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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