The powers of application

• Main Author: Atria, Fernando
• Published: University of Edinburgh 1999
• Subjects: 340
• Online Access: http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.650866

Since legal reasoning is reasoning on what is the law for a particular case, it presupposes a theory of law. The two are linked by the plausible proposition that the law applying organs have a (legal) duty to apply the law. The relations between the two is the subject of this thesis. The first chapter revisits the analogy, popularised by H.L.A. Hart, between games and law. The existence of games (belonging to the class of what I call 'autonomous institutions') shows that Hart's open texture thesis (<I>i.e.</I> his claim that no rule expressed in natural language's terms can fail to have an area of penumbra, and that this is the explanation for disagreement about what the law is for a particular case) had to be abandoned. I suggest in chapter 1 that legal disagreement is a normal consequence of the law being seen as (what is there called) a regulatory institution, since in regulatory institutions substantive reasoning has to be used to apply general norms to particular cases. This observation is open to a strong objection, namely Joseph Raz's authority-based argument for what he calls the source thesis. According to it, the law has to belong to the kind of things that can be understood and applied without using substantive reasons. In chapters 2 and 3 the thesis is first introduced and then criticised on the basis that it does not allow for legal disagreement. It is claimed that under the sources thesis, the application of the law would not be qualitatively different from the application of rules of games. Since they are different (this was the pre-theoretical observation), this amounts to a refutation (or to the beginning of a refutation) of that thesis. Chapter 4 discusses some of these issues in the light of concrete historical examples. I argue there that though Roman legal reasoning was formal to a remarkable extent, Romans did not think of their legal material as furnishing exclusionary reasons. I claims that it is sometimes difficult to make sense of the particular forms those formal arguments adopted, which at least to a modern observer seem to be based on the wrong kind of distinctions. It seems as though we are missing some important piece of information about how the Romans thought of the law.