Law is a cultural achievement of humankind. It is subject to an evolutionary process in which a sense of right and wrong is developed, and the legal system as the end of this evolution is connected and continuously adapted to the conditions of human existence within a complex framework of social interaction. Essentially the main function of law consists in judging and sanctioning human behavior according to the judicial code of legal/illegal. It is possible to differentiate systems of law from an historical point of view depending on whether this function is intended to uphold and continue past customs or to steer the future.
Ancient and medieval systems of law are structurally characterized by a strong connection between law, politics, and morals; a case in point is the historical trial against Socrates (469-399 BCE). The law of those eras is deeply rooted in social customs and traditions. It is not so much the will of the lawmaker that determines what is right. What is right is primarily established by the authority of the judge, often personified by rulers themselves, who legitimize the law through their decisions. His point of view is principally directed toward the past as a time when conditions were right. And their verdict must uphold this continuity—old law is good law.
According to Georg Wilhelm Friedrich Hegel (1770-1831), legal thinking changed with the “invention” of subjectivity during the eras of the Renaissance and the Reformation. Individuals came to be seen as subjects who make themselves the persons they are. No longer did the demands of the past determine the life of an individual. Instead, individuals came to be defined by the tasks they choose themselves and their dedication to fulfilling them. But the joy of being the creative sculptor of one’s own biography, the “plastes et factor,” as Pico della Mirandola (1463-1494) fittingly calls it in his Oratio de Dignitate Hominis, is joined by worries about the future, a future that is essentially open and uncertain. Consequently, even today, the main task of law is to steer the future.
Temporality of Law
It has been obvious since the Enlightenment, or beginning of the Modern Era, that differentiations are made between law, politics, and morals. Living an upright life has increasingly become a question of outwardly obeying laws with no particular regard to moral considerations. The difference between making and enforcing laws has been institutionally reinforced. In general, the judge’s verdict has been given a legal framework and thus become much less dependent on the center of political power—due in part to the condition that decisions must be made promptly. Law will always be power oriented, but, thanks to its own normative nature, it also establishes a bond with the future in that general expectations of an individual’s behavior are stabilized—even though these expectations may be disappointed in individual cases. An essential factor that fosters this function of law is the construction of its own temporality.
Self-reflexivity is a prerequisite for this construction of law’s inherent time: Law exists, because it is valid—specifically as long as it is valid. Differentiating between natural and legal time is therefore relevant for the validity of law. For example, as long as law is carried out under the auspices of a particular ruler, the validity of the regulations is bound to the “lifetime” of that ruler. As a result, the effectiveness of a legal system decisively depends on whether it is possible to create and change norms according to its own legal rules, in other words, to separate them from a specific time period. This process is particularly evident, because there is usually no mention made about when the validity of legal norms ends. They are, in a certain sense, “timeless.” In some cases possible changes are even explicitly excluded, for instance by rhetorical expressions, such as human rights are “inalienable,” human dignity is “inviolable,” and the core of a constitution is valid “forever.” These examples make it clear how the normative nature of law tries to immunize itself against social changes, especially in the field of politics. From a legal perspective, it may not be possible to prevent rulers from violating human rights; but by no means should they claim to act in accordance with the law when violations are committed.
Positivity of Law
The construction of a legal time provides for law’s ability to structure its relationship to natural time: Legal validity means the present, which is differentiated from life’s unchangeable past but also from the open (and, in that sense, more or less uncertain) future. In this corridor of the present, legal norms can develop their own “history” but are also latently subject to becoming history by a stroke of the legislator’s pen as a result of their positive nature (i.e., by being recorded in a fixed, written form). Yet, seeing as their “time” is left to the will of the legislature, their history must be differentiated from the historical course of events. In effect, legal norms represent a particular moment in history that is highlighted in the course of time and conserved. Their changeability takes place in accordance with the given rules of law, in other words, in accordance with those norms that are higher and that determine the changeability of the individual legal norms. If that were not the case, norms could be changed at any time and would never develop a “timeless” effect.
The positivity of legal norms structurally guarantees a somewhat anachronistic character by welding past, present, and future under the conditions of law and creating a context that detaches itself from natural time. That is immediately obvious in the power of legal norms to call forth a specific future. They determine which behavior will be right and which will be wrong in the future. Of course, it is neither possible to know what the future will bring nor how individuals will behave, but it has already been established how their behavior will be judged legally. Following Immanuel Kant (1724-1804), this does not relieve individuals of their freedom to select their own goals and determine how they want to behave, but it requires everyone to respond to the law. Only with this common reference, which can be taken into consideration by evaluating the consequences of one’s own behavior, is it possible to establish a common present.
Law also reacts in a similarly selective way in regard to the past; for all that remains, from a legal point of view, is what the legal norms specifically deal with. Everything else is nothing but the preface to a case that plays no role in determining the actual verdict. On the one hand, the past is permitted only in accordance with legal proceedings and admissible evidence. On the other hand, the unchangeable nature of the historical past does not touch the legal past, because legislation can changed retrospectively.
Legal time is expressed in a number of regulations. The calendar, for example, can be of individual nature in creating time divisions or in differentiating between standard time and daylight savings time. Typically, law leaves the measurement of time up to the laws of time, but it also connects it with value judgments about the quality of legal persons (e.g., being of legal age) or legal relationships (e.g., obtaining possession by prescription). Furthermore, appointments or deadlines are also objects of legal value judgments, for instance, when “immediacy” is mentioned, meaning that the person in question is required to act without culpable delay.
A perfect example of an individual construction of legal time measurement is the “legal second,” a second that has no counterpart in natural time. It is purely an invention of law. Nevertheless, legal time is not completely unrelated to natural time, especially in regard to the omnipresent social problems of time. If law is to do justice to its function of binding and steering the future, it should always keep the conditional possibilities of legal behavior in mind: Things should be done on time. And that requires a worldly adaptation, a synchronization of law in connection with worldly situations, so that the rules can be followed within an appropriate period of time. Law itself should be “just in time.”
Oliver W. Lembcke
See also Democracy; Ethics; Evolution, Cultural;
Evolution, Social; Hammurabi, Codex of; Hegel, Georg Wilhelm Friedrich; Kant, Immanuel; Morality; Scopes “Monkey Trial” of 1925; Statute of Limitations; Time Management; Values and Time
Greenhouse, C. J. (1989). Just in time: Temporality and the cultural legitimation of law. Yale Law Journal, 98(8), 1631-1651.
Kirste, S. (2002). The temporality of law and the plurality of social times: The problem of synchronizing different time concepts through law. In M. Troper & A. Verza (Eds.), Legal philosophy. General aspects: Concepts, rights and doctrines (pp. 23-44). Stuttgart, Germany: Steiner.
Luhmann, N. (2004). Law as a social system. Oxford,
UK, and New York: Oxford University Press.