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One of the critical questions of legal theory is that of legal irrelevancy, that is, under what conditions an event (E) is a legal or an extra-legal event. Under what conditions is it proper to apply the binary code of the legal system, lawful/unlawful, to E? The question is of obvious practical relevance, because it demarcates the boundaries of the legal system. To what extent should political questions be decided by the courts? To what extent should the executive be subject to legal constraints? Is there “a realm of political authority over military affairs where the judicial power may not enter,” as was the question in Rasul v. Bush. The starting point is that all legal restraints are legal self restraints. The legal system is autonomous in deciding which events constitute legal events and which do not. (This is merely a restatement of what we mean by a rule of law and an independent judiciary as its institutional corollary.) Logically, the coding of legal irrelevancy can be achieved by applying ternary logic that recognizes three (as opposed to two) values, namely lawful (L), unlawful (U), and irrelevant (IR), whereby IR means that neither L nor U apply to E. Alternatively, one could focus on the binary distinction between unlawful (U) and not-unlawful (not-U). Unlike lawful/unlawful, which is binary but not universal, the unlawful/not-unlawful distinction is binary and universal; the not-U category now captures both L and IR. Both solutions have significant shortcomings. It is exceedingly difficult to make a multi-valued logic (lawful/unlawful/irrelevant) operational; similarly, relying on unlawful/not-unlawful as the constitutive difference of the legal system would exclude from it all communications that specifically affirm the lawfulness of E (such as a declaratory judgment), which is awkward to say the least. The key to a solution of the problem lies in (i) recognizing that the IR category can simply be restated as neither L nor U, or not-(lawful/unlawful), and (ii) the recursive application of the lawful/unlawful distinction to itself, which requires a shift from the first-order observer perspective to that of a second-order observer. A first order observer (e.g., a judge) must decide whether E is lawful or unlawful. A second order observer (e.g., an appellate judge), however, can decide whether the application of the lawful/unlawful distinction to E by the judge was itself lawful or unlawful. If applying the lawful/unlawful distinction is lawful, then E is a legal event (irrespective of whether E is lawful or unlawful). If it is not, then E exists in a legally created legal vacuum. The vacuum is legally created, because it exists as a result of a (second-order) legal decision. Put differently, the second-order observer’s decision that applying the lawful/unlawful code to E would itself be unlawful, is not a decision about E; rather, it is a decision about the lawfulness of applying the lawful/unlawful distinction, that is, a legal decision about the boundaries of the legal system. Each and every exercise of judicial self restraint can be decoded in this manner, from constitutional law issues of executive privilege and political questions, to the mundane refusal of courts to engage in price regulation in antitrust cases.

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