Posts by Keir Leslie
Last ←Newer Page 1 2 3 4 5 Older→ First
-
Given that your legal positivism asserts that judges don't make laws, I am really quite doubtful of any claims for its sophistication.
-
In fact the judiciary does make the law in this kind of legal positivism. (A minor but terminological important point.) Everything else is merely a source of law, and arguably statute law is a comparatively unimportant source of law, especially compared to precedent.
The courts are, trivially, engaged in a fact finding exercise. (O God, this is brining back horrible memories of 101 essays. Quick! Tell the examiner the ways in which the search for truth and justice may come into conflict!) Once they have determined the facts, they apply the law to them (ok they don't really, but it is an ok model for this argument.) The fact that decisions turn on points of law tells us nothing because in order to tell what law to apply, we must first know what facts there are.
This division can be seen in the division between first instance (i.e. trial) and appellate work. At first instance, findings of fact are made, and generally can not be appealed. But the findings of law can; and because in general we study the law through judicial decisions, in particular appellate decisions, we tend to overemphasize the importance of findings of law.
inherent in positivism of this type is that it explains why the socially constructed laws are meaningful
This just isn't a thing that legal positivism does --- unless you smuggle assumptions into it.
-
Dworkin's views on legal positivism are controversial. So is legal positivism. Arguments that one or the other is the status quo, or simply correct, are likely to fail.
By this point, you have managed to reduce legality to tautology, and emptied it of any relation to broader society. In particular, this form of legal positivism gives us no reason we should respect the rule of law, something I would really quite like from a jurisprudence.
he seems to take it that the courts are interesting in fact-finding
Dear lord, what a mad assumption!
-
To go further, HORansome is taking a pretty classical legal positivist line, that the law is what the law is. Which, ok, we can accept that as far as it goes. If I go to my lawyer and ask if such and such a course of action is criminal, I want them to answer based on what they think the law is, not what it should be.
But (a) it is perfectly possible to deny legal positivism, and in fact someone like Ronald Dworkin would do so very strenuously and (b) we aren't lawyers here. We aren't engaged in disputation over what the law is, but rather what it should be. So a resort to legal positivism is an empty move, one that fundamentally doesn't tell us anything. HORansome would be pushed to declare that the murder was legal if the courts allowed it, which tells us that whatever it is he is discussing, it isn't anything we care about as far as wrongful convictions go!
-
Well, good luck finding a society, whose rule of law agrees with your definitions, to live in , then.
Really? The argument that some laws are not law because they are unjust is pretty safe. It has, after all, the backing of Nuremberg.
-
I do not propose to explain why or how laws are legitimate. If I could do that, I’d be the Vinerian Professor. All I am saying is that if you can only define guilt in a legal sense, you haven’t done any real work.
Also, most people do in fact want legal guilt to relate to actual guilt, this is pretty obviously true, and again, it is fun to play Scalia and split hairs over legal guilt and innocence, but in fact, the bad man theory of law is not very satisfying, and is not very much in favour with anyone.
(In fact you can’t distinguish the legitimacy of laws and legitimacy of their enforcement because the law is what is enforced. This is especially important if you want to use pragmatic ideas of law because in that sense it really very much isn’t that case that it is against the law to download music, because for the bad man, there is no material consequence. )
In general you are assuming the result you want — so it is possible to accept that some laws are unjust but that you can be guilty of breaking them? But I don’t agree! I think you can say that unjust laws are not laws. And unjust verdicts are, arguably, not verdicts!
-
Except in fact the laws around copyright are widely perceived as illegitimate and in many ways are not law at all, in the sense that they don't have the classic lawlike attributes of (a) being followed or (b) being enforced.
And when people who commit crimes escape punishment, that also undermines the legitimacy of the judicial system, and this is an accepted factor in thinking around judicial systems.
Legitimacy in law is super important, and your proposal just doesn't have an explanation for what legitimacy is other than a circular `what the courts do', which is rather unsatisfying.
-
Er, that's not true. Suppose I am hauled up before a biased judge, and found guilty, without ever having committed a crime. Am I guilty? No, very much not. I am innocent. It is very attractive to head towards a totally pragmatic definition of guilt but the subsequent legal system lacks any legitimacy.
-
Yes. We are making a tradeoff, that for every ten etc. This has nothing to do with anything -- the courts can be wrong without there being no correspondence. The claim you are making about legal guilt is much much stronger, and has generally been rejected by legal systems throughout the world. In general attempts to play silly buggers with the concept of legal guilt are corrosive to liberty and public trust in the judicial system. This is why Scalia condemns a man to die saying that he is not concerned with factual innocence, merely judicial correctness.
-
yes yes, have fun playing in the formalist lands of guilty-if-in-jail etc. But when we get back to earth, there is a crisis of legitimacy in a legal system where legal guilt doesn't correspond to actual guilt.