Application of Law

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But it is true that if you go ahead and actually get married, you will not perform another act of law enforcement; They simply exercise legal authority and make use of the freedom that comes with it. Footnote 11 Similarly, by the presumed application of a provision, I can conclude that I am legally required to pay you a certain amount of money; but by paying you, I do not apply the law: I am only fulfilling my duty. This would suffice in an argumentative manner, but only if neither (1) nor (4) in the more complex version of the argument were controversial in the context of the respective decision. In any event, the court should be prepared both to unpack and to defend the passage from the claim of applicability – premise (2) – to the request for duty in the conclusion; and the way to do that would be to clarify the substantive claim, which is the conclusion of the derived application of the provision to the clause. Footnote 8 In “Applicability and Effectiveness of Legal Norms,” Law and Philosophy 16 (1997) 201–219, pp. 203–207, Pablo E. Navarro and José Juan Moreso distinguish between the “internal” and “external” applicability of legal norms. The first term is intended to encompass what I called – in Section II, when I discussed the application of inference law – applicability at all; it is a conceptual relationship between a State governed by the rule of law and a particular individual case. (See also Pablo E. Navarro and Jorge L. Rodríguez, Deontic Logic and Legal Systems, Cambridge: Cambridge University Press (2014), pp. 126-129 On the other hand, “external” applicability is a normative term: to say that a standard N is externally applicable to a particular generic case C is to say in its definition that the application of N to individual cases that are cases of C, is required (or at least authorized) by another standard.

However, this is not subtle enough: their notion of external applicability – with its generic reference to the application of a norm, a concept they do not explore – obscures the distinction between inferential and pragmatic application of the law. It`s just the latter kind, I think, that they have in mind. Both this definition and that of the pragmatic application of the law (which will soon be proposed in section III.A) are intended to be analyses of the terms to be defined. So far, the discussion has attempted to identify characteristics that we, as competent users of these two concepts (although of course not under the names invented here for everyone) accept both types of legal application – and can now recognize after careful consideration. The following article does the same for the pragmatic application of the law. The proposed definitions aim to crystallize these characteristics in a clever formulation. Our discussion highlighted four main aspects of law enforcement in the sense we discussed – a meaning I would like to call inferential enforcement. First, applying the law inferentially means arguing in a certain way. Secondly, it is a matter of reaching a conclusion about an object x – any object. Third, it argues, in support of that conclusion, that a particular provision p is applicable to x with some consequence. And fourth, the conclusion is legally considered true. Or to put it more generally, the rule (or the principle, if that`s what it is) that courts should apply the law is not itself part of the law they impose on the courts for enforcement.

This is not to say that there cannot be a rule of law – which is part of existing law – that obliges the courts to apply the applicable law; a self-referential rule itself. But we would still need to know whether the courts should legally apply the existing law, including this rule: and if they did, the rule or principle that was so determined would not itself form part of the existing law. The pragmatic application of the law cannot therefore be explained by an inferential application of the law. (Not to mention, of course, that the application of secondary legislation, as I argued in Section II.D, is based on second-order claims of applicability, not on first-order claims indicating the content of everything that is applied.) I began this article by identifying three sets of questions about law enforcement: questions about what I called (a) its direct purpose, (b) its indirect purpose, and (c) its content. I left all three for the end, albeit for different reasons. The analysis focuses on the decomposition of the material into its components and requires the recognition of the relationships between the parts. It differs from the application in that the application focuses on retrieving the right abstraction to solve a particular problem. Law enforcement is, in a sense, a particularistic issue. What I mean is not that for every conclusion correctly drawn on the grounds that a determination is applicable to an object x, there is no true universal principle that encompasses all and only those aspects of x that are relevant to that conclusion – a principle that could be used to construct a conclusion, which would correspond to a scheme identical to that of the legal syllogism.

What I mean is that we – and the courts in particular – don`t even mentally deal with such principles (yes, one couldn`t even expect it), that we mentally deal with such principles, which are a necessary, typical or even minimally frequent step in our arguments or arguments towards such conclusions. We can say that it encompasses all the contextual parts of the existing law: any section of the positive law (or not positive, depending on what your legal metaphysics allows) as it exists at the time of application and which can be identified as such – within the framework of the existing law – regardless of any opinion on its applicability and application to any object (and also independently of any opinion on the normative law). Desirable to apply it pragmatically in each particular decision-making context of B.). It can be a provision, but also, for example, a set of provisions that are taken together, or a previous decision or custom – or anything that is considered part of the law according to the correct theory of what the law is. Pragmatic application of the law (for written provisions): Applying a provision p pragmatically means performing an act φ in such a way that: First, the representative who pragmatically applies a provision p need not be the same person who applied it to the object in question. As a general rule, of course, it will be the same judge or tribunal that applies a provision to an object x and draws the appropriate conclusion; and then apply that provision pragmatically by taking the action that supports that conclusion. But the two operations can fall on different entities. That seems to be the case, for example, where a national court of a Member State of the European Union refers a question of interpretation of EU law to the Court of Justice of the Union. The judgment of the Court of Justice may very well concern the secondary application of EU law – and is then used by the national court in the pragmatic application of the relevant law. Footnote 13 This is a complex two-step deductive argument. The first step – from (1) and (2) to (3) – is the argument which, as we have seen in Section II, corresponds to the derived application of the provision to the bill of lading clause.