On the Mode of Existence of Mute Law and the Inference of Cryptotypes

Abstract

AbstractA widespread thesis in the analytical theory of law is that norms exist as linguistic entities. Rodolfo Sacco is one of the authors who have most fruitfully insisted, on the contrary, that there is no necessary correlation between norms and language, not even in the specific context of law. He thus extended the conceptualisation of legal normativity well beyond the boundaries of language through the notions of cryptotype and mute law. This paper takes into account two alternative hypotheses to the hypothesis that norms exist as linguistic entities, which are respectively based on the concepts of deontic state-of-affairs and deontic noema. Both hypotheses are tested for their applicability to the phenomena investigated by Sacco under the notion of mute law, notably with reference to cryptotypes. The question is raised then of how the existence of cryptotypes can be inferred from behaviour. The paper emphasizes the role that can be played in this context by nomotrophic behaviour, that is, the behaviour that consists in a reaction to the violation of a norm.