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Applicability of Legal Norms

Published online by Cambridge University Press:  20 July 2015

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

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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).

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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.

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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.

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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.

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