Expressed and Unexpressed Norms. A Conceptual Analysis

Abstract

In the civil law world, legal systems are only partially composed by norms corre-sponding to the legal provisions issued by the legislator. Many norms are elaboratedby courts by means of specific forms of reasoning, which often include moral, social,and political considerations. However, the difference between these two kinds ofnorms are controversial in the literature. To address this issue, Riccardo Guastinisuggests that legislative norms can be seen as “expressed norms”, whereas judiciallaw making brings about “unexpressed norms”. In the paper, I discuss this distinc-tion and put forward a revised version of it, based upon a contextualist approach tosemantics and pragmatics.