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Old 11-18-2008, 10:10 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 travis68 View Post
I also would have liked to have had Scott flesh out more his reasoning why he thinks Dworkin is mistaken in his analysis. He said something along the lines that the legal system is designed to decide moral questions but that in Dworkin's framework, the legal system would need to look to morality. Scott seems to find that wrong. I am probably badly summarizing Scott's viewpoint, which is why I would like a further explanation.
I also would like to see how Scott develops that argument. My understanding from his very brief account was this: He thinks of the law as a tool for figuring out the moral thing to do. But (I gather he argues) the tool won't be any use if it depends upon our already knowing the moral thing to do. If we interpret the law using our pre-legal moral thinking, then our interpretations will be only as valid as that pre-legal moral thinking. This means that we can't turn around and use those legal interpretations to improve our moral thinking beyond its pre-legal state. This, I take it, would defeat the purpose of the law as Scott sees it.

This line of thought seems to me to be analogous to this: Microscopes are a tool for seeing small things. Therefore, if you can't build your microscope (analogously, have laws) without already being able to see small things (analogously, to perceive the moral thing to do), then you'll never be able to get your project of building that microscope off the ground.

But, of course, it's not really like this. Perhaps, with your unaided eyes, you can only build a very weak microscope. But that could be enough to start a positive feedback loop of progress. Though your microscope is weak, you can still use it to do somewhat finer work, so now you can build a stronger microscope than you could have without the weaker one. Then you can use this second microscope to do even more precise engineering so that you can build an even stronger microscope. And so on. The latter microscopes depend on your already having a microscope, but that seeming-circularity doesn't rule them out.

It seems to me like something similar might happen with interpreting the law. We might start with a primitive moral intuition, which, along with other things (like consensus) we use to build a basic legal system. That legal system then helps us to refine our moral sense of the right thing to do, just as Scott envisions (as I understand him). But then we might be able to take our new, refined moral sense and use it to make progress in our legal reasoning, perhaps creating a cycle of improvements, like with the microscopes. This seems to me like a perfectly reasonable way in which the law can both aid and depend upon moral reasoning, without creating a catch-22.

Last edited by Tyrrell McAllister; 11-18-2008 at 11:22 AM.. Reason: typos
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