Pragmatism and Personification

Skeptical Conception.

 

  • Main difference between pragmatism and law as integrity.
    • Pragmatists takes skeptical attitude towards assumption we are summing is embodied in the concept of law (he deinies that past political decisions in themselves provide any justification for either using or withholding the states’ coercive power.
  • Pragmatism as conception of law does not stipulate which of these various visions of good community are sound or attractive.
  • Generally, pragmatism says people never have rights, ppl never entitled to what would otherwise be worse for the community just because judge long time ago said so. They argue that sometimes judges must act “as if people have legal rights” – this is less radical in practice than appears in theory (made radical by realists)
  • Pragmatism is more powerful and persuasive conception of law than Conventionalism, and a stronger challenge to law as integrity.

 

Does pragmatism fit?

 

  • As if rights
    • An as if judge would produce an attenuated (reduce force of) doctrine of respect for statues and precedents. But would also sometimes pretend he is enforcing old and obsolete law when he was really ignoring it. This is just another strategic question for the pragmatic judge.
  • A case study: Prospective Rule-making
    • Could make forward looking rule: prevent future murderers like Elmer to profit but for now allow it. BUT, problem is that people would stop bringing novel cases in which these rules would be announced for the future.
    • Could also make new rules and apply retrospectively, advantage: if people know that a new rule will be applied retrospectively they will behave in accordance with whatever rules they imagine courts would think in the general interest, and this will provide a great part of the advantage of such rules without need actually to enact or adjudicate them.
  • The Old Hurdle
    • Conventionalism failed at hurdle of accounting as story how legal culture develops and changes as a whole. Pragmatism points out that strategies for pursuing general interest that seem obvious  can naturally be questioned and changed.
    • What about other hurdle: what particular judges do about particular cases? Well, pragmatist judge no worry about intention of legislators. Only reason he ever has to enforce statute is to preserve general power of legislature to coordinate people’s behavior.
    • Prag judge will find room for some working theory of precedent, for purpose of instilling confidence in people. But if unclear, no problem to abandon this. If linking two cases results in controversy (McLoughiln), why do it, he says.  Will just look at what is best for community as whole, free from any supposed rights flowing from consistency.
    • But is pragmatism that attractive that it requires that much support?

 

Law without Rights

 

  • pragmatism doe snot reject morality
  • * Important point about prags: prags says that community has actually decided that judges should take prag approach, ie, to delegate to judges the power to decide case in whatever way they think is in best interests for community as a whole and invent as if theories of rights with that purpose in mind.
    • But not true that Americans or Britons decided to delegate leg power to judges in this way.
  • Let’s look closer at prag idea of skepticism about legal rights
    • Not self evident that idea of legal rights is attractive, or even sane! But prag rejects idea that consistency in principle is important.
    • Prags deny that incoherence in principle is equal to injustice.
    • No argument to say that diff prag judges will arrive at difference conclusions in hard cases, of course, but so would any other judge in any other theory.
    • How can we say that consistency in principle is that important for its OWN sake, must answer this if we are to kick prag ass. If we cannot answer this question – then we have to accept Pragmatism.

 

The Claims of Integrity

 

  • We realise, in working towards a just state, that we already belong to a different one, not utopian blank slate.
  • Utopian and political theory share “virtues of fairness”
  • However, ordinary politics adds to familiar utopian theory one crucial point: treat like cases alike!. And Dworkin gives it a grander title: Integrity.
  • Now, if we accept integrity (acting on convictions that inform and shape their lives as whole, rather than capriciously or whimsically) then we can use that to make a case for recognizing rights.
  • Can divide integrity into two more practical principles:
    • integrity in legislation: keeping law coherent in principle
    • integrity in adjudication: asks judges to see and enforce law as coherent in that way. (explains why past matters, seeing past decisions as a body whole, not discrete)

 

Community Personified

 

  • Many people have issue with fact that political integrity assumes a particular deep personification of community or state. It supposes that community as whole can be committed to fairness or justice or procedural due process in some way analogous to the way particular people can be committed to convictions or ideals or projects, and this strikes many as bad metaphysics.
  • For fucks sake: Can I really mean to personify the community in this vivid way? Can i really attribute to state or community principles that are not simply those of most of its members?
    • YES: But must make clear what kind of personification this is.
      • I mean only to endorse a complex two stage way of reasoning about responsibilities of officials and citizens that finds a natural expression in the personification of community and cannot be reproduced by a reductive translation into claims about officials and citizens!
        • g of car company that produces fault and many kills and we don’t now where fault happened. How do we frame question? As Corporate Responsibility, yes, rather than through a direct moral assessment of each individuals record one by one. Because assessing it through CR makes personification not idle.

 

  • Personification at Work
    • So idea of political integrity personifies community in second way, as working personification, because it assumes that the community can adopt and express and be faithful or unfaithful to principles of its own, distinct from those of any of its officials.
    • s of Group responsibilities: blacks and whites feel indebtedness, jews and germans feel debt to them. Also, when we say that community has right to be protected from foreign war, we don’t have particular mode of protection in mind, but just general in some adequate way.
    • Last e.g., we believe political officials have responsibilities we could not defend if we had to build these directly from the ordinary requirements of individual personal morality most of us accept for ourselves and others in non political life.
      • We expect officials actin in their official capacity to treat all members as equals, and if official is self serving we call him corrupt.
      • Not a question of power, because we expect this from any official, no matter what rank.
      • THUS: cannot explain this is we build argument from private morality.
      • WE MUST treat group responsibility as logically priori to the responsibilities of officials one by one.
      • Follow the guidelines published by Abogados de accidentes

 

  • Thus – adjudicate principles mentioned above is our special interest because it provides conception of law antagonist to pragmatism. If that principle can be sustained, prangs must be rejected.

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