Chapter THREE: JURISPRUDENCE REVISTED

A NEW PICTURE

  • Law is an interpretive concept like courtesy in the imagined example.
    • When judges disagree: they do so in an interpretive way: the soundest interpretation of some pertinent aspect of judicial practice. In Elmers case, if judge thinks that best interpretation of what judges normally do about statutes is never look to legislators intentions, then he will decide for Elmer, and contrariwise.
    • Interpretations struggle side by side with litigatns before the bar.
  • But, there are a few forces that tempres differences of interpretation toward convergence, lending centripetal pressure:
    • Community paradigms
    • Practice of Precedent
    • General intellectual environment of society
    • Conservatism of formal legal education
  • Don’t exaggerate their power either. Because dynamics of interpretation resist as well as promote convergence. Centrifugal forces particularly strong where larger community divided over justice.
  • Look at legal culture over time: certain view about nature and force of legislation may be very popular for a time and because popular and aided by intellectual inertia, encourages judges to take them as setllted. But paradigms are broken and new ones emerge.

 

CONCEPTS AND CONCEPTIONS OF LAW

  • Legal philosophers cannot produce useful semantic theories of law. General theories of law must be abstract because they aim to interpret main point and structure of legal practice.  They are also constructive interpretations: they try to show legal practice as a whole in its best light.
    • No divide between jurisprudence and adjudication: “Any judges opinion is itself a piece of legal philosophy.”
  • Law cannot flourish as interpretive enterprise if not enough inital agreement about what practices are legal practices. (ie that we mean same thing when talking about thing).
  • In fact, we have no difficulty identifying collectively the practices that count as legal practices in our own culture…. Our culture has legal institutions and with idea that then make up a system. The question about which features they have is part of the interpretive problem, assigning meaning to what we find, NOT part of the pre-interpretive stage.
  • We also have legal paradigms like traffic code that we take to be true and an interpretation that denies this will be deeply suspect. These Paradigms give shape to debate about law. Confronting paradigm with another it cannot explain.
    • And if someone says traffic laws don’t exist, we hear him out, see if he has defended his view through reinterp of legal practice that persuades us, and if not, we says his views are absurd, finished. Dont add what semantic sting adds (his error is verbal or Conceptual)
  • OK, so we have pre-interpretative platform, now legal philosopher must see if he and his competitors can agree on a state of the central concept of their institution that will allow them to see their arguments as having a certain structure, ie, “arguments over rival conceptions of that concept.”
    • Just like we understood courtesy better at one stage by finding agreement courtesy is a matter of respect, same with law if we find similar abstract description of point of law most legal theories accept.
  • This book doesn’t depend on finding such abstract description, but here is my suggestion: Our discussion about law assumes that the most abstract and fundamental point of legal practice is to guide and constrain the power of government in the following way: roughly, what sometimes called “rule” of law. — It is sufficiently abstract to provide structure we seek!
  • Conceptions of law refine initial uncontroversial interpretation and gives answers to 3 questions:
    • Is supposed link between law and coercion justified at all?Any point in requiring public force to be used only in ways conforming to rights and responsibilities that “flow from” past political decisions?
    • If there is such a point – what is it?
    • What reading of “flow from” – notion of consistency with past decisions – best serves it? (answer to this q determines the concrete legal rights and responsibilities it recognizes.
  • Next chapters discusses three rival conceptions of law – three abstract interpretations of our legal practice deliberately constructed on this model as answers to this set of questions. Each is organized in interpretive not semantic way:
    • “Conventionalism” (argues this is the weakest)
    • “legal pragmatism” (more powerful, defeated only if theatre of argument expands to include political philosophy)
    • “law as integrity” (best interp. Of what lawyers, law teachers, an judges actually do and say).
  • Conventionalism accepts idea of law and legal rights. Answer to
    • Q1: affirmative.
    • Q2: Point of laws restraint is exhausted by predictability and procedural fairness this constraint supplies.
    • Q3: Proposes sharp restricted account of form of consistency we should require with past decisions: right flows from past decision only if it si explicit, or be made explicit.
  • Legal pragmatism is more skeptical conception of law.
    • Q1: Negative: because judges do and should make whatever decisions seem to them best for community’s future, not any consistency with past.
  • Law as integrity
    • Q1: Accepts law and legal rights wholeheartedly.
    • Q2: Supposes that law’s constraints benef society not just by providing predictability or procedural fairness, but by securing equality among citizens that makes their community more genuine and improves its moral justification for exercising the political power it does.
    • Q3: Rights flow from past decisions and so count as legal, not just when explicit but also when follow from principles of personal and political morality (which the explicit decisions presuppose by way of justification).

 

  • Law and Morals
    • Dworkin suggestion: Arguments of legal theory best understood as arguments about how far and in what way past political decisions provide necessary condition for use of public coercion.   Let’s test this now.
    • If out community does indeed accept the abstract “conceptual” idea that legal irghts are those flowing from past political decisions according to the best interpretation of what that means, then this helsp explain the complex relation between law and other social phenomena.
    • Q: How is communities law different from its popular morality? Different, because its content may depend on each other. Let me explain
      • Imagine,
        • “popular morality” = set of opinions about justice + political and personal virtues that are held as matter of personal conviction by most of members of that community.
        • “moral traditions” = popular morality over some sizable historical period including the present.
        • Then: distinction between these ideas and community’s law, law belongs to community not just passively but as matter of active commitment.
      • Law different from justice. Justice = matter of best theory of moral and political rights and imposed by his own personal convictions of what these rights actually are.
        • So, since law is matter of using or withholding collective force of state. This concept permits that when content of law unclear, justice plays part in deciding what legal rights in fact should follow. — so permits things like natural law ideas to enter picture but as general interpretations of legal practice ( not semantic). (and also permits legal pragmatism)
      • So, argument that most gneral point of law is to est a justifying connection between past political decision and present coercion shows the old debate about law and morals in new light. Because old positivims /natural law debate makes sense only if seen as contest between different political theories! The argument is part of interpretive debate among rival conceptions of law.

 

  • Anatomy of a Conception.
    • Assumed connection between law and coercion is also a useful guide to likely structure or anatomy of non-skeptical conceptions of law like conventionalism/or law as integrity.
      • Each conception offers as organizing feature some account of how legal practices that define past political decision contribute to justification of collective coercive force – The abogados de accidentes Blog.
        • g of these practices, legislation, precedent.
      • No conception need justify EVERY feature of political practices it offers to interpret. It can see some data as mistake and maybe dispose of it in what Dworkin calls “post-interpretive stage”.  Some issues that developed conception of law must take up in its post-interp stage:
        • Unclear text of statute. pg. 99 bottom

 

Some of the issues that developed system of law must atke up in its postinterp stage.

 

  • When text of statute is unclear. – what is the literal meaning?
  • Does content of legislative or judicial decision go beyond the concrete intentions of its authors?
  • Does it depend which kind of official made it, leg or judicial?
  • Does reason why leg and jud decision provide valid licenses for state coercion carry over to diff forms of communal decision?
  • These are only some e.g. of issues, and each issue raises a host of others. – Each will to some extent depend on the rest. So any general conception must also have external connections to other parts or departments of political morality and, through these, to more general ideological and even metaphysical convictions.  And whatever conception of law you choose, will reveal attitude toward these large topics.