Are there aspects of our lives into which the law must not intrude? Can the intrinsic immorality alone of certain activities constitute sufficient ground for their prohibition? In this topic, we will familiarise ourselves with the debate over the moral limits of the law and with some of the controversial cases and intricate concepts it involves, and consider the weaknesses of some classical attempt to address it.
• Devlin The Enforcement of Morals, Chs. 1, 6 and 7:
A society is inextricably linked to its morality, usually coming from the traditional religion so that in the UK, for example, Christianity provides us with a moral code. However a state that leaves religion to the private conscience cannot enforce religious beliefs on the basis of that religion. However shared morals can still be enforced through the belief that without them society would be lost.
The law currently does enshrine moral principle e.g. one cannot consent to assault, euthanasia is banned, as is assisted suicide, duelling, incest etc which do not involve doing harm to others. See Hart’s response belowIntroduction to Law and Morals
Devlin argues that because a society acts with certain standards, others must be bound by them and this cannot be left to
Not really necessary to see the law in its best light – judges & theorists shouldn’t look at law through rose tinted spectacles, making it the best it can be – should instead describe it as it is
Dworkin: there’s no simple description of law as it is – describing it in that way necessarily involves an interpretative process which requires determining what the best interpretation of officials past actions is → law “as it is” is just a collection of past official decisions (i.e. pre-interpretive data) & collectively they can’t answer a legal question until some order is imposed on them; i.e. through “constructive interpretation”
Emphasises the possibility of revision too much/doesn’t provide coherent theory for “easy cases” (b/c still says interpretative element exists)
The theory’s strenght of being able to account for the way law is regularly subjected to change & re-characterisation is also its weakness →D argues that, even in situations where there seems to be a recent authoritative legal source directly on point, there’s still a need for interpretation since a skilled advocate could argue, whilst looking at past legal decisions, that appellate court’s decision was mistaken or too broad.
Emphasises the possibility of revision too much & the likelihood of settlement too little.It celebrates the notion of great individual judge rethinking whole area of law, thereby deflecting attention from important areas of consensus & shared understandings. The whole picture may actually be too grandiose to cope w/day to day choices which real judges have to make
Defeats the purpose of having legal authorities b/c always allows questions which they’ve resolved by designing a legal system to be reopened (J. Shapiro)
Task of legal interpreter is to impute to legal practice political objectives which designers of the system sought to achieve→relevant purposes explain (not justify) the current practice. Should employ methodology which best harmonises or fits w/ these ideological objectives, regardless of their moral appeal.
Methodology is still grounded in social fact b/c specific purposes of legal system are matters of social fact & to uncover social objectives interpreter must analyze the institutional structure & determine which goals & values best explain why the legal system has its current shape. After all, if those in authority are trustworthy, which is what the law always supposes, then deferring to their judgment about how to attain the fundamental aims of the system is a highly effective strategy for actually attaining them.
Theory for judges, not citizens
Dworkin’s approach is a legal theory for (or from perspective of) judges rather than a full theory of law – why would a citizen take such a view of the law? For many of them, the perspective is of wanting to know what they have to do to avoid legal sanctions… If the law is going to succeed in coordinating behaviour (Finnis), then it’s important that different citizens view what it requires in a roughly same way – unlikely to come about if they take Dworkin’s interpretative approach.
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. – Check out SEO Glasgow
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 judges→law as integrity unites jurisprudence & adjudication in this way.
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:
assumption that practice of courtesy has value; i.e. serves some purpose
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”
The process is made up of 3 analytical stages:
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
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
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!!
Application of law
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.
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.
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.
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
Grounds of law
2 types of legal disagreements
Empirical – whether grounds of law have in fact obtained
Theoretical – conflicting claims about what the grounds of law are
Argues→jurisprudence hasno plausible theory of theoretical disagreementsb/c it’s committed to “plain fact” view of law:
Grounds of law in any community are fixed by consensus amongst legal officials
The only types of facts that may be grounds of law are plain historical ones
The plain fact view can’t account for possibDisagreements in the law
ility 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
ewspapers are dying but we live in a golden age of journalism. Writers of every political shade such as Boris Johnson, Matthew Parris, David Aaronovitch, Douglas Murray, Nick Cohen, George Monbiot and Polly Toynbee are daily turning out copy that is by turns hilarious, compassionate, persuasive, acerbic, astute, angry and exasperating. And you could probably add another twenty-five names at least to that list: journalists that you would want to read no matter what they were writing about.
Such Premier League journalists are for everyone. More specialist tastes are catered for ever more often on the large numbers of specialist blogs.
Many of these are political. Iain Dale, for example is required reading for Conservatives and other parties have their own gurus and soothsayers.
The climate change debate has been a particularly fruitful area for bloggers. The magisterially sceptical US site Watts Up With Thatand its more rumbustious British equivalent, Bishop Hill, compete with extraordinary vigour against the equally robust Real Climate, while the indefatigable Judith Curry is a rare and very perceptive female voice amongst the bearded weathermen who tend to enjoy the mathematical minutiae every bit as much as the conspiracy theories and email skulduggery.