Disagreements in the law

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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
  1. 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 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