GROUNDS AND FORCE OF LAW

on May 24th, 2017 by - Comments Off on GROUNDS AND FORCE OF LAW
  • Dworkin on our concept of law: Legal argument takes places on a plateau of rough consensus that if law exists it provides a justification for the use of collective power against individual citizens or groups.
    • General conceptions (like 3 mentioned earlier) begin by some broad thesis about whether and why past political decisions do provide such a justification. ( for example the cornerstones from abogados de accidentes)
      • Powerful objection?: There is difference between what law is, and what judges do, Austin and Hart recognised this because propositions of law are factual.
    • This objection calls for important clarification: across field of further controversy there is an underlying agreement. We have, even in flourishing legal system, there is an exceptional case where coercion does not stand because powerful counter-argument available.  This must exist.  This leaves connection of law and coercion at abstract level.  But fully theory needs more concreteness.
    • Full theory includes two main parts : speak to both GROUNDS of law and FORCE of law (the relative power of any true proposition of law to justify coercion in diff sorts of exceptional circumstance).
    • But this complexity poses practical problem: we all have attitudes toward law along with rest of our general social knowledge. We find it difficult to achieve distance from our own convictions necessary to examine these systematically as a whole. We can only do it one by one, step by step and not mingle and mix when we look at discrete parts.
    • Academic tradition focuses on grounds, silent on force.
    • Now we can reply to the above objection: Conceptions of law (theories about grounds of law) commit us to no particular or concrete claims about how citizens should behave or judges should decide cases. Remains open that though law is for Elmer, circumstances of case are special so judge should not enforce law.
    • Note that process of abstraction, allows to discuss grounds of law, abstracting from tis force, also allows political philosophers to argue in other directions. Ie, we can ask the complementing question of jurisprudnce “Given the sort of thing we call and accept as law, when can we morally be free to disobey” ?   — of course, we need some sort of agreement on grounds to perform this abstracting.
      • “But if many people in any community disagreed THAT far about grounds – if shared no paradigms – civil disobedience would be the least of their problems.”

chapter FOUR: CONVENTIONALISM

ITS STRUCTURE

  • “The law is the law. Not what judge thinks.” this is view of laymen and legal conservative. This slogan translates into “collective force be used gainst individuals only when some past political decision has licensed this explicitly in such way that competent lawyers and judges all agree about what decision was.
  • Conventionalism shares slogan, but interpretation it builds is more subtle in two ways:
    • it explains how content of past political decisions can be made explicit and non-contestable (in america it is settled that law made by congress). So legal practice is matter of respecting these conventions.
    • Corrects layman’s view that there is always law to enforce. Judge must arrive at decision, and no party entitld to win. And judges decisions then turn into convention for the future.
  • Obvious similarities between conventionalism and positivist semantic theories. BUT, important difference: semantics argue that the description of law given is enforced by very vocabulary of law, so to say anything else would be self-contradiction. But, conventionalism uses interpretive method. It says that this way of describing what lawyers and judges do is most illuminating account, and thus best guide to what they should do.   THUS, conventionalists do not deny that people who think otherwise cannot possibly mean what they say.
  • Conventionalism makes two post-interpretive, directive claims:
    • Positive claim: judges must respect the established legal conventions of their community except in rare circumstances. Doesn’t matter what judge thinks, must apply e.g. Statute in britain.
    • Negative claim: There is no law, no right flowing from past political decision apart from law drawn from those decision by techniques that are themselves matters of convention, and therefore that on some issues there is no law either way. — here, judges must use disc power.
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