Book Title: Jurisprudence in the Mirror: The Common Law World Meets the Civil Law World

Publisher: Oxford University Press

Abstract: The focus of Pablo Navarro and Jorge Rodríguez on an idea of normative relevance is shown to be strongly connected to their promotion of the possibility of the systematisation of legal norms through the resources of deontic logic. Three strands of scepticism are brought to bear upon this prospect. A historical reference to common-law thinking as voiced by Sir Edward Coke raises preliminary doubts. A practical analysis of the disposition of particular cases undermines their model which depends on a deductive process from a ‘relevant’ factor found in a legal norm. A key distinction between legal materials and legal norms is introduced, and through careful consideration of three cases it is suggested that the judicial response to legal materials may (sometimes) be deliberative rather than deductive. A technical assessment of the authors’ approach is centred on the question of what amounts to an appropriate logic for systematising law. A severe restriction on the assumed scope of deontic logic is proposed, drawing on Bentham’s logic of imperation. The conventional acceptance of a logic of norm-propositions as providing a valuable part of deontic logic is questioned, through interrogating the ambiguity of the notion of norm-proposition across four different statements. And finally, the authors’ idea of normative relevance is shown to be artificially restricted so as to avoid acknowledging the presence of contestability within the factors taken to be relevant for a particular legal system. Admitting such contestability is viewed as radically changing the theoretical landscape, but not along civilian and common-law lines.