Applicability of Legal Norms

Abstract

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.