Raz on Gaps — The Surprising Part

Abstract

In English law, there are various ways in which contracts can be invalid or unenforceable because they are immoral — and yet English lawyers know that many contracts are conclusively binding. The first two sources of legal gaps that Joseph Raz identifies do not seem so surprising. Vagueness in the sources of law leads to gaps in borderline cases, and there is a gap if the law includes inconsistent rules, with no way of deciding which is effective. In those situations it seems right to say that the law does not tell people where they stand, so that people may need a court to make a decision. But if Raz is right about the third source of gaps, then judges have discretion whenever the law appeals to moral considerations. This chapter argues, to the contrary, that judges have discretion only to the extent that such moral considerations are vague. It also argues that this conclusion is compatible with Raz's 'sources thesis'.

Keywords: Joseph Raz, contracts, sources thesis, judicial discretion, moral considerations, contract law, social morality, judges