. Besides, every State is itself a legal relation, established by legal norms, which consequently cannot be based on its will. And lastly, the norms of international law, which are intended to bind the will of States, cannot be based on the will of a State.
Finally, it has been asserted that it was essential to a legal norm that it should correspond to the moral law. If this were so, then among the different legal norms which to-day are in force one directly after the other in the same territory, or at the same time in different territories under the same circumstances, only one could in each case be regarded as a legal norm; for under the same circumstances there is only one moral right. Nor could one speak then of unrighteous legal norms, for if they were unrighteous they would not be legal norms. But in reality, even when legal norms determine conduct quite differently under the same circumstances, they are all nevertheless recognized as legal norms; nor is it doubted that there are bad legal norms as well as good.
5. As a norm based on the fact that men have the will to see a certain procedure generally observed within a circle which includes themselves, the legal norm is distinguished from all other objects, even from those that most resemble it.
By being based on the will of men it is distinguished from the moral law (the commandment of morality); this is not based on men's willing a certain procedure, but on the fact that this procedure corresponds to the final purpose of all human procedure. The maxim, "Love your enemies, bless those who curse you, do good to those who hate you, pray for those who abuse and persecute you," is a moral law; so is the maxim, "Act so that the maxims of your will might at all times serve as the principles of a general legislation." For the correctness of such a procedure is not founded on the fact that other men will have it, but on the fact that it corresponds to the final purpose of all human procedure.
