Hostname: page-component-586b7cd67f-2plfb Total loading time: 0 Render date: 2024-11-27T11:09:09.486Z Has data issue: false hasContentIssue false
  • English
  • Français

Applicability of Legal Norms

Published online by Cambridge University Press:  20 July 2015

Pablo E. Navarro ,
Claudina Orunesu ,
Jorge L. Rodríguez  and
Germán Sucar
Get access

Extract

It is a basic intuition about the law that organs of adjudication ought to justify their decisions by recourse to the appropriate applicable norms. Nevertheless, a sound reconstruction of the applicability of legal norms has been largely ignored in contemporary legal theory. Different connections between applicable norms and cases are explored in this paper, and a distinction is suggested between internal and external applicability. A legal norm is internally applicable to the cases regulated by its scope of validity (i.e. by its terms the norm fits the facts of the case), and is externally applicable when it has to be used in a certain case as a justification of an institutional decision (i.e. the presiding judge has a legal duty to apply it to the case). A usual claim holds that all and only valid norms which, by their terms, apply to the case at hand must be applied in determining the outcome of the case. However, we try to demonstrate that a valid legal norm that exists as a member in a legal system may be internally applicable to a case and yet not be externally applicable to it. It also may occur that judges sometimes have the legal duty to apply norms that are not part of their own legal system. Consequently, the relations between internal and external applicability and between external applicability and validity deserve a careful examination. In these pages we hold that, though validity plus internal applicability is neither a necessary nor a sufficient condition of the duty to apply a legal norm, there is a complex conceptual link between external applicability and the systematic reconstruction of the law.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 17 , Issue 2 , July 2004 , pp. 337 - 359
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2004

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

We wish to thank an anonymous referee for helpful comments and critical remarks. We also thank Stanley L. Paulson for helpful suggestions on a draft of the paper. This investigation was supported by a research grant from Fundación Antorchas (Argentina).

1. MacCallum, Gerald, “On Applying Rules” in Singer, Marcus & Martin, Rex, eds., Legislative Intent and Other Essays on Law, Politics, and Morality (Madison, WI: University of Wisconsin Press, 1993) at 68–69 Google Scholar.

2. MacCormick, Neil, Legal Reasoning and Legal Theory (Oxford: Oxford University Press, 1978) at 53.Google Scholar

3. See Raz, Joseph, “The Problem about the Nature of Law” in Ethics in the Public Domain (Oxford: Oxford University Press, 1994) at 179.Google Scholar

4. See, for example, Day, Patrick, “Procedural Equality: A Reply to Mr. Ingram” in Guest, Stephen et al., eds., Equality and Freedom (1985) 21 Archiv für Rechts und Sozialphilosophie 59 Google Scholar.

5. For a thorough discussion of the distinction between internal and external applicability of legal norms, see Juan Moreso, José & Navarro, Pablo E., “Applicability and Effectiveness of Legal Norms” in (1997) 16 L. & Phil. 201 Google Scholar. Internal applicability is related to very important issues of contemporary legal philosophy such as the defeasible character of law and the rule-following problem. Although the relevance of these questions is beyond dispute, they will not be treated in this paper for we are confining our investigation to the relations between the external applicability of legal norms and their membership in a legal system. For that reason, in what follows, the ex Pression ‘applicable norm’ will be used to refer to externally applicable norms alone, and the ex Pression ‘internally applicable norm’ will refer to a norm which regulates a certain case.

6. In order to restrict our universe of discourse, we analyze the applicability of legal norms only from a positivistic point of view. Studies on the applicability of legal norms have been largely neglected within legal positivistic tradition. A remarkable exception is Waluchow, Wilfrid, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994).Google Scholar

7. External applicability resembles what Waluchow calls institutional force. See ibid. at 39. Indeed both external applicability and institutional force can be regarded as a conceptual reconstruction of the binding nature of legal norms within a positivistic framework. Institutional force is, according to Waluchow, a function of the legal power of a person (if any) to modify the existing law to nullify its effects regarding certain decision. Thus, a legal norm would lack institutional force for a judge if she has the legal power to change what it states. However, in his reconstruction of this property Waluchow assimilates these three alternatives that in our view, need to be clearly distinguished. The rules of adjudication of a legal system can grant a judge: a) the power to change the existing law, incorporating a new general norm to replace or modify the previous ones; b) the power to decide the case at hand applying norms that do not belong to the legal system, without changing the law; or c) the power to refrain from applying a norm that belongs to the legal system, without this meaning its elimination from the system.

8. See Studiniki, Franciszek, “On Institutional Decisión” (1971) LVII/4Google Scholar Archiv für Rechts und Sozialphilosophie authors: give FIRST PAGE Quoted by Caracciolo, Ricardo in El Sistema Jurídico. Problemas Actuales (Madrid: Centro de Estudios Constitucionales, 1988) at 74.Google Scholar

9. Waluchow, supra note 6 at 49-50.

10. See Schauer, Frederick, Playing by the Rules (Oxford: Clarendon Press, 1991) at 119.Google Scholar

11. Munzer, Stephen, “Retroactive Law” (1977) VI J. Legal Stud. at 387.Google Scholar

12. See Raz, Joseph, “Legal Validity” in The Authority of Law (Oxford: Oxford University Press, 1979) at 149.Google Scholar

13. Waluchow seems to defend this thesis when he says: In short, one can accept that a norm is a norm of law only if (though not necessarily if) it has some degree of institutional force for all judges within the legal system…. See supra note 6 at 78. Though Waluchow appears to be denying the same tenet when he claims that a valid standard can lack institutional force or to have its institutional force overcome in some way by a competing standard (see page 174).

14. Munzer, Stephen, “Validity and Legal Conflicts” (1973) 82 Yale L. J. 1140 at 1149–50.Google Scholar

15. Ibid. at 1157-58.

16. See Dworkin, Ronald, Taking Rights Seriously (London: Duckworth, 1977) at 24.Google ScholarPubMed

17. See ibid. at 37.

18. See Munzer, , supra note 14 at 1158.Google Scholar

19. The example was presented by Bulygin, Eugenio, “Norms and Logic. Kelsen and Weinberger on the Ontology of Norms” (1985) 4 L. & Phil. 145.Google Scholar

20. Alchourrón, Carlos & Bulygin, Eugenio, Normative Systems (Wein/New York: Springer Verlag, 1971) at 28.CrossRefGoogle Scholar

21. See, for example, Twining, William & Miers, David, How to Do Things With Rules, 3rd ed. (London: Weidenfeld and Nicolson, 1991) at 280ffGoogle Scholar

22. Alchourrón & Bulygin, supra note 20 at 29.

23. It is worth emphasizing that “jurisdictional cases” has to be interpreted as individual cases according to their description within a judicial process, with all the constraints concerning evidence imposed by the pertinent secondary rules of the system.

24. See Bulygin, Eugenio, “Time and Validity” in Martino, Antonio, ed., Deontic Logic, Computational Linguistics and Legal Information Systems (North Holland-Amsterdam-New York-Oxford: North Holland Publishing Company, 1982) 65.Google Scholar

25. See ibid.

26. For a criticism of this idea see Mendonca, Daniel, Interpretación y aplicación del derecho, (Almería Spain: Universidad de Almería, 1997) at 63.Google Scholar Bulygin’s notion of applicability could be extended to cover cases in which it is permitted to apply a certain norm to certain case, i.e., judges are not under the obligation to apply a certain norm. For the sake of simplicity, we omit this complication.

27. Another concept of inapplicability will be considered infra section 5.

28. See Wright, Georg Henrik von Norm and Action. A Logical Enquiry (London: Routledge & Kegan Paul, 1963) at 196.Google Scholar

29. See Guastini, Riccardo, “Normas Supremas” (1995) 17-18 Doxa - Cuadernos de Filosofía del Derecho 257.Google Scholar

30. Alchourrón, Carlos & Bulygin, Eugenio, “The Ex Pressive Conception of Norms” in Hilpinen, Risto, ed., New Studies in Deontic Logic (Dordrecht-Boston-London: Reidel, 1981) 95 at 115.Google Scholar

31. See Dworkin, supra note 16 at 27.

32. Hart, H. L. A., The Concept of “Law 2nd ed. (Oxford: Oxford University Press, 1994) at 261-62Google Scholar.

33. See ibid. at 107.

34. Redondo, María Cristina, “El carácter práctico de los deberes jurídicos” (1998) 21-II Doxa - Cuadernos de Filosofía del Derecho at 355.Google Scholar

35. von Wright, supra note 28 at 196-97.

36. Raz, Joseph, “Legal Reasons, Sources and Gaps” in supra note 12 at 68–69.Google Scholar