Implicit Law and Adjudication in Hard Cases

Interpretive practices of courts and other adjudicative bodies indicate that the law of any community comprises not only (i) an explicit part that consists of enactments, judicial decisions, and settled legal practices, but also (ii) an implicit part which judges rely on in adjudicating novel issues not addressed by any part of the explicit law. Legal positivists have in general been resistant to recognizing implicit law, while natural law theorists have conceived implicit law in moralized terms. Both views appear to be discredited when checked against considered interpretative judgments. This lecture broaches a new way of conceiving implicit law by exploiting two analogies: (i) an analogy between implicit law and implied fictional truths – i.e. what are true in a work of fiction but are not explicitly specified as such by the author or artist; and (ii) an analogy between the interpretive principles that we rely on to generate implied fictional truths (what are often called “principles of generation” in philosophical aesthetics), and the principles that we rely on to construct counterfactual scenarios for a variety of purposes – e.g. in explaining and predicting each other’s thoughts and behavior, in our backward-looking moral emotions such as regret and relief. The two aforementioned analogical arguments suggest that the principles we rely on to generate implicit law are deep-seated and fundamental features of our psychological makeup. The overall implication that this paper teases out is that the implicit law of any legal system is neither a set of moral principles as natural law theorists argue, nor a set of principles that we agree on or manufacture as legal positivists conceive laws in general. Instead of being a product of human making, the implicit law of any legal system is likely a product of human makeup.