The word « procedure » in its compendium will certainly include applications. The scope of the « procedure » itself has been taken into account by judgments of the Court of Justice. (2) « The term `procedure` is a very broad term which generally refers to a procedure prescribed for the enforcement of legal rights and therefore necessarily includes the steps necessary for the institution of legal proceedings. » « An `action`, in the legal sense of the term, is a procedure by which a party seeks to assert a right against another party or to prevent the commission of injustice by another party. More succinctly, it can be said that it is « the legal requirement of a right » or « the way to pursue a right of decision ». It implies the existence of an alleged right, an alleged violation of that right (real or threatened) and a court empowered to enforce that right. The pragmatic application of the law presupposes conceptually – as my definition makes clear – the inferential application of the law. But there is more to be said about the relationship between the two species. Inferential application (for written provisions): To apply a provision p (by itself) to object x means to conclude c about x on the grounds that (a) p applies to x and (b) if p applies to x, then c is legally true. Footnote 6 In Khan v. General Medical Council, footnote 5, an Asian physician appealed the decision of a labour tribunal. The General Medical Council had denied him full admission as a physician; After an unsuccessful appeal to a jury, he complained to the Labour Court for indirect racial discrimination under section 54(1) of the Race Relations Act 1976.
The Arbeitsgericht dismissed the action under Paragraph 54(2); and the Employment Appeal Tribunal ruled in Khan that it was the right decision. Middle English aplien, applien « connect, combine, use for a specific purpose, insert (an expression, a word), strive (do something) », borrowed from the Anglo-French aplier, apply « use or operate, attach to oneself, conform, fold » (continental Middle French apploier, apply « occupy, insert »), back to Latin applicÄre « to put in contact (with), nearby, to carry, to make applicable or relevant (to) », of ap- ap- entry 1 + -plicÄre « fold, fold » to more on the entry of layer 3 Third, there are questions about the content of the application of the law. Is « law enforcement » the name of a particular type of act? If so, what are its distinguishing features? If not, what happens? There are also things that the courts are required to do — the decisions they are supposed to make — by applying the law. Are they legal acts themselves? I have deferred consideration of the indirect purpose and content issues because, as I have explained, they may receive different responses depending on the type of enforcement we have in mind. What I have just said in section V on the concept of case shows that this is true for the indirect purpose of the application of the law. The indirect object of the inferential application of the law is a « case » only in that first empty sense of the word. As we have seen in section II.E, this is any subject matter x such that the applicability of part of the existing law to x depends on whether a particular statement concerning x is legally true. That is what a court will apply the law to in an inferential manner. Pragmatic application of the law, on the other hand, is the application, not but in a case or in the decision of a case – but in a different sense from « case ». As far as the content of any form of application of the law is concerned, this is exactly what the definitions I propose claim to characterise.
Nor can the application of secondary legislation be reduced to a pragmatic application of the law. The idea here would be that if, as I have proposed, the inferential application of the law is tantamount to the performance of an intellectual act, it could fall within my definition of pragmatic application of the law if it has a reasonably broad interpretation of the term « act ». But even that would not be enough. The pragmatic application of the law amounts to the performance not only of an act, but of an act that the representative considers legally justified on the basis of existing law; And it never applies to the mental act of reaching a conclusion about an object on the basis of existing law. Perhaps it is true that Denning in The Hollandia should have concluded that the bill of lading clause was legally null and void. But the mental act of reaching this conclusion is not in itself an act that can be justified by reference to the applicable law. Rather, it is justified by reference to substantive (and logical) considerations that determine how courts should rely on applicable law to reach conclusions on certain matters, such as clauses in bills of lading.
