What Is It to Apply the Law?

Abstract

This paper offers a jurisprudential account of law-application, and a model of the justification of law-applying judicial decisions. It considers three sets of questions. One concerns the direct object of law-application: when a court applies the law, what exactly is it applying? A second set of questions regards law-application’s indirect object: courts do not just apply the law; they apply it to something. To what, exactly? To cases? To facts? To the “facts of the particular case” before them, as the common phrase goes? Third, questions about the content of law-application. Is “applying the law” the name of a specific type of act? If so, what are its distinctive features? There are actually—this paper argues—two kinds of law-application: inferential law-application and pragmatic law-application, as the paper calls them. The former is analysed in Section 2, the latter in Section 3, and the relation between them in Section 4. Section 5 looks into the notion of a “case”, and Section 6 returns to the three relevant sets of questions.