Expressions of Rules and falsifiable Statements in the US Supreme Court’s Judgment Foster
Expressions of Rules and falsifiable Statements in the US Supreme Court’s Judgment Foster

Summary/Abstract: The point of departure for my investigation is represented by a set of observations contained in the most famous passage of the US Supreme Court’s Foster decision, a judgment that is seminal for academics and judges interested in the status of treaties in domestic order: (S1) A treaty is in its nature a contract between two nations, (S4) not a legislative act. (S2) It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra‐territorial; but is carried into execution by the sovereign power of the respective parties to the instrument. (S3) In the United States a different principle is established: Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. The objective of my paper is only to show that S4 is excluded by S1 not as a false statement. If I succeeded in the attempt to show that, in negative terms, S4 is excluded from a particular language‐game, i.e., Foster decision, not as a false statement, I think that it is not too exaggerated to claim that the results of this conceptual investigation attained the aim of obtaining punctual clarifications of the way legal language works in the seminal Foster case. However, the distinction between expressions of rules regarding the use of legal terms and statements that can and must be established as true or false is not relevant only for the self‐executing concept. On the contrary, we can detect this distinction in other judicial decisions and, in this sense, this paper may be of a more general interest.

• Details
• Contents