Law becomes positive when norms are subjected to norms

Evidence

We find another example in the setting of norms for expectations of behaviour. There is a persistence of expectations even if they are disappointed, and this too originates purely as a by-product of living in a social community. Norms which are created in this way gain their stability by means of projection back into the past. Old law is good law, and its normative status is completely divorced from human invention. Here too innovation is first set in motion by reflexivity, and here reflexivity means that law becomes positive law. If, and in so far as, law can be set, norms must themselves be subject to norms. A system must create for itself a complex of formal controlling norms, for example, in the form of a ‘constitution’, which regulates procedure and provides an abstract pre-selection of permissible legal norms. — Niklas Luhmann, Trust and Power, 250

Categorization

• DEFINE: Distinguishes customary law (stability through projection into the past) from positive law (norms subject to norms, e.g. a constitution) — a key Luhmannian concept.
• XREF: Positivity of law parallels the reader’s Giddens comparison: faceless commitments rest on institutionalized ‘reflexively monitored’ expert systems rather than tradition. — connects to: The positive-normative split is a vehicle for exporting disciplinary values — Douglas A. Kysar, Regulating from Nowhere: Environmental…, 582