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  #1  
Old 11-16-2008, 11:27 PM
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Default Even Further Beyond the Hart-Dworkin Debate

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  #2  
Old 11-17-2008, 02:05 AM
thprop thprop is offline
 
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Default Re: Even Further Beyond the Hart-Dworkin Debate

I think I need to read the papers and listen to this diavlog again. My head hurts.
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  #3  
Old 11-17-2008, 03:53 AM
travis68 travis68 is offline
 
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Default Re: Even Further Beyond the Hart-Dworkin Debate

Great debate. The civility and courtesy are a model to follow for everyone.

Many of the summaries were magnificent. I still am unclear why Brian thinks the theoretical disagreements are not important simply because they are few in number. Just because they are few doesn't mean that they don't have an outsized impact and thus need to be accounted for.

I would have liked to know Brian's explanation for the New Deal courts and how he explains their decisions given that they were radical departures from the past. I would also like to know what Scott thinks. How are the Supreme Court decisions that break from the past and don't seem to follow legal precedent or the letter of the law explained in the positivist's framework? Brian seems to say that it is unimportant. How are they unimportant since those decision have had a massive impact on society?

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.
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Old 11-18-2008, 11:10 AM
Tyrrell McAllister Tyrrell McAllister is offline
 
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Default Re: Even Further Beyond the Hart-Dworkin Debate

Quote:
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 12:22 PM.. Reason: typos
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  #5  
Old 11-18-2008, 06:32 PM
travis68 travis68 is offline
 
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Default Re: Even Further Beyond the Hart-Dworkin Debate

@Tyrell: Thanks for the explanation. What you say makes sense.

Any idea on how the positivist framework would handle the New Deal court decisions?
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  #6  
Old 11-19-2008, 07:04 PM
basman basman is offline
 
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Default Re: Even Further Beyond the Hart-Dworkin Debate

…How are the Supreme Court decisions that break from the past and don't seem to follow legal precedent or the letter of the law explained in the positivist's framework? Brian seems to say that it is unimportant. How are they unimportant since those decision have had a massive impact on society…

Isn’t legal positivism an account of law as it is exists, a reconstruction of law’s deepest structures driving all the way back to a rule of recognition, which discriminates between what is accepted into law and what is not, which rule of recognition itself rests ultimately on social consensus? I think that that goes to the distinction of law as such in virtue of its pedigree as opposed to its content and its relation to morality. Therefore, I think, if the SCOTUS makes a precedent shattering decision, or series of decisions, it or they will, presumably, be justified by conventional legal reasoning and hence will fit into a positivist conception of law. After all, for the Supreme Court, as opposed to lower courts, stare decisis is not absolutely binding, and there is a jurisprudence on when it can be departed from to “make new law”.

That said, I join most of the commentors in having greatly enjoyed, and having been greatly stimulated and educated by this diavlog, but not having understood it all on a first listen to.

One final thought for now on the argument that theoretical disagreements are of relatively less importance—such as in the case about the TVA and the little fish or whatever they were (the “TVA case")—because they are so infrequent, and the fetching metaphor of all legal disputes as a pyramid, at the top of which is theoretical disagreement: might not an answer to this argument be somewhat paradoxically to invert the metaphor? The theoretical disagreements, however infrequent, (in)form the ground on which the base of the pyramid sits, its theoretical foundations, so to speak.

For what is the theoretical account of the lower-pyramid-occupying decisions that are more easily resolved? Isn’t it in significant part the very notions that come into play at the top of the pyramid—which is quantitatively narrower but qualitatively broader than the pyramid’s base, the base being the entire universe of legal disputes. So when plain reading generates an absurd result, such as in the TVA case, some of the law’s essential presuppositions get thrown against each other, thereby illuminating some of the essential constituents of what the pyramid rests on. So, for example, in a liberal democracy, where reason (more than morality) must be taken to be at the very foundation of the rule of law, a necessary condition precedent for the rule of law, how could an absurd result ever be ascribed to the legislature, whether as a matter of statutory intent or effect?

Itzik Basman

Last edited by basman; 11-19-2008 at 07:07 PM..
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  #7  
Old 11-20-2008, 07:51 AM
Francoamerican
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Default Re: Even Further Beyond the Hart-Dworkin Debate

[QUOTE=basman;97880
Isn’t legal positivism an account of law as it is exists, a reconstruction of law’s deepest structures driving all the way back to a rule of recognition, which discriminates between what is accepted into law and what is not, which rule of recognition itself rests ultimately on social consensus? I think that that goes to the distinction of law as such in virtue of its pedigree as opposed to its content and its relation to morality. Therefore, I think, if the SCOTUS makes a precedent shattering decision, or series of decisions, it or they will, presumably, be justified by conventional legal reasoning and hence will fit into a positivist conception of law. After all, for the Supreme Court, as opposed to lower courts, stare decisis is not absolutely binding, and there is a jurisprudence on when it can be departed from to “make new law”. Itzik Basman[/QUOTE]

I am not a lawyer and I have only a superficial acquaintance with the doctrine of legal positivism, but I simply cannot see how a "precedent shattering decision" of the Supreme Court can be understood on the basis of a doctrine that forbids appeal to first principles, or morality, or natural law, or whatever you want to call the fact that citizens have moral reasons for "consenting" to a particular form of government, and therefore (if consensus means anything) the moral right to withhold their consent. If the Constitution ultimately rests on some kind of a "consensus," and if that consensus itself has its foundation in certain natural law doctrines of the 17th and 18th centuries (which were by no means universally accepted at the time), then surely the learned judges of the Supreme Court (well...with some notable exceptions past and present) cannot be legal positivists?
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  #8  
Old 11-20-2008, 11:35 AM
basman basman is offline
 
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Default Re: Even Further Beyond the Hart-Dworkin Debate

francoamerican:

I am a (Canadian) lawyer, but not a philosopher. I have no certainty that I understand legal positivism any better than, or as well as, you do. But insofar as the Supreme Court is not bound by its own precedents, I have no problem with a descriptive account of what the law is accommodating that court *making new law* within the means of its traditional modes of legal reasoning.

I was not asserting anything about positivism as against natural law theory; I was, simply enough, trying to answer the question of how positivism might account for the New Deal or any new law making cases—say the much criticized, in these terms, Roe v Wade. But to turn the question back on you and to get to a concrete instance, I’d be interested in an example of when your Supreme Court, even at its most radical turns, ever decided cases, ever made new law—or, in Ackerman’s terms, *amended* your Constitution--by reasoning that did not come within Hart’s notion of a rule of recognition?

Is there circularity in what I am saying? For what, ultimately, is the proper account of the scope and constituency of what the rule of recognition allows for? It can be argued that the question is self answering—since positivism is descriptive. But even if Hart traces his analysis back to a rule of recognition and to social practices before that, is there not an identifiable and coherent discourse comprising the universe of law that is discrete and separable from, say, as you say, “first principles, or morality, or natural law, or whatever you want to call the fact that citizens have moral reasons for "consenting" to a particular form of government, and therefore (if consensus means anything) the moral right to withhold their consent” ?

I tend to think so.

And having said this, I can see better than I did before the argument for the small number of cases of actual theoretical disagreement--the top of the pyramid, so to speak--as telling for the positivist account and as telling against the Dworkinan account.

Itzik Basman

Last edited by basman; 11-20-2008 at 11:53 AM..
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  #9  
Old 11-21-2008, 01:04 PM
Francoamerican
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Default Re: Even Further Beyond the Hart-Dworkin Debate

Quote:
Originally Posted by basman View Post
And having said this, I can see better than I did before the argument for the small number of cases of actual theoretical disagreement--the top of the pyramid, so to speak--as telling for the positivist account and as telling against the Dworkinan account. Itzik Basman
My comment was less directed at you than at legal positivism. Unlike you I lean towards the Dworkinian account of the relationship between law and morality (or justice). Dworkin is a better philosopher and a better historian.

Legal positivism is a stale and empty school of thought, suitable only for a certain type of liberal academic who cannot make up his mind about anything. If you agree with Max Weber and Hans Kelsen that the social sciences must be "wertfrei," and with the Viennese logical positivists that natural law is nothing but metaphysics, then I suppose you will agree with Hart and tutti quanti. But if you think as I do that no one can really be "wertfrei" and that modern natural law (Grotius--Hobbes---Locke---Rousseau--Kant) still has something to teach us, then you will side with a more robust conception of the law.
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  #10  
Old 11-21-2008, 03:56 PM
basman basman is offline
 
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Default Re: Even Further Beyond the Hart-Dworkin Debate

...only for a certain type of liberal academic who cannot make up his mind about anything...

Oh my God, you have me found me out, though I am no academic.

Let me try, with a few better moments at hand, to work through what you said, including "wertfrei" and "tutti quanti", about which I have a call in to Sarah Palin or anyone else comprising the Republican base, and see what response I can fashion using only English words.

Adios for now mon ami,

Itzik Basman
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  #11  
Old 11-22-2008, 01:21 PM
Francoamerican
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Default Re: Even Further Beyond the Hart-Dworkin Debate

Quote:
Originally Posted by basman View Post
...only for a certain type of liberal academic who cannot make up his mind about anything...

Oh my God, you have me found me out, though I am no academic.

Let me try, with a few better moments at hand, to work through what you said, including "wertfrei" and "tutti quanti", about which I have a call in to Sarah Palin or anyone else comprising the Republican base, and see what response I can fashion using only English words.

Adios for now mon ami,

Itzik Basman
Say hello to Sarah for me and thank her for the Obama victory. I doubt, however, that she can help you with your English.

I did not mean to cast aspersions on the "liberal" of liberal academic.

Wertfrei= value-free
tutti quanti= and all those (of that kind)
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Old 11-17-2008, 11:50 AM
ledocs ledocs is offline
 
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Default Re: Even Further Beyond the Hart-Dworkin Debate

I guess this was interesting. Hard to say, really. It all seemed to be one big begging of the question (petitio principii) to me. That is, the positivist or conventionalist just says that any claim that moral reason makes turns out, upon inspection, to be another part of convention. The interesting question is whether this conventionalist claim about moral reason would also be extended to the claims of natural science and mathematics. I don't want to be too harsh, but maybe this wasn't really interesting. I would rather hear the same debate about Paul Feyerabend, I think.
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  #13  
Old 11-17-2008, 05:11 PM
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Default Re: Even Further Beyond the Hart-Dworkin Debate

The level of abstraction of this discussion was impressive but also a bit stultifying. Still, let us hope the Bloggingheads keeps up the good work and continues to call on the best and the brightest.

I confess I have never understood how law and justice, or law and morality, or law and "natural law" (to use the three traditional oppositions), could be separated into absolutely air-tight compartments--as if the legislators, judges and lawyers of the states whose laws they administer were not also citizens of those states, hence concerned to see that justice be done (et pereat mundus!). And since the laws of every state that has ever existed have fallen short of perfection, what is so paradoxical about the idea that there may be a "law" superior to actually existing law even if it only exists in the minds of a few men and women? Would slavery have been abolished if the matter had been left up to lawyers?

Last edited by Francoamerican; 11-17-2008 at 05:15 PM..
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  #14  
Old 11-17-2008, 05:59 PM
You_had_me_at_hello You_had_me_at_hello is offline
 
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Default thank god for complexity

I agree with the above. I found the discussion to be kind of hard to follow but loved that the participants seemed very intelligent.

Thank God for diavlogs like these in a nation that came close to electing Sarah Palin as our VP!
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  #15  
Old 11-19-2008, 07:40 PM
basman basman is offline
 
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Default Re: Even Further Beyond the Hart-Dworkin Debate

One more thought: Leiter mentioned in passing Richard Posner's book How Judges Think, (which is now on its way to me). It would have been fascinating to hear these two totally admirable law profs discuss Bush v Gore and the opposing views of it taken by Dershowitz and Posner, in their own respective books on the case, but elevate the issues by reference to the terms of their discusson in this diavlog. (See for example: http://www.arts.mcgill.ca/history/fa...tzvsPosner.htm)

Itzik Basman
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Old 11-22-2008, 06:59 PM
basman basman is offline
 
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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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  #17  
Old 11-23-2008, 02:36 PM
Francoamerican
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Basman

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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Old 11-24-2008, 05:58 AM
Tyrrell McAllister Tyrrell McAllister is offline
 
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Default Re: Even Further Beyond the Hart-Dworkin Debate

Quote:
Originally Posted by Francoamerican
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
From what I gathered in this diavlogue, this looks like an unfair simplification of the positivist position, at least as Scott portrayed it. But I know almost nothing about legal positivism other than what I saw in this diavlogue.

At any rate, the impression I got was that the positivists think of lawyers and judges as being like umpires in a game of, say, baseball. Legislators, on the other hand, are more like the official bodies that write the game's rules (MLB or whatever, I don't really follow professional sports). The analogy carries over on a couple of points.

First, although it is tautological to say, "The rules of baseball are the rules of baseball.", it's not tautological to say, "The rules of baseball are whatever entities X, Y, and Z say they are." The second assertion is something that an umpire could actually use as a guide to making calls during games. It seems to me to be more analogous to what legal positivists are trying to do.

Second, consider that we don't want umpires to be making their decisions based on whatever will entertain the crowd the most. The umpire should look only to the rules. Yes, the rules were written with the goal of entertaining the crowd. Nonetheless, the umpire isn't supposed to look to that further goal. Although the umpire is supposed to serve the goal of entertaining the crowd, we expect the umpire to serve that goal by ignoring it and focusing only on the rules. This is despite the fact that those rules are only a means to the end of entertainment.

The rule-writers, on the other hand, are supposed to look to the ultimate purpose of the rules, be they entertaining the crowd, or maintaining the dignity of the game, or turning a profit, or whatever. Their approach to the rules is supposed to be completely different from that of the umpires.

Similarly, I gather, under the positivist conception, the legislators and the judges are supposed to have very different approaches to the law. Legislatures are supposed to take into account all the moral implications of the law. Their reasoning is very much supposed to be informed by moral considerations. Lawyers and judges, on the other hand, are supposed to take whatever rules arose out of that process as essentially given. Their reasoning is not supposed to be informed by moral considerations (at least not as such) any more than the umpire is supposed to make calls based on what will entertain the crowd. The purpose of the judge is to serve those moral ends, but, paradoxically, the judge is to turn a blind eye to those very ends. Nonetheless, just as with the umpire, this paradox is only a seeming contradiction.

The analogy isn't perfect because, unlike umpires, judges actually contribute to the content of the "rules" by setting precedents. But one could still maintain that their contributions to the rules, unlike those of legislators, are not supposed to be based on moral considerations as such. The judges' contributions are themselves only supposed to be made in accordance with whatever the consensus-derived rules for such contributions are.

I don't know if that should really be the case, but I don't think that it makes one a poor philosopher or historian to think that it should. I certainly don't see how it's a "a stale and empty school of thought, suitable only for a certain type of liberal academic who cannot make up his mind about anything."
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Old 11-24-2008, 08:34 AM
Francoamerican
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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 08:47 AM..
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  #20  
Old 11-24-2008, 10:27 AM
basman basman is offline
 
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Tyrell and Franco: I enjoyed your just before back and forth. I don't think I have anything useful further to say here. And for myself here I willl leave it.

Itzik Basman
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  #21  
Old 12-28-2008, 05:38 PM
SponGen SponGen is offline
 
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Default Re: Even Further Beyond the Hart-Dworkin Debate

If I understand the issue correctly, I’d 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, it’s 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 05:40 PM..
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  #22  
Old 11-18-2008, 04:19 PM
Wonderment Wonderment is offline
 
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Default Re: More legal philosophy bloggingheads!

Quote:
philosophers do love talking about their work for free: http://www.nigelwarburton.typepad.com/philosophy_bites/.
Cool site! I'm all over that one.
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