Applicability of Legal Norms

NAVARRO, ORUNESU, RODRIGUEZ, SUCAR

The Canadian Journal of Law & Jurisprudence

University of Western Ontario

Lugar: London, Ontario; Año: 2004 vol. XVII p. 337 - 360

0841-8209

The central concern of this paper is to analyze the correction and basis for the adoption of the so called 'Normal thesis', according to which the applicability of a legal norm is a function of its scope and membership to the legal system. ?Scope? is used here to refer to the cases regulated by the norm. In this sense, a norm is said to be internally applicable to the cases regulated by its scope of validity. In other sense, a norm will be said to be externally applicable when it has to be used to justify an institutional decision. The internal applicability of legal norms is related to very important issues of contemporary legal philosophy such as the defeasible character of law and the rulefollowing problem. And though the relevance of these questions is beyond any dispute, they will not be treated in this paper for we will confine our investigation to the relations between external applicability of legal norms and their membership to a legal system. We agree with the authors that it is necessary to elaborate a theory explaining the binding force of the norms that belong to a certain positive legal system as distinct from a theory concerning the criteria for the identification of that system. But furthermore, we intend to differentiate the institutional force of legal norms and their validity in the absolute sense. Our strategy will be to reconstruct the concept of applicability in order to vindicate the importance of the notion of institutional force of legal norms as distinct from the (possible) moral force of law.