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Old 11-23-2008, 01:36 PM
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Default Re: Even Further Beyond the Hart-Dworkin Debate


You raise some good questions, but I fear that nothing I say will strike you as terribly relevant. I am neither a legal scholar nor a lawyer. I am not even a academic philosopher (though I have a PH.D., "doctor of philosophy" in the comical lexicon of academia).

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 (You will notice that I am eclectic: Americans who want to outlaw abortion obviously believe that the law has a moral or religious purpose; other Americans believe no less strongly that the purpose of the law is to protect or expand their freedoms, the woman's "right" to her own body etc.). I have no doubt that legal positivists can, if they so wish, seal the law off conceptually and study it en vase clos as if it were a system of internally coherent rules of action for judges and lawyers (although I wonder if any system of legislation, such as English common law, that has grown up over the centuries can be altogether coherent. Le code Napoléon might be a better example of a coherent system of law---perhaps not the best precedent!). They can follow Kelsen and Hart and decree that law is whatever is laid down as law by a legitimate authority (this works better in German where Gesetz (law) is gesetzt (posited, laid down)). What they cannot do, if they have any sense of history (admittedly few Americans do), is argue that the existing laws of the constitutional states of Europe and America have no relation to the purposes I enumerated above.
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