THE IMPROPER EXPRESSION OF THE RULES AND THE FORM OF THE LAW

Abstract

This paper’s main objective is to find, by means of conceptual analysis of the book, what is the answer Fernando Atria gives in “La Forma del Derecho” to the two issues raised by the improper expression of the rules. Regarding the institutional issue, the judgers are the ones who must adapt the improper expression cases. Doing so is the paradigmatic way of exercising the judicature. Concerning the epistemic issue, Atria has no solution, which makes his model of judge unable to identify improper expression cases when they arise. In fact, this makes atrian judicature unable to distinguish itself from legislation. This article proposes, in regard to the institutional issue, to divide the idea of law applicability in two: formal applicability and institutional applicability. Moreover, concerning the epistemic issue, it postulates an indentifying criterion of improper expression cases from the infringement of legal principles.