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Old 11-22-2008, 05:59 PM
basman basman is offline
 
Join Date: May 2007
Posts: 648
Default Re: Even Further Beyond the Hart-Dworkin Debate

F.A.

Please, if you care to, flesh out, or just hint at, a better account of what law is than legal positivism and give me an example or examples and a reason or two why. After all, positivists don’t say that (a) law’s content is unknowable, insignificant or marginal to a theoretical conception of law, but, rather, that they are not the touchstone for the existence of law. It is simply not the case, to put it most simply and commonly, that an unjust law is not a law.

Justice is the cardinal moral principle. So what is the relation between law and justice? I argue that (a) law can be detached from justice and still be law. I sense that you are conflating two different questions: the nature of law; and the nature and demands of justice. Attending analytically to the former does not denude treating of the latter. So wherefore the staleness and emptiness? What would you have the legal positivists say that they are not saying; and why are they typical of a certain kind of liberal academic who cannot make up his or her mind about anything? What would you have the legal positivist or liberal academic make up their minds about? Give me an example.

Maybe the liberal academic should relatively park his or her opinions, values, politics, moral perspective at the classroom door and teach his or her discipline in an open minded way that imparts knowledge, engages critical inquiry and is open to well made arguments of wide berth? (See: http://www.hoover.org/publications/p.../26074024.html)

Maybe, in the same spirit, the legal philosopher, seeking to account for law, should, qua philosopher, attend to the best arguments, which will stand or fall by the force of their logic and persuasiveness, by what they account or fail to account for? That values, moral considerations, subjectivity, predilections, biases and so on feed decisions in hard cases is indisputable. So what?

I believe you have misconceived the relation of values to the ideal of disinterestedness. In any event, I'd need an example or two that would make your argument more concrete for me.

Itzik Basman
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