Not all legally justified court decisions are law-enforcement decisions. But what courts should legally do depends in part – to a large extent – on existing law. If a court decision in a particular way correctly applies the law, this is sufficient to legally justify its decision. I have deferred consideration of the indirect purpose and content issues because, as I have explained, they may receive different responses depending on the type of enforcement we have in mind. What I have just said in section V on the concept of case shows that this is true for the indirect purpose of the application of the law. The indirect object of the inferential application of the law is a “case” only in that first empty sense of the word. As we have seen in section II.E, this is any subject matter x such that the applicability of part of the existing law to x depends on whether a particular statement concerning x is legally true. That is what a court will apply the law to in an inferential manner. Pragmatic application of the law, on the other hand, is the application, not but in a case or in the decision of a case – but in a different sense from “case”. As far as the content of any form of application of the law is concerned, this is exactly what the definitions I propose claim to characterise. Or, to put it more generally, the rule (or principle, if that is what it is) that courts should apply the law is not itself part of the law it directs courts to apply. 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 it would still be necessary to know whether the courts must lawfully apply the applicable law, including this rule: and if that were the case, the rule or principle thus determined would not itself form part of existing law.
The pragmatic application of the law cannot therefore be explained by the inferential application of the law. (Not to mention that, as I explained in Section II.D, the application of the right of inference is based on second-order claims of applicability, not first-order claims indicating the content of everything applied.) It can therefore be said that the pragmatic application of a provision means taking an act – adopting a decision – which is considered legally justified by reference to the provision. But “with reference to disposition” is still an opaque description: the link justifying itself, the link between determination and action, is what needs to be clarified now. As citizens, some authors note, we can deal with the law in different ways – we can obey it, keep it, break it, claim it, affirm it, etc. – but not entirely by “enforcing it.” Footnote 10 This is only partially true, as we know today: because we often enforce the law as private citizens. Let`s say you want to get married, but after recently getting divorced, you wonder if you can remarry so soon. So you read the relevant laws and you come to the conclusion that you can actually remarry. They applied – by inference – the relevant provision(s) to reach this conclusion.
A second set of questions concerns the indirect purpose of enforcement. The courts do not just apply the law; You apply it to something. Why exactly? Cases? By the way? To the “facts of the case”, as the common expression goes? We also say that a court applies the law in a particular case; and when it comes to deciding a particular case. Are they all the same? And what exactly does it mean to apply the law to a case? In fact, what is a “case”? Nor can the application of secondary legislation be reduced to a pragmatic application of the law. The idea here would be that if, as I have proposed, the inferential application of the law is tantamount to the performance of an intellectual act, it could fall within my definition of pragmatic application of the law if it has a reasonably broad interpretation of the term “act”. But even that would not be enough. The pragmatic application of the law amounts to the performance not only of an act, but of an act that the representative considers legally justified on the basis of existing law; And it never applies to the mental act of reaching a conclusion about an object on the basis of existing law. Perhaps it is true that Denning in The Hollandia should have concluded that the bill of lading clause was legally null and void.
But the mental act of reaching this conclusion is not in itself an act that can be justified by reference to the applicable law. Rather, it is justified by reference to substantive (and logical) considerations that determine how courts should rely on applicable law to reach conclusions on certain matters, such as clauses in bills of lading. Premise (2) is, of course, also presented as true; It is part of the same argument. But this is not (or at least not necessarily) legally presented as true. Perhaps, like the similar premiss in Denning`s argument, is advanced on the basis of the substantive grounds governing the applicability of Article 54 § 2 to the applicant`s complaint. How, then, are the relevant premises – both the claim of applicability and premiss (1′), which determines the consequence that the provision should have for a particular object if it applies to that object – justified in the context of arguments such as Denning`s? On the basis of reasons of a different nature and the way in which those reasons affect the particular subject matter at which the applicability of the provision is discussed.
