From this point of view, the content of Community law depends on a conventional way of recognising legal rules. But if community members share a way of recognizing their right, how can they participate in the deep conflicts over the law that we all know so well? Dworkin has made this question a central point of the jurisprudential debate. And he framed the question as an objection to a mistaken view of language and the relationship between law and language. He began his book Law`s Empire (Dworkin 1986b) by arguing that legal theorists like Hart cannot explain theoretical disagreements in legal practice because they believe lawyers share undisputed tests (tests that Dworkin called “criteria”) for the truth of legal statements. The “semantic sting” implies the misconception that the language of the law can only make sense if lawyers share such criteria. It is fatal to a legal theory because it leads the theorist to believe that people cannot have a deep (or “substantial” or “real”) disagreement about the law. You can only discuss (1) empirical questions, such as . B what words have been used in a law, or (2) how falls in the darkness can be solved, or (3) whether the law should be amended. If you suffer from the semantic sting, you will conclude that disagreement over the criteria for applying the language of the law would be like using the same words with different meanings. People who disagree in this way only talk about each other. Thus, Dworkin exposed the views of theorists who suffer from the semantic sting: legal philosophers have tried to explain the normativity of law – the fact that the law of a community is or presents itself as a guide to the behavior of members of a community. An easy way to express this abstract feature of the law is to point out that the law can be explained by normative statements (i.e., statements that use expressions such as “obligation,” “right,” “shall,” “may”). And an attractive way to explain the normativity of the law is to explain the meaning and use of the normative language often used to establish the law.
That is, the problem of explaining the nature of legal norms (duties, rights, etc.) can be solved by explaining the meaning or use of normative words used in the law (“obligation”, “law” ,…). Joseph Raz put it this way: “The problem of the normativity of law is the problem of explaining the use of normative language to describe law or legal situations.” (1990, 170) Third, the legal context of an expression may be very different from other contexts of its use. Principles of legal interpretation (e.g. B a legal requirement that vague criminal decrees must be interpreted in such a way that they apply only in clear cases) may specify the legal effect of the use of a word as an ordinary effect. Interpreting a legal prohibition on negligent driving requires an understanding of what is considered negligence within the meaning of the law. The effect of a vague legal prohibition may be governed by precedents that exclude decisions that would otherwise be a reasonable application of vague language. Even outside the regulatory role of the previous one, a good lawyer or judge may have a relatively clear idea of the accepted practice in the application of the prohibition, and the practice may very well be not to treat certain behaviours as negligent, although it is fair enough to characterize them as negligent outside of that practice. The effect of using descriptive language may depend on evaluative considerations. For the philosophy of law, this dependence poses particular problems. If you cannot say whether an object should be designated as a “vehicle” within the meaning of the law without evaluative justification, then the legal effect of the Highway Traffic Act depends not only on physical facts (such as the fact that there were wheels on the chicken coop) and social facts (such as . B that Parliament has used the word “vehicle” in the act, or the complex social fact of the entire usage model made from the word “vehicle”). You can`t identify the law (that is, you can`t say what people`s legal rights and obligations are) without judgmental reasoning.
This conclusion, if valid, seems to have important implications for long-standing debates in legal theory about the relationship between fact and value in law and the relationship between law and morality. The conclusion seems to contradict one of the most provocative and controversial claims in legal theory – Joseph Raz`s “source thesis”: We should conclude that it is not only possible for an agency or person to make laws through the use of language; It is a central technique of the legal order (and the rule of law) that the law gives individuals and agencies the power to adopt certain legal norms and general legal norms. Reasons of political morality in this regard are indeed a valid ground for the content of the law, although the techniques that allow the effective distribution of legal power are also conducive to abuse. And both the moral value of the attribution of judicial power and its potential for abuse depend on human language: the most surprisingly useful tools for articulating policy and for transferring and exercising power. Dworkin somewhat obscured his brilliant argument by merging the flaw in thinking that legal philosophy is to disclose the agreed way of using the word “law” (see section 6.1 below) with the flaw of thinking that the content of a court`s law is determined by an agreement on the use of the words in which it is formulated. Pierluigi Chiassoni recently isolated the second vice, calling it the theory of “container recovery” (Chiassoni 2019, 113). In container retrieval theory, legislative language is filled with content by linguistic conventions regarding the application of the words in which it is expressed. The task of law enforcement is to identify the cases in which their words usually apply. In this approach, Garner v.
Burr was rightly decided whether English speakers were inclined to apply the word “vehicle” to a chicken coop on wheels in 1951. If they were willing not to meet the deadline, the case was poorly decided. And if, in any case, they did not have a common provision, then there was a loophole in the law, and the Court of Appeal had to fill it. In any event, as Dworkin suggested, the content retrieval theorist is doomed to conclude that competent lawyers cannot disagree in good faith about the law that has been made. But Dworkin would likely have extended his argument from the “semantic sting” to an argument that the communication model suffers from a “semantic and pragmatic sting” — that is, the misconception that the content of the law is determined by agreement both in terms of word semantics and communication pragmatism. He would no doubt have said that the only antidote to this sting is his theory of “constructive interpretation”, noting that the “pragmatic” aspects of the use of language in law include the attitude that the law must justify the use of state coercion, which obliges the interpreter to construct the theory of rights and duties that best fits and justifies the whole model of legal practice. This was Dworkin`s core claim. His semantic argument cannot in itself undermine the communication model, as his reasoning was based on an impoverished view of the controversy that can result from communication.
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