THE SEMANTIC STING

  • We have following dilemma: In spite of first appearances, lawyers all do accept same criteria for deciding when claim about law is true or there can be no genuine agreement or disagreement about law at ALL, but only idiocy of people thinking they disagree because they attach different meanings to same sound (because leg two crazy, legal philosophers embrace first and try to identify the hidden grounds that MUST be there)
  • Unfortunately, this picture of what makes disagreement possible fits badly with kinds of disagreements lawyers actually have. These losers try to explain away the theoretical disagreement. They say lawyers and judges are only pretending or that they disagree only because case falls in some gray area.

AN IMAGINARY EXAMPLE

  • The Interpretive Attitude
    • Imagine community where members follow set of rules which they call rules of courtesy, e.g. Take off your hat for nobility. Everyone develops complex interpretive attitude toward rules
      • they have value
      • requirements of courtesy, behavior it calls for etc, not necessarily what they have always been taken to be but are instead sensitive to its point.
    • 1 + 2 are independent of one another. But, if accept both, like in story, value and content become intertwined.
  • How Courtesy Changes
    • When full interpretive attitude develops, assumed point acquires critical power and people begin to demand under title of courtesy, forms of deference previously unknown or to spurn or refuse forms previously honored, with no sense of rebellion, claiming that true respect is better served by what they do than by what others did. So change happens, through each interpretative step.
    • Views about proper grounds of respect will change from rank to age or gender or some other property. Ideas about respect may change, internal to external showing of it. Or opinions change about whether respect has any value when it is directed to groups or for natural properties rather than individuals.

A FIRST LOOK AT INTERPRETATION

  • Beyond birds eye view of how tradition of courtesy changes, lets look closer by noticing kinds of judgments and decisions and arguments that produce each individual’s response to tradition and over long periods produce large changes we first noticed.
  • In this chapter: Dworkin offers theoretical account particularly designed to explain interpreting social practices and structures like courtesy, and defends that account against some Fundamental and apparently powerful objections.  “The analysis of interpretation I construct is foundation of book” (pg 50)
  • People interpret in many different contexts, lets see how they differ: conversation, art, science. What we try to do, interpretation of social practice, is like art, try to interpret something created by people as entity distinct from them, rather than what people say. Note, in contrast to science and speech, interpretation of social practices and art is essentially concerned with purposes rather than mere causes
  • One solution to replace metaphor that social practices speak to us is creative interpretation – we listen to the human authors not practices themselves. Dworkin argues that creative interpretation is not conversational but constructive. It is a matter “of interaction between purpose and object.”
  • Thus, a participant will propose value for practice by describing some scheme of interests or goals or principles the practice can be taken to serve or express or exemplify. One person may see in practices of courtesy a device for ensuring that respect is paid to those who merit it because of social rank or other status, another may see a device for making social exchange more conventional.    — Each interpreters choice reflects his view of which interp. has most value for practice, shows in in better light.
  • Constructive account works for other types of interpretation as well: we could say that ALL interpretation strives to make object best it can be, and that interp. Takes different forms in diff contexts because diff enterprises engage different standards of value or success.
    • Artistic interpretation diff from scientific interpretation only cause we judge success in work of art by diff standards than science.

INTERPRETATION AND AUTHOR’S INTENTION

  • Many people prefer popular creative account of interpretation. Objections to Dworkin idea of constructive interp.:
    • interp. Means trying to understand something in special way, discover authors motives or intentions in speaking or acting or writing or painting.
    • interp. Tries to show object or interpr accurately as it really is, not through rose-colored glasses!
  • Dworkin counters this in following outlined structure:
    • Even if we take goal of artistic interpretation to be retrieving the intention of author, we cannot escape using strategies of constructive interpretation!
    • If we do take goal of artistic interp. To be discovering author’s intention, this must be a consequence of having applied methods of constructive interpretation to art, not of having rejected those methods.
    • Techniques of ordinary conversational interpretation, in which interpreter aims to discover intentions or meanings of another person, would in any event be inappropriate for interpretation of social practice like courtesy because it is essential to structure of such practice that interpreting practice be treated as different from understanding what other participants mean by statements they make in its operation.
      • Social scientist must participate in social practice to understand it, not just understand its members.”

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SEMANTIC THEORIES OF LAW

  • Propositions and Grounds of Law
    • Plain fact view: holds that law depends only on matters of plain historical fact, only sensible disagreement about law is empirical disagreement about what legal institutions have actually decided in past. And say that theoretical disagreement about grounds of law must be pretense because very meaning of world law makes law depend on criteria.
    • Semantic theories of Law = Philosophers who insist all lawyers follow certain linguistic criteria for judging propositions of law, have produced theories identifying these criteria.
  • Legal Positivism
    • Semantic theories suppose that lawyers and judges actually agree about the grounds of law.
    • Positivist theories, support plain fact view, that genuine disagreement about what law is must be empirical disagreement about the history of legal institutions. Positivist theories differ about which historical facts are crucial.
    • John Austin: Defined sovereign as some person whose commands are habitually obeyed and who is not in habit of obeying anyone else. And main idea: law is matter of historical decisions by people in positions of political power, has never wholly lost its grip on jurisprudence.
    • HLA Hart picked up Austin account, rejected habitual obedience theory, said that true grounds of law lie in acceptance by community as whole of Fundamental master rule (ror) that assigns to particular people or grounds the authority to make law. g  for Austin 55 mph speed limit true because legislators who enacted that rule happen to be in control there, for Hart it is true because people of California have accepted and continue to accept, scheme of authority deployed in state and national constitutions.
    • Critique of Hart: Nazis obeyed Hitler. Does that mean they accepted a rule of recog entitling him to make law? If yes, Hart and Austin difference elusive. If no, acceptance requires more than mere obedience, thus, suggests that there was NO law in Nazi Germany.
  • Other Semantic Theories
    • Rival of positivist, natural law. But all semantic have this in common: they argue that lawyers follow criteria that are not entirely factual, but at least to some extent moral, for deciding which propositions of law are true. At extreme, justice = law. But obvious not true (e.g., many people think tax system unjust but still law).
    • Second rival to positivism is legal realism. They argue linguistic rules lawyers follow make propositions of law instrumental and predictive. Exact meaning of law depends on context.  “Law is nothing more than what judge had for breakfast.
  • Defending Positivism
    • Legal positivism: Genuine argument about law must be empirical rather than theoretical.
    • Crossed-fingers defense”: Quick answer to why judges and lawyers pretend to theoretical disagreement, because people believe there is always law for everything and judges should follow it. Essentially, this view says that lawyers and judges are systematically conniving to keep truth from people. Bad view because:
      • Wouldn’t it just be easier to show that there is no law? And if so easily exposed, why bother with the charade?
      • No evidence in our sample cases that lawyers or judges actually believed what this defense attributes to them. Gray or Burger not bent on reform, because each said what he took to be the law, interpreted in a certain way.
      • In McLoughlin it was disagreement about what law was, not about what it should be.
    • Borderline-case defences” Second argument: linguistic limitation that becomes exposed in hard cases: lawyers and judges in sample cases only THOUGHT they were disagreeing about law but self description shouldn’t be taken at face value. — idea of using words that are not precise or exact, they permit penumbral cases.  This explains why they disagree in hard cases like present sample cases.     Treats the main question as a question of repair, even if judges themselves might not have conceived it that way.
      • But: if argument true, why would people argue so long, they understand that diff people have diff idea of what a house is.
      • Borderline defense ignores distinction between borderline cases and testing or pivotal cases.
        • Difference like when two people argue if photography is form or branch of art. At end of day both understand its arbitrary. (this is like borderline). BUT, different type of argument is that two camps have a completely different understanding of what art forms are (this is not borderline, these are fundamental differences). Like this – also judges reasoning.
      • Judges in all sample cases disagreed on what makes proposition of law true not just at margin but in core. Not about drawing an arbitrary line.

http://onlinelibrary.wiley.com/doi/10.1111/j.1747-9991.2007.00058.x/abstract

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