Lipstick law, or: the three forms of statutory law

ABSTRACT

Legal scholars often distinguish between de jure rules and de facto situations to explain certain legal situations. However, in some instances this distinction might obscure the legal understanding of these legal situations. In particular, the distinction leaves out often occurring instances in which there is a difference between formal, written law and (rule-based) policy actively pursued by the legislator, both when this is and is not publicly known. In the current article, I propose to replace the de jure/de facto understanding of the legal order by a new conceptual framework for the understanding of statutory law. I will argue that statutory law within the legal order can appear in three different forms: (1) written formal law, (2) law for the community and (3) non-public law.

KEYWORDS:

• Statutory law
• legal pluralism
• legal philosophy
• theory of law

Acknowledgments

I am very grateful for the useful comments on earlier drafts by R. Letschert, R. de Groot, P. Clark and J. Pronk. Thanks also to the comments of two anonymous reviewers. This article was made possible thanks to the generous financial support of over 200 donors to the Maastricht University Children's Rights Research Fund (https://www.ufl-swol.nl/en/fonds/childrens-rights-research-fund/).

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. To understand more about the socio-legal history of Rwanda leading up to the current form of government, I recommend to read Nigel Cantwell's UNICEF Innocenti report (1997). In the report, Cantwell explains and describes how after the 1994 genocide, the new government and the judiciary, amongst other socio-legal institutions, quite literally had to start from zero.

2. See for example the 2012 report by Haverman “The Hiil Rule of Law Quick Scan Rwanda”, in which the current de jure legal situation of Rwanda is described and compared to the current de facto situation (using data from several reports by NGOs, government, research institutions). These two taken together result in “positive trends” and “main challenges” in relation to the rule of law in Rwanda. In the context of international law and statelessness, Laura van Waas has criticized the de jure/de facto distinction (2008, 20–27).

3. Art. 34 of the Rwandan constitution guarantees freedom of the press and freedom of information. This is echoed in the 2009 Media Law, which states that “censorship is not allowed” (art. 17), “any journalist has the freedom to express opinions” (art. 16), etc. Article 17 does give a restriction, adding that although censorship is not allowed, expressing of opinions should not “jeopardize the peace of the general public and good morals”. Other restrictions concern sharing of confidential state documents if conflicting with issues of national security and national integrity (art. 14). However, Freedom House ranks 2013 press in Rwanda as “not free”, arguing that “in practice the Rwandan media remain[s] under tight government control” (see Freedom House 2014). Similar comments are made by, amongst others, Amnesty International and Human Rights Watch (see Amnesty International (2013) and Human Rights Watch (2017)).

4. Meaning: a structural analysis of law as a system of positive law (law created and annulled by acts of human beings). It studies the legal norms that are rules about how human beings ought to behave, instead of studying how human beings in fact behave (see Kelsen 1949/2005, 114, 162–163).

5. For a definition of “statutory law”, I follow Kelsen, who defines statutory law as “law created in a way other than by custom, namely, by legislative, judicial, or administrative acts or by legal transactions, especially by contracts and (international) treaties” (1949/2005, 115). As such I am stretching the semantics of “statutory law” so as to include any law created by the legislature, both written and unwritten, public and non-public. This probably takes the meaning of the concept back to its original meaning, see footnote 7 and 8.

6. The concepts of “legal order” will be used throughout this article. This will be considered semantically equal to the notion of a “legal system” as referred to by some cited authors.

7. Please note that, although in the legal order of the sixth floor the legislator is only one individual, the legislator of a legal order can include any number of people and institutions, up until including the whole legal community in a situation of a pure democracy.

8. See for example Gestel (2008) who describes the utopic idea that the relevant community of a state legal order knows its laws completely. According to van Gestel, there is a distance between law in the legal codes and law in practice (2008, 3). Ehrlich in this context argues that “[a] juristic science which conceives of law as a rule of conduct could not consistently have laid down a principle that men are bound by the law even though they do not know it; for one cannot act according to a rule that one does not know” (1975, 12).

9. Thomas Hobbes, for example, defines the family in a state of nature as a “little Monarchy”, wherein the dominion that parents have over their children is analogous to the dominion of the sovereigns over their subjects (1996/1996, 142).

10. See Searle, on the recognition of a social fact; in the terminology of Searle, the power of the sovereign is derived from the fact that the status function of the sovereign is accepted by the relevant community. According to Searle, acceptance in this context means anything from enthusiastically embracing to grudgingly endorsing. This also includes the situation in which someone finds himself helpless and unable to do anything about the situation in which he finds himself. Recognizing thus does not mean approval. Hate, apathy and despair are consistent with the recognition of what one hates, is apathetic about or despairs of changing (Searle 1995, 39–41; 2011, 8). To avoid confusion, I use the term “recognition”.

11. Where ‘justified belief’, following Kelsen, relates to the fact that the law is created by the legislator, receiving its validity from the constitution (basic norm).

12. Dutch Opium Law, art. 2b, 3b1.

13. Dutch Opium Law, art. 8j, 8k.

14. Dutch Opium Law, art. 9.

15. Dutch Opium Law, art. 11.1–11.3.

16. See for example Buruma (2007, 73–113). Buruma distinguishes “legal tolerance” and “cultural tolerance”. Tolerance as a legal concept, according to Buruma, “[o]rdinarily [..] means that administrative or punitive reactions are postponed if the perpetrator agrees to act according to precise instructions. In certain fields – for instance, environmental law – there exists something called a ‘tolerace order’ (gedoogbeschikking), which means that the local or provincial authorities promise to not punish for a certain period under certain conditions. Such an order is legally binding on the relationship between local authorities and citizens. However, it is not the same as a permit (and if the Public Prosecutor finds out, he is free to prosecute)” (85–86). According to the author, this system is clever from a pragmatic and especially from a rule-of-law perspective, because of the public character of tolerance as compared to secret tolerance in other legal orders (87). Legal pubic tolerance, then, in general is a category of law for the community, whereas legal secret tolerance would be a category of non-public law. Bruinsma (2003, 60) explains the Dutch practice of gedogen by saying that they apply to crimes without victims. In these cases, “the law in the books symbolically keeps up moral condemnation, while the law in action formulates a policy of non-enforcement”.

17. See Rijksoverheid (2015).

18. The example of Dutch gedoogbeleid illustrates that non-written law does not necessarily have to be orally communicated law (such as a direct verbal command by the legislator). Instead, there can be (non-formal) documents describing the law, without actually stating the non-written law, or recognizing the law as law. Such is for example the information on gedoogbeleid provided on the website of the Dutch government. It describes the workings of a non-written law, to which it implicitly refers. For example, its first line states that “Soft drugs are less harmful for public health than hard drugs. Coffeeshops are allowed to sell cannabis under strict conditions” – thereby referring to a non-written law which states that coffeeshops are allowed to sell cannabis. The document further lists these conditions. The same kind of documents explaining the workings of formal written laws can be found on the government website – usually these documents are used to turn complicated written formal law into law for the community.

19. Fisa Amendments Act of 2008.

20. For a discussion of corruption in relation to the legal order, see: Nuijten and Anders (2007). The editors argue that “[…] most important, we take distance from the commonly held view that corruption is simply the law's negation, a vice afflicting the body politic. Instead, we argue that corruption and the law are not opposites but constitutive of one another. Thus, we propose an approach that transcends binary oppositions and explores the hidden continuities between corruption and its antonyms law and virtue” (2). See also, amongst others, Schneider and Schneider (2005) on Italian governments “looking the other way” in relation to criminal activities of the Maffia; Shore (2005) on nepotism and corruption within the Eureopean Commission; Lazar (2005) on corruption on local and state level in Bolivia.

21. The recognition of the basic norm, and the resulting efficaciousness of my legal order, can be deduced from the fact that there is an operative law enforcement, and the fact that several people have already paid a fine for wearing the wrong color of lipstick.

22. Although elsewhere, Kelsen does indicate the possibility of unwritten norms of constitution in relation to customary law, in case the written constitution does not institute custom as a form of law creation and “nevertheless the legal order contains customary besides statutory law […] there must exist unwritten norms of constitution, a customarily created norm according to which the general norms binding the law-applying organs can be created by custom” (1949/2005, 126).

23. Boaventura de Sousa Santos writes about the meaning that Western culture attributes to writing as a ceremony and to the written product as expression of commitment. “It appears”, he concludes, “that the writing and the written are a rhetorical topos in our socio-legal culture”. This may explain the inclination of legal scholars to identify law with written formal (state) law (2002, 107–108). Allott in this context mentions “[…] the “black-letter” lawyers who see law as norms and rules in books […]” (1977, 3).

24. Of course there are many exceptions to this general practice in law schools. However, often when legal researchers do look further than written formal law to understand the law, they often pass by “statutory law” to look for “common law” or other forms of non-statutory law. For an overview of the history of legal research methods, see for example Claire Angelique, Vaughn, and del Carmen (2010); Sithigh and Mac (2012).

25. According to Bennion, “statute law” has a double meaning; “One meaning is law in statutory form, that is the body of enacted law sometimes referred to (inaccurately) as the statute book. I shall refer to statute law in this sense as “legislation”. The other meaning is the area of knowledge and skill concerned with the nature, functioning and interpretation of legislation” (2001, 7).

26. Allott describes how under English colonial rule all customary laws from different ethnic and religious groups (and therefore from different legal sources) were “being lumped together under the single title of “native customary law”, to which he sometimes refers to as “native law”. “This law was not recorded in writing; it was transmitted originally by word of mouth from the memory of the older to that of the younger generation called upon to observe and apply it”. He describes how the English colonizer started to record these “customary laws”, and wonders in this situation “why not go the whole hog, and call the new law a statutory one, which in truth it is?” (Allott 1984).

27. See, amongst others: Griffiths (1986, 3–4); Davies (2010, 805–806); Barzilai (2008, 396). For a critique of this debate in legal pluralism, see Tamanaha (1993); von Benda-Beckmann (2002).

28. See also: Griffiths (1986, 3–4), Merry (1988) and Pound (1910).

29. See also: Tamanaha (1995, 503–506).