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Old 11-24-2008, 04:58 AM
Tyrrell McAllister Tyrrell McAllister is offline
Join Date: Jan 2007
Posts: 121
Default Re: Even Further Beyond the Hart-Dworkin Debate

Originally Posted by Francoamerican
To the extent that I understand the debate between legal positivists and EVERYONE ELSE, it seems to me to boil down to a debate between those who are fond of tautologies (the law is the law by virtue of the fact that the law is the law) and those who think that laws exist for some purpose--the common good, justice, natural rights, morality, freedom, peace etc.--and that these purposes (should) determine both the content and the interpretation of the law
From what I gathered in this diavlogue, this looks like an unfair simplification of the positivist position, at least as Scott portrayed it. But I know almost nothing about legal positivism other than what I saw in this diavlogue.

At any rate, the impression I got was that the positivists think of lawyers and judges as being like umpires in a game of, say, baseball. Legislators, on the other hand, are more like the official bodies that write the game's rules (MLB or whatever, I don't really follow professional sports). The analogy carries over on a couple of points.

First, although it is tautological to say, "The rules of baseball are the rules of baseball.", it's not tautological to say, "The rules of baseball are whatever entities X, Y, and Z say they are." The second assertion is something that an umpire could actually use as a guide to making calls during games. It seems to me to be more analogous to what legal positivists are trying to do.

Second, consider that we don't want umpires to be making their decisions based on whatever will entertain the crowd the most. The umpire should look only to the rules. Yes, the rules were written with the goal of entertaining the crowd. Nonetheless, the umpire isn't supposed to look to that further goal. Although the umpire is supposed to serve the goal of entertaining the crowd, we expect the umpire to serve that goal by ignoring it and focusing only on the rules. This is despite the fact that those rules are only a means to the end of entertainment.

The rule-writers, on the other hand, are supposed to look to the ultimate purpose of the rules, be they entertaining the crowd, or maintaining the dignity of the game, or turning a profit, or whatever. Their approach to the rules is supposed to be completely different from that of the umpires.

Similarly, I gather, under the positivist conception, the legislators and the judges are supposed to have very different approaches to the law. Legislatures are supposed to take into account all the moral implications of the law. Their reasoning is very much supposed to be informed by moral considerations. Lawyers and judges, on the other hand, are supposed to take whatever rules arose out of that process as essentially given. Their reasoning is not supposed to be informed by moral considerations (at least not as such) any more than the umpire is supposed to make calls based on what will entertain the crowd. The purpose of the judge is to serve those moral ends, but, paradoxically, the judge is to turn a blind eye to those very ends. Nonetheless, just as with the umpire, this paradox is only a seeming contradiction.

The analogy isn't perfect because, unlike umpires, judges actually contribute to the content of the "rules" by setting precedents. But one could still maintain that their contributions to the rules, unlike those of legislators, are not supposed to be based on moral considerations as such. The judges' contributions are themselves only supposed to be made in accordance with whatever the consensus-derived rules for such contributions are.

I don't know if that should really be the case, but I don't think that it makes one a poor philosopher or historian to think that it should. I certainly don't see how it's a "a stale and empty school of thought, suitable only for a certain type of liberal academic who cannot make up his mind about anything."
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