#3521 - Gaps In The Law - Jurisprudence

1. 3 central tenets to positivis

Disagreements in the law

• Law is a special phenomenon which has a special structure.

• Legal practice is argumentative – it consists largely of participants advancing various claims about what law demands & defending them by offering reasons. To understand law in this way, one must appreciate that for most part it’s a practice of argumentation.

• Distinguish

1. Propositions of law – statement about content of the law in particular legal system (e.g. breach of contract by A leads to B obtaining damages)

• May be true or false

• They are true by virtue of grounds of law

2. Grounds of law

• 2 types of legal disagreements

1. Empirical - whether grounds of law have in fact obtained

2. Theoretical - conflicting claims about what the grounds of law are

• Arguesjurisprudence hasno plausible theory of theoretical disagreementsb/c it’s committed to “plain fact” view of law:

1. Grounds of law in any community are fixed by consensus amongst legal officials

2. The only types of facts that may be grounds of law are plain historical ones

• The plain fact view can’t account for possibility of theoretical disagreements in the law instead, legal interpretation is “constructive” = the process of “imposing a purpose on an object or practice in order to make it the best possible example of the form or genre to which it is taken to belong”.

• A purpose makes an object the best it can be when it both “fits” & “justifies” the object better than a rival one

• A purpose “fits” the object to the extent that it recommends the object exists or that it has the properties it has

• A purpose is “justified” to the extent that it’s a purpose worth pursuing

• SO to determine what the grounds of law are interpreter must engage in constructive interpretation; i.e. impute a purpose to particular practice that presents it in its best light (one that best fits & morally justifies it) + use this point to ascertain the grounds of law for particular system

• A judge is required to deploy standards other than rules where, by definition, no rule applies here, he uses principles

• Hercules, who owes his existence to gapless system of law & is required to seek consistency & integrity, and treat law as a seamless web - a judge of superhuman skill, learning, patience & acumen who’s expected to construct a scheme of abstract & concrete principles providing a coherent justification for all common law precedents and, as far as they’re to be justified on principle, constit& statutory principles too. Where legal materials allow for more than one consistent reconstruction, he’ll decide on theory of law & justice which best cohers w/institutional history of community.

• Precedent has enactment or gravitational force – fairness in treating like cases alike if earlier decision were taken to be entirely justified by some argument of policy, it would have no gravitational force. Its value as a precedent would be ltd to its enactment force in decisions generated by policy, there’s no need for consistency

• Hercules is useful b/c he sets a standard by which real judge might measure his performance he’s more reflective & conscious than any real judge need to or indeed could be

• In his pursuit of coherence & integrity, Hercules will find one best answer to the legal question before him

• Tal’s smile – in chess tournaments one of players, Tal, smiles inanely @ opponent who unsmilingly objects, referee must decide if this breaches the rules, but rule book is silent, so he needs to reflect upon nature of chess – as a game of intellectual skill, does it include psychological intimidation? Must find that best “fits” general theory & practice of chess. To this, there can only be 1 right answer applies to judge deciding a hard case too & lawyers accept there’s only one correct outcome to legal dispute: when give advice, don’t say “this will either be valid or invalid” but bases himself on interpretation of the law enabling him to give best answer of state of law as he finds/understands it.

• But proposition is still rather bold – might be right w/crim. law but not w/tort or contract disputes. Hercules would here determine the answer but wouldn’t it be subjective? He’d look @ background facts, precedents, doctrine as he understands them, so if we take Hercules 2 (more conservative) would his answer be the same?

Dworkin’s ‘Law as Interpretive Concept’

• Law is an interpretative concept acc to conception of “law as integrity”, its content depends on more refined interpretations of the same legal practice it has begun to interpret.

• Unlike positivism, Dworkin’s theory claims to be able to account for “disagreements in the law” – positivists claimed to argue that such disagreements are actually about what the law ought to be but this isn’t satisfactory. Theoretical disagreements frequently occur in legal practice & academia, and claiming their non existence would equate to calling practice in which legal scholars engage incoherent.

• Judges should decide what the law is by interpreting the practice of other judgeslaw as integrity unites jurisprudence & adjudication in this way.

1. Community of courtesy example

• Members follow a set of rules; i.e. rules of courtesy (may require peasants to take their hats off to nobility). For time being, rules are there & not questioned but then all this changes & people develop an interpretative attitude towards them which has 2 components:

1. assumption that practice of courtesy has value; i.e. serves some purpose

2. assumption that requirements of courtesy are sensitive to the purpose, so that rules must be understood, applied or modified acc. w/it

• Once that interpretative attitude develops, institution of courtesy ceases to be mechanical & people try to impose a meaning on it – see it in best light – and restructure it in light of that meaning.

• Interpretation of social practice is like creative interpretation – it’s constructive b/c interpretation of works & social practices is essentially concerned w/purpose, not cause, but purposes at play are those of the interpreter constructive interpretation is a matter of imposing purpose on an object or practice in order to make it the best example of the form or genre to which it’s taken to belong.

• In making the practice the best it can be, criteria are “fit” & “moral value/justification”

2. The process is made up of 3 analytical stages:

1. Pre-interpretive – rules & standards which constitute the practice are identified (equivalent stage in literary interpretation is to identify the text”

• some interpretation also required here b/c social rules don’t carry identifying labels

2. Interpretive – interpreter settles on some general justification for the main elements of practice identified at pre-interpretive stage - it needn’t fit every aspect of the practice but must be enough for interpreter to see he’s interpreting it and not inventing a new one

3. Post interpretive – interpreter adjusts his sense of what the practice “really” requires so as to better serve the justification he accepts at interpretive stage (e.g. interpreter of courtesy might find that consistent enforcement of best justification of that practice would require people to tip their hats to soldiers returning from war + nobles, or that it calls for new exception, such as making returning soldiers exempt from the practice)

• Actual interpretation would be much less deliberate & structured – people’s interpretive judgments would be more a matter of “seeing” at once dimensions of their practice, a purpose or aim in that practice, and its post interpretive consequence.

• Bix – a distraction jurisprudence could well do w/out!!

3. Application of law

1. What’s the purpose/point/value of law – acc to Dworkin, to constrain or justify the exercise of governmental power

• In order to find the right answer in hard case, Hercules must develop a theory about the character of the law before him, in the shape of coherent scheme of principles which best fits & justifies the institutional history & practices of his legal system.

2. Hercule’s own input

• His own theory may be different from another judge’s theory b/c it requires judgments about complex issues of institutional fit + judgments about political & moral philosophy

• Construction of “soundest theory of law” is a controversial task involving complex questions of moral & political theory but not about Hercules’ own personal moral beliefs but about moral & philosophical theory which best serves to justify the established legal rules.

• Unlike Hart’s theory of judges striking out own law when law “runs out”, Hercules theory is one about what statute & precedent requires (i.e. he’s constrained by the law) and, although it will reflect his own intellectual & philosophical convictions, this is a very different from supposing that they have independent force in his argument just b/c they are his.

3. Integrity

• Why don’t we have checkerboard laws; i.e. those which treat people in same situation differently. E.g. make abortion legal on even years & illegal on odd years, if population is evenly split, so that each person has an equal impact on...