ITS APPEAL

  • At heart of any positive conception of law (conventionalism or law as integrity) is its answer to q why past politics is decisive of present rights.
    • Conventionalism answer: past political decisions justify coercion because, and there ofre only when, they give fair warning by making the occasions of coercion depend on plain facts available toa ll rather than on fresh judgments of political morality, which different judges might make differently. Positive claim serves this ideal. Negative claim, no so obvious, but also serves this claim.   Danger that from point of view of popular ideal it is accepted that principles can be part of law for reasons not reflecting convention but just because they are morally appealing. ( Accident attorney abogados de accidentes )
  • Conventionalism protects authority of convention by insisting that conventiaonl practices establish the end as well as the beginning of the past’s power over the present.
  • Conventionalism’s negative claim also serves popular ideal in a diff way (if you add set of claim about how judges should decide hard cases when convention has run out).
    • Namely that judge in cases where no law, makes decisions with deference to institutions that conventionally make law and not so muc his personal or moral convicitons.
  • But above not as good as actual institution making decision, as finding an actual past decision because judge may be mistaken in his thoughts on what institution would have chosen.

LEGAL CONVENTIONS

  • Conventionalism is an interpretation of legal practice and tradition. So must begin by asking how far legal practice exhibits conventions. Even if find convention, appeal of conception still depends on political ideal of protected expectations.
  • Do we have conventions conventionalism needs? It iinsts that legal practice as whole, even if not always, is organized around important conventions. So defend this, must show that behavior of judges generally, even if not conventionalists, converges enough to allow us to find convention in that convergence
  • Seems easy at first sight: congress makes law, judges give weigh to precedent, easy. So crucial interpretation of voncetinalism seems to be reflected in ordinary experience. Lets take a closer look
    • If judge decides case – he may identify a convention but must still have a closer look and decide WHAT actually flows from it in any given case.
    • And judges very often disagree about correct answer. Shows us, more is needed about what convention is, how much and what kind of agreement is necessary in order that a particular proposition of law can be true in virtue of particular legal convention.
    • Philosophers usually have limited and precise conventions in mind when discussing them. Yet, two lawyers have different take on best interp. Of practices of leg or precedent because of their general political and moral convictions.
    • To take away ambiguity, make technical distinction:
      • Explicit extension: set of propositions which almost everyone said to be a party to convention accepts.
      • Implicit extension: set of propositions that follow from best or soundest interpretation of convention, whether or not these form part of explicit extension.
      • g: convention = both sides must be heard in a case. But disputed if this also means equal time. Thus, explicit extension only includes that all must be heard. Implicit = that they get equal time.

 

TWO KINDS OF CONVENTIONALISM.

  • Distinguish two kinds of conventionalism:
    • “Strict”: restricts the law of a community to explciti extension of its legal conventions (like legislation). (This would be very restricted conception of law)
    • “Soft” conventionalism: Insists that law of community includes everything within the implicit extension of these conventions.
  • If conventionalism is strict conventionalism, its positive claim offers no help to judges faced with problematical lawsuits. Soft part of convetionalism tells judges to interpret according to their own interp. Of legislation and precedent even if controversial.
  • So strict conventionalist must accept gap in his law, soft doesn’t. Gap, because calls for exercise of extrajudical discretion to make new law when statute vague. (because soft has implicit extension)
  • Soft conventionalist could even work if not even consensus that constitution is fundamental law. He could find even more abstract convention to find justification for coerecion.
  • So soft conventionalism not really conventionalism at all in spirit of tri-partite distinction…. but rather, its an abstract undeveloped form of law as integrity. —-
  • So if conventionalism is to provide distinct and muscular conception of law — must be strict. SO must test this now.

 

To harm a person = to diminish his prospects & adversely affect his possibilities

  • The principle of autonomy is consistent w/enforcement of morality à purpose: compare the scope & justification of Mill’s harm principle w/autonomy based freedom.
  • One harms another when his actions make him worse off than he was/is entitled to be in a way that affects his future well being, so if the govt. has a duty to promote autonomy of people, the harm principle allows it to use coercion both in order to stop people from actions which would diminish autonomy and in order to force them to take actions required to improve their options & opportunities.
  • Even if we aren’t directly causing harm; e.g. by not paying taxes, it’s still harm to un-assignable individual – one causes harm if one fails in his duty to a person/class of persons, and they suffer as a result. That’s so even if allocation of loss was determined by other hands (e.g. taxation).
  • So the harm principle allows full scope to autonomy based dutiesa person who fails to discharge such duties towards others harms them, hence govt. whose resp. is to promote autonomy of citizens is entitled to redistribute resources, provide public goods & engage in provision of other services on compulsory basis, provided its laws reflect and make concrete autonomy based duties of its citizens.
  • Coercion is used to ensure compliance w/law and, if the law reflects autonomy based duties, then failure to comply harms others and principle of harm is satisfied.
  • Harm principle can be vindicated once interpreted not as restraint on pursuit of moral goals by the state but as indicating the right way in which it could promote the people’s well being. Given that they should lead autonomous life, state can’t force them to be moral but it can provide conditions for autonomy. Using coercion invades autonomy, thus defeating the purpose of promoting it, unless done to promote autonomy by preventing harm. Seen in this light, harm principle allowed perfectionist policies, so long as they dpnt require resort to coercion. The principle thus sets a necessary condition but doesn’t justify all uses of coercion to prevent harm.
  • A culture which doesn’t support autonomy yet enables its people to live an adequate & satisfying life should be tolerated, despite its scant regard for autonomy but it will be inferior to a liberal society. So long as they’re viable communities, offering acceptable prospects to their members, they should be allowed to continue in their ways.

A perfectionist (govt. has legitimate interest in promoting certain views of what the good life is) but supported view similar to Mill’s by putting forward views grounded on 4 principles.

  1. People’s lives are successful & fulfilling to the extent that they’re spent in whole hearted engagement in valuable activities & relations
  2. For most people, autonomy is an important component of living a good life
  3. Moral pluralism (variety of moral goods & variety of ways of living a morally good life, which are in theory or in practice inconsistent)
  4. has a duty to promote the well being of people which entails making sure attractive options are available and meaningless and worthless ones are eliminated.
  • Government has a place in shaping options available to its citizens but the combined importance of autonomy and liberty severely limit circs in which coercive moral paternalism is justified
  • Distinguish this from purely prudential arguments that law should refrain from acting for certain kinds of moral objectives b/c it isn’t well suited to achieving them.
  • Finnis – but by the very nature of things one can’t enforce someone to act morally through threat of legal sanctions. It’s in the nature of moral action that one voluntarily makes the proper choices. To that end, choices coerced through fear of legal sanctions may lead to people conforming outwardly w/choices required by ethical code but will lack crucial inner purpose & intention.
  • Dworkin – even if the threat of crim sanctions coerced someone into giving up an immoral lifestyle, and he came to even appreciate & endorse such change, this person’s life might still not be better – we wouldn’t improve someone’s life if the mechanism we used to secure that change lessened his ability to consider critical merits of change in a reflective way.
  • NB: both of these arguments discuss value of state coercion from perspective of individual coerced but don’t touch upon justification based on social good; i.e. that soc is better in some way b/c it has fewer people who act in an immoral way.