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Old 11-20-2008, 06:51 AM
Posts: n/a
Default Re: Even Further Beyond the Hart-Dworkin Debate

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”. Itzik Basman[/QUOTE]

I am not a lawyer and I have only a superficial acquaintance with the doctrine of legal positivism, but I simply cannot see how a "precedent shattering decision" of the Supreme Court can be understood on the basis of a doctrine that forbids appeal to first principles, or morality, or natural law, or whatever you want to call the fact that citizens have moral reasons for "consenting" to a particular form of government, and therefore (if consensus means anything) the moral right to withhold their consent. If the Constitution ultimately rests on some kind of a "consensus," and if that consensus itself has its foundation in certain natural law doctrines of the 17th and 18th centuries (which were by no means universally accepted at the time), then surely the learned judges of the Supreme Court (well...with some notable exceptions past and present) cannot be legal positivists?
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