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formal validity

Canadian Journal of Law & Jurisprudence (1)

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Modelling Fundamental Legal Change: The Paradox of Context and the Context of Paradox
Fabien Gélinas
Journal:

Canadian Journal of Law & Jurisprudence / Volume 28 / Issue 1 / January 2015

Published online by Cambridge University Press:

20 February 2015, pp. 77-96

Print publication:

January 2015
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The author takes the paradox of omnipotence faced by lawyers in the context of constitutional change as a starting point to explore the relationship between formal law, logic, and the “pragmatics” that inform legal reasoning. Self-reference in constitutions appears problematic because it has no representation in basic, first-order logic. But self-reference in the context of legal change effectively represents a time dimension that is essential to the practice of law. The dissolution of the paradox is then used to illuminate the relationship between formal law and the context in which it is embedded. The author concludes with a nuanced understanding of law as a semi-open system in which judges play the key role of translating fundamental constitutional change into the law’s “internal” point of view.