When the word "law" comes up in conversation, we almost instinctively identify it directly with laws, as if law were limited only to laws and their applications. However, for the legal scholar, laws are only one expression of law, called Legislative Law . In addition to this, there is Jurisdictional Law . This article will address the dichotomy between these two branches, exploring their distinctions and interrelationships.

Legislative Law: Concept and Historical Context

Legislative Law focuses on the study of legal norms, including those of national scope, such as the Constitution and sub-constitutional laws, and international norms, such as treaties and conventions. The main interest of Legislative Law lies in the way norms are created and how they are integrated into the country's legal system.

Since antiquity, the concept of Legislative Law began to take shape, with examples such as the Code of Hammurabi , the oldest known codification. However, it was in Ancient Rome that the systematic study of this law gained strength, especially during the pre-classical era, characterized by legal formalism, which required that the creation of norms follow ritualistic and established forms. This concern with legal forms inspired Western legal philosophy, although today the lack of formality in the creation of a norm generally results in invalidity, not in the non-existence of the act.

This field is explored primarily by positivist jurists, who consider law as the main source of law . Among positivists, Hart stood out by proposing the "norm of recognition" as a paradigm for identifying valid legal norms belonging to the legal system.

“(…). To say that a given norm is valid is equivalent to recognizing that it satisfies all the criteria proposed by the recognition norm and is, therefore, a norm of the system. In fact, one can simply say that the statement that a certain norm is valid means that such a norm satisfies all the criteria offered by the recognition norm. (…). (HART, 2009, p. 133).”

Jurisdictional Law: Origin and Philosophy

Jurisdictional Law is a more recent approach, emerging with the transformation of the State, driven by the "second wave" of human rights. This new role imposed positive responsibilities on the State, such as promoting culture and guaranteeing health and education, which led the Judiciary to assume a more active role in the interpretation and application of law, often filling legislative gaps with greater discretion.

Cappelletti observes that, in these new areas of activity, the Judiciary often has greater creative freedom, especially when the legislation is vague or imprecise:

(…). But, obviously, in these new areas opened to the activity of judges there will, as a rule, be room for a higher degree of discretion, and thus, of creativity, for the simple reason that the more vague the law and the more imprecise the elements of the law, the wider the space left to the discretion of judicial decisions also becomes. (CAPELLETTI, 1999, p. 42).

Jurisdictional Law, on the other hand, is a relatively new branch of law. Its object of study focuses on the creation of legal norms through the exercise of jurisdiction by individual judges and courts. The coining of this term is due to legal realists, who value the exercise of jurisdiction not only in resolving disputes but also in the application of law.

Although they are branches of law with distinct objects, both have one thing in common. Legislative Law and Jurisdictional Law study the creation of law, but while the former does so based on the creation of norms by the Legislative Branch and, in some cases, the Executive Branch, the latter studies the creation of legal obligations originating from judicial decisions of the Judicial Branch.

Historical origin and philosophical context of Legislative Law

It is difficult to pinpoint when the study of Legislative Law began, as legislation dates back to antiquity, exemplified by the Code of Hammurabi, which is the oldest known codification. However, there are no more systematic historical records regarding how it was written and interpreted, nor how the ancient Mesopotamians understood what constituted law.

A more systematic study of Legislative Law can already be found in Ancient Rome. From their earliest days, the Romans were concerned with the manner in which law was produced. As Moreira Alves narrates, Roman law, especially in the pre-classical era, was extremely formalistic; that is, for something to produce legal effects, intention alone was not enough—it was important that the person acted as ordered, observing the correct, ritualistic forms.

This observation of the forms for the creation of law has been incorporated into Western legal philosophy; however, unlike pre-classical Roman law, the non-observance of the form of production does not, as a rule, generate the non-existence of the act, but rather its invalidity. This differentiation, in addition to deepening legal study, also allows for flexibility in the creation of law, which is limited to private civil law. In other areas, however, flexibility is debatable.

This is the main field of activity of Legislative Law, the study of the ways in which abstract norms, which we call law, are created. The main scholars in this field are the positivists, who, in describing the social phenomenon of law, chose law as the main source of law and were concerned with describing it and how to determine its form of creation. 

One of these positivists is Hart, who posits the norm of recognition as the paradigm for considering a given statement as a legal norm and included in the legal system, or not, let's see:

(…). To say that a given norm is valid is equivalent to recognizing that it satisfies all the criteria proposed by the recognition norm and is, therefore, a norm of the system. In fact, one can simply say that the statement that a certain norm is valid means that such a norm satisfies all the criteria offered by the recognition norm. (…). (HART, 2009, p. 133).

Jurisdictional Law focuses on the study of the limitations and democratic legitimacy of the judge's creative power. Its objective is to evaluate the impact of judicial decisions beyond the specific case, including the creation of abstract norms that can be broadly applied.

Differences and points of intersection between Legislative Law and Jurisdictional Law

By analyzing the text itself, it is possible to verify that there are several differences between these branches of legal science. Starting with the object of study, while Legislative Law is focused on the legislative activity developed by the Legislative and Executive branches, Jurisdictional Law is concerned with the creation of law based on the jurisdictional activity developed by the Judicial branch.

The concerns of these branches also differ. Legislative Law adopts a formalist approach, analyzing the production of norms in terms of their conformity with constitutional rules. Jurisdictional Law, in turn, has a more political bias, focusing on the limits of the creation of law by the Judiciary and its democratic legitimacy.

Despite the differences, these branches of legal study have points of intersection. The creative activity of the judge is supported by norms created by the Legislative Branch, as is the case with article 4 of the LINDB (Law of Introduction to the Norms of Brazilian Law). In fact, the pinnacle of judicial creation in Brazil is granted by a norm enacted through the Legislative Branch, the Writ of Injunction, Law 13.300/2016.

Naturally, the subject matter covered throughout this article is vast and complex, making it impossible to fully encompass it here. Therefore, if you are interested in studying Legislative Law, I strongly recommend reading the articles on our blog: Legislative Process and Legistics : How does the proposal and processing of Ordinary Bills work?; Brazilian legislative process: what is it and how does it work?

References:

Roman Law, ALVES, José Carlos Moreira, – 20th Ed. – Rio de Janeiro: Forense, 2021.

Judges as Legislators , CAPPELLETTI, Mauro – 3rd Ed – Porto Alegre: Sérgio Antônio Fabris Editor, 1999.

The Concept of Law , HART, HLA – 5th Ed – São Paulo: Editora WMF Martins Fontes, 2021.

Pure Theory of Law , KELSEN, Hans – 10th Edition – São Paulo: Editora WMF Martins Fontes, 2021.