General Reading

on May 22nd, 2017 by - Comments Off on General Reading

Primary texts

  • • Dworkin Taking Rights Seriously, esp. Chs. 2–5:
  • Dworkin says that a descriptive account of law is useless: It only looks at the law from the external perspective and is incapable of truly understanding the law from the POV of participants. NB The descriptive account of Hart DOES take IPOV, as Hart points out in his postscript.
  • Dworkin states instead that useful theories of law must be ‘interpretive’ – one must

adopt an interpretive attitude.  This involves inter alia bringing political convictions to bear on the relevant data.  It follows that legal theory must always be politically committed.  There is no room for value-free theorizing of the kinds set forth by Austin, Kelsen or Hart.

Hart responds that the way participants respond to the law can be recorded as a fact within the descriptive approach: ‘description may still be description, even when what is described is an evaluation’.

  • Dworkin also criticizes positivism’s claim that value-free theories of law can exist.  He says that they may be denying the need for the interpretive attitude because they say that we know what law is simply by attending to the way in which people use the word ‘law’ – Dworkin calls this the ‘semantic sting’.
  • This would mean that when people disagree about the law on any topic they are disagreeing about questions of linguistic usage, and that would be such a silly view that Dworkin charitably recasts positivists as theorists who do take up the interpretive attitude, but the wrong one – conventionalism.
  • Integrity: Why don’t we have checkerboard laws i.e. those that treat people in the same situation differently. E.g. why don’t we make abortion legal on even years and illegal on odd years, if the population is evenly split as to legalisation, and each person has equal impact on the system? The checkerboard would surely be “fair” as it allows the views of all people to be taken into account and reaches a compromise. Similarly it is just, since a person who is opposed to abortion may consider a checkerboard solution more just than full legalisation. He says the reason is “integrity”- i.e. that the law must take a decision and justify it on the basis of the principles that it considers correct. A checkerboard compromise undermines the principles for taking a particular decision, which integrity demands.
  • NB Dworkin says that the point of law is to justify coercion. NO: Hart’s postscript points out that much of law is not concerned with coercion e.g. power-conferring rules.

http://www.hup.harvard.edu/catalog.php?isbn=9780674867116

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