Henrique Jerônimo Bezerra Marcos

This paper asks whether large language models (LLMs) can apply the law. It does not question whether LLMs should apply the law. Instead, it distinguishes between two interpretations of the ‘can’ question. One, can LLMs apply the law like ordinary individuals? Two, can LLMs apply the law in the same manner as judges? The study examines D’Almeida’s theory of law application, divided into inferential and pragmatic law application. It argues that his account of pragmatic law application can be improved as it does not fully consider that law application (and rule-following) is a shared, public practice collectively realized by members of a linguistic community. The study concludes that LLMs cannot apply the law. They cannot apply the law in the inferential sense as they have mere syntactic (not semantic) interaction with the law. They cannot apply the law in the pragmatic sense as pragmatic law application does not depend on a single agent, whether that agent is a judge, an ordinary citizen, or a non-human entity.

Fragmentation is out; general principles are in. After years of work on fragmentation, the International Law Commission (ILC) has concluded that international law is a legal system with interconnected norms. The ILC has now shifted its focus to the general principles of law. These principles are a wellspring of rights and obligations, help interpret sources, and guide legal reasoning. This paper focuses on the latter function; it argues that a framework of legal principles can contribute to the consistency of international law as the legal system par excellence for a globalised world. This manuscript begins by outlining how fragmentation is a paradox of globalisation and presenting the prevailing systemic view of international law. The paper then presents a reason-based scheme for reasoning with norms. It finishes by advocating for a framework of principles for legal consistency.