Legal Gaps and Conclusive Reasons

Theoria 68 (1):52-66 (2002)
  Copy   BIBTEX

Abstract

In his influential paper Legal Reasons, Sources and Gaps' reprinted in The Authority of Law (Oxford: Oxford University Press, 1979), Raz says that legal gaps only exist when law speaks with uncertain voice or when it speaks with many voices, but there are no gaps when law is silent. In this later case, rules of closure, which are analytically true, prevent from the occurrence of gaps. According to Raz, if there is a gap in a legal system, then both the claim that there is a conclusive legal reason to perform a certain action, and its negation are neither true nor false. Therefore, one of the Raz's most important contributions to the solution of the problem of legal gaps is to remark that legal discourse is not altogether governed by the principle of bivalence. However, philosophers often claim that the denial of bivalence leads to a logical inconsistency. If this claim were true, then Raz's solution to the problem of gaps would be seriously threatened. In this paper we show ‐ with the aid of a sophisticated analytical tool, i.e. von Wright's Truth Logic ‐ that the rejection of bivalence only commits us to accept the trivial conclusion that propositions can lack truth‐values. For this reason, Raz's paper can still be regarded as a good starting‐point for analyzing the relationships among norms, practical reasoning and legal gaps. However, we also show that in order to admit propositions which are neither true nor false, Raz's theses must be reformulated. Otherwise, the claim that there is no gap when law is silent would not be compatible with the rejection of bivalence.

Links

PhilArchive



    Upload a copy of this work     Papers currently archived: 90,616

External links

Setup an account with your affiliations in order to access resources via your University's proxy server

Through your library

Similar books and articles

Some Inconclusive Reasons Against ‘Conclusive Reasons’.Martin Curd - 1983 - Philosophy Research Archives 9:293-302.
Some conclusive reasons against 'conclusive reasons'.George S. Pappas & Marshall Swain - 1973 - Australasian Journal of Philosophy 51 (1):72 – 76.
Legal reasons: Between universalism and particularism.María Redondo - 2005 - Journal of Moral Philosophy 2 (1):47-68.
Conclusive reasons that we perceive sets.David MacCallum - 2000 - International Studies in the Philosophy of Science 14 (1):25 – 42.
The authority of law: essays on law and morality.Joseph Raz - 1979 - New York: Oxford University Press.
Reasons for action and defeasibility.María Cristina Redondo - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
Reasons, knowledge, and probability.Fred I. Dretske - 1971 - Philosophy of Science 38 (2):216-220.
Legal defeasibility and the connection between law and morality.José Juan Moreso - 2012 - In Jordi Ferrer Beltrán & Giovanni Battista Ratti (eds.), The Logic of Legal Requirements: Essays on Defeasibility. Oxford University Press.
Might there be legal reasons?Richard Paul Hamilton - 2004 - Res Publica 10 (4):425-447.

Analytics

Added to PP
2010-09-13

Downloads
55 (#259,775)

6 months
5 (#246,492)

Historical graph of downloads
How can I increase my downloads?

Author's Profile

Jose Juan Moreso
Universitat Pompeu Fabra

Citations of this work

No citations found.

Add more citations

References found in this work

No references found.

Add more references