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Old 12-28-2008, 04:38 PM
SponGen SponGen is offline
 
Join Date: Dec 2008
Posts: 1
Default Re: Even Further Beyond the Hart-Dworkin Debate

If I understand the issue correctly, Id say Shapiro has the better position on theoretical disagreements. When there is theoretical disagreement, that is, when lawyers or judges disagree about foundational legal rules or principles of interpretation, for example, whether If it is absurd, its not law is true or not, and yet, in the face of the explicit or implicitly-acknowledged foundational disagreement, continue to assert their position, knowing they have no legal basis for it (because it is, by definition, foundational) and knowing the other side does not accept the foundation, hence there is no consensus, as long as they are acting in good faith, they are still engaged in doing law. Weird law, but still law. Only when it's in bad faith will people say, "That's not law, that's . . . politics." Regardless how common this phenomena is--some would say it is rare if only because judges are most often not acting in good faith but think of themselves as overstepping the boundaries of law--I see no reason not to modify positivism to account for it. It need only be a minor qualification to the theory. We should not be surprised that the boundaries of such a complex social phenomena as law are fuzzy and contested and require a nuanced, qualified theory to describe them completely. So, for it it's worth (and I don't think it's worth that much), that's how I'd draw those boundaries.

Last edited by SponGen; 12-28-2008 at 04:40 PM..
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