On the Theory of Legal Sources. A Continental Point of View

Strictly Institutionalized Sources of Law: Some Further Thoughts

“…Guastini would like me to have adopted the approach to jurisprudence exemplified in “ ‘formal’ or “structural” analysis of legal systems as developed in continental “general theory of law” (Guastini 2007, 303). He would like me to have developed a “ ‘general’ theory of legal sources that [holds] for most contemporary developed legal systems” (ibid.).…”

“…Some of Guastini's comments about Volume 3 seem to me to have their basis in a misunderstanding about the aims of the first five volumes of the Treatise . As Guastini correctly notes, my concern in volume 3 is to investigate the narrow concept of “strictly institutionalized source of law.” Guastini thinks that “the importance of such a notion is not clear” (Guastini 2007, 305). He also chides me at the end of his comments for ignoring issues of “legal interpretation, gaps in the law, and normative conflicts” (ibid., 308) as they might bear on the topic of sources of law.…”

“…The thought behind Volume 3, then, is that there should be a legal‐scientific analysis specifically of how norms become law strictly through the operation of legal institutions. Sources of law speaking generally are, as Guastini rightly says, “law‐producing acts” (Guastini 2007, 304). The Treatise project acknowledges the heterogeneity of such acts, and accordingly different kinds of such acts are assigned to different authors.…”

What Is “Law,” if “the Law” Is not Something that “Is”? A Modest Contribution to a Major Question

“…Adopting the terminology used by Guastini, a court lacking the express authority to make law (such as a civil law court or an inferior court in a common law country) would ordinarily provide “individual prescriptions” to the parties, and at least through adding to the context of the legal rule being applied, provide “general prescriptions” amounting to a source of law (Guastini , 304).…”

Legal Scholarship as a Source of Law

“…For the objection that Shiner's account is not comprehensive enough, see Guastini 2007. Shiner replies in Shiner 2007 other law-making and law-applying agents.…”