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Old 11-24-2008, 07:34 AM
Francoamerican
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Default Re: Even Further Beyond the Hart-Dworkin Debate

Tyrrell McAllister

Your analogy is useful, and indeed the idea of the judge as an umpire is close enough to common sense and to the historical development of legal systems (in French the sports umpire is an "arbitre", arbitrator) to commend itself to anyone who thinks about the function of law. One could certainly write a kind of phenomenology of the law in which the action of a judge is described in such terms: a disinterested mediator who intervenes in an interaction between two or more agents who are at odds with one another over some issue (in French, a "litige"=legal conflict or feud) and decides the issue by appealing to the rules of the game, without bringing into his decision any moral considerations, either his own or those of his society. I would question though whether even a phenomenological description can evacuate moral considerations. This is clear from your somewhat bizarre interpretation of the function of rules in a game. When you say that the rules of a sport were written "with a view to entertaining the crowd," aren't you overlooking their primary purpose? Namely, to ensure that the crowd believes that the players are playing fairly? A game in which the rules are violated may not be entertaining (would it still be a game?), but that is because the spectators come to the game with an expectation of fairness. And what is the demand for fairness (which is just plain old English for "justice") but a kind of primitive moral imperative (whether innate or acquired I will leave unanswered)? And what is a legal system but an institution that ensures that justice (or fairness) reigns: fiat justitia, pereat mundus, as the natural lawyers used to say.

My objection to legal positivism is its futility. Like so-called "meta-ethics" it is an attempt to stand outside law and morality and say what they REALLY are in some absolute sense---as if the world needed philosophers to explain at long last what the world has always known. Traditional jurisprudence and the natural law doctrines which grew up around it were more modest. Like many of the games academics play, the rules of legal positivism are designed to perpetuate a game that has no spectators.

Last edited by Francoamerican; 11-24-2008 at 07:47 AM..
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