Geoffrey Samuel 162 7. Quasi-normative concepts This idea of les conceptsflous could well prove invaluable as one focal point for approaching the question of harmonisation. However, as far as the common law is concerned at any rate, rather than talking in terms of vague or fluid concepts it might be better to refer to notions such as fault, damage, interests and the like as ‘quasi-normative’ concepts, a description used by some other French jurists.These concepts are quasi-normative because, at one and the same time, they are both descriptive and partly normative. To say that one person has suffered damage as a result of the fault of another person is a descriptive sentence in that it can be viewed as a simple statement of fact; it is also capable of generating a legal claimin that the juxtaposition of fault, damage and causation goes far in most Western legal systems in acting as the basis for a damages claim by the victim against the person who was at fault.The notion of an interest is more subtle since to say that a person’s interest has been invaded is quite different fromsaying that his rights have been interfered with.'^^ Nevertheless, in Western systems, an interest acts as a half way house between the descriptive and the normative and so, for example, where one person deliberately invades the interest of another person, just as when one person intentionally causes damage to another, the lawwill usually think quite carefully before refusing a remedy. Equally where one person has a right to a legal remedy he may be refused access to the court unless he also has an interest in its enforcement."^"^ Pas d'intiret, pas d''action. Quasi-normative concepts act, therefore, as focal points within factual situations of all legal disputes and not only in respect of the qualification and analysis of the situations. When they are related to the institutions of legal subject {persona), legal object {res) and legal remedy {actio) they become the means by which one moves fromthe factual situation to the legal situation. In a codified systemthis legal situation is, as Ivanier says, to be found in its own abstract world.Thetexts of the codes are, or were thought to be, like axiomatic propositions existing simply as a rigorous and interrelating system of symbolic representations."^^ In the common law, on the other hand, the rules are rarely abstract. Indeed the whole notion of precedent is as much bound up with the material facts of a case as it is with any rule or principle and consequently the role of the jurist is to reason fromthese facts towards a normative ■*' P. Dubouchet, Sémiotique jKridique: introduction a une science du droit (Presses Universitaires de France, 1990), p. 145. ■*- See e.g., Khorasandijian v Bush [1993] QB 727; but cf. Hunter v Canary Wharf Ltd [1997] 2 WLR684. G. Samuel &J. Rinkes, Late ofObligations and Legal Remedies (Cavendish, 1966), pp. 66-71. Ibid., p. 29. And see e.g.. Nouveau code deprocedure civile art. 31. Ivainer, op.aL, pp. 13-17. R. Blanché, Le raisonnement (Presses Universitaires de France, 1973), pp. 219-220.
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