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Old 11-19-2008, 06:04 PM
basman basman is offline
Join Date: May 2007
Posts: 648
Default Re: Even Further Beyond the Hart-Dworkin Debate

…How are the Supreme Court decisions that break from the past and don't seem to follow legal precedent or the letter of the law explained in the positivist's framework? Brian seems to say that it is unimportant. How are they unimportant since those decision have had a massive impact on society…

Isn’t legal positivism an account of law as it is exists, a reconstruction of law’s deepest structures driving all the way back to a rule of recognition, which discriminates between what is accepted into law and what is not, which rule of recognition itself rests ultimately on social consensus? I think that that goes to the distinction of law as such in virtue of its pedigree as opposed to its content and its relation to morality. Therefore, I think, if the SCOTUS makes a precedent shattering decision, or series of decisions, it or they will, presumably, be justified by conventional legal reasoning and hence will fit into a positivist conception of law. After all, for the Supreme Court, as opposed to lower courts, stare decisis is not absolutely binding, and there is a jurisprudence on when it can be departed from to “make new law”.

That said, I join most of the commentors in having greatly enjoyed, and having been greatly stimulated and educated by this diavlog, but not having understood it all on a first listen to.

One final thought for now on the argument that theoretical disagreements are of relatively less importance—such as in the case about the TVA and the little fish or whatever they were (the “TVA case")—because they are so infrequent, and the fetching metaphor of all legal disputes as a pyramid, at the top of which is theoretical disagreement: might not an answer to this argument be somewhat paradoxically to invert the metaphor? The theoretical disagreements, however infrequent, (in)form the ground on which the base of the pyramid sits, its theoretical foundations, so to speak.

For what is the theoretical account of the lower-pyramid-occupying decisions that are more easily resolved? Isn’t it in significant part the very notions that come into play at the top of the pyramid—which is quantitatively narrower but qualitatively broader than the pyramid’s base, the base being the entire universe of legal disputes. So when plain reading generates an absurd result, such as in the TVA case, some of the law’s essential presuppositions get thrown against each other, thereby illuminating some of the essential constituents of what the pyramid rests on. So, for example, in a liberal democracy, where reason (more than morality) must be taken to be at the very foundation of the rule of law, a necessary condition precedent for the rule of law, how could an absurd result ever be ascribed to the legislature, whether as a matter of statutory intent or effect?

Itzik Basman

Last edited by basman; 11-19-2008 at 06:07 PM..
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