Introduction to Law

3.2 Rules, Operative Facts, and Legal Effects

Functions of Rules A common misunderstanding about law is that it consists of
rules that prescribe behavior. This is a misunderstanding for at least two reasons.
First, although it is possible to see the law as a collection of rules, this is only one
way of looking at the law. Another way to see the law would be as a form of
behavior of people who are especially involved in the law, such as judges,
legislators, and legal practitioners. Second, even if the law is seen as a set of
rules, these rules do not all prescribe behavior. In fact, by far, most legal rules do
not prescribe behavior. Earlier we already mentioned rules that give definitions and
rules that create competences. Still other rules create rights, describe procedures,
bring institutions to life, and probably do much more.

Structure of RulesAlthough there are many different kinds of legal rules, most of
them have in common the characteristic that they can be seen as having a condi-
tional structure. They have a condition part, which states when the rule is applica-
ble, and a conclusion part, which indicates what the consequences are when the rule
is applied.

The structure of rules is not always obvious from the literal wording of the rule. This is also

true for rules made by means of legislation or a treaty. Take for instance Book 1, Section 7.1

of the German Civil Code, which reads (if translated into English):

“A person who settles permanently in a place establishes his residence in that place.”

With some good will, the following conditional structure can be discovered in this rule:

Substantive private law Substantive public law

Procedural private law Procedural public law

Functional fields

of law

Fig. 3.1 Functional fields of law

40 J. Hage