Sources and Reasons

This chapter continues to develop an account of the general concept of a source of law. It does so by associating sources of law with content-independent reasons for action (a Hartian concept). Sources of law are things (such as documents and practices) systematically treated by judges as providing content-independent reasons for deciding legal cases one way or another. Hart’s notion of content-independence is revisited and defended from criticism. It is argued that content-independence should not be confused with peremptoriness, another important Hartian concept. A source of law may provide content-independent reasons for action that are not peremptory and, thus, are subject to being defeated by considerations pertaining to the (lack of) wisdom or soundness of the action prescribed by the relevant source. To the distinction between content-independence and peremptoriness another one is added, namely, the distinction between the use of a source and the enforcement of a norm. These two distinctions are crucial to understanding the difference between mandatory and permissive sources of law.