Abstract

This chapter argues that the notion of a ‘permissive’ source of law cannot be made sense of and should be discarded; and that the more general, metaphorical notion of a ‘source’ of law is not particularly valuable and might well be discarded too. Several authors suggest that the distinction between ‘permissive’ and ‘mandatory’ sources is purely deontic; that both are ‘sources’ of law in the same sense. This suggestion, this chapter argues, is untenable: the former must be ‘sources’ in a different sense, one that refers to certain recognized ‘good reasons’ for decision rather than to ‘sources of law’ proper. They are not ‘permissive’ either, since, if they are (as is also often claimed) sources of practical reasons, they are not normatively inert and cannot be permissibly disregarded. In any event, the deontic contrast is ill-drawn, for there can be ‘source’-based reasons for decision that, while not (‘formal’) ‘sources’ of law, courts are legally bound to attend to, as well as (‘formal’) ‘sources’ that, though relevant and applicable, courts are not bound to apply. It is arbitrary, then, to isolate, conceptually, only putatively ‘permissive’ source-based reasons for decision; and arbitrary, too, to isolate any such ‘source’-based reasons from merit-based ones. So-called ‘permissive’ sources should instead be understood in terms of epistemic rather than practical reasons. As to the general notion of a ‘source’ of law, it is unhelpfully ambiguous: it has at least four candidate readings. The chapter ends, partly tongue-in-cheek, by offering a better metaphor for law: fashion design.