midterm II philo paper

midterm II philo paper - Rowland 1 Weston C. Rowland Andre...

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Rowland 1 Weston C. Rowland Andre Marmor Phil 430 11/17/2010 Midterm II FORMALISIM In chapter seven of his book on legal positivism heart presents a continuum of legal theory. At one end of this theory is Heart presents formalism. Formalists, according to Heart, make the several claims(1) that the law consists of rules. (2) legal rules can be meaningful. (3) rules can be applied to particular facts( 4) some actions accord with meaningfull rules; others do not and (5) the standard for what constitutes following a rule ‘vel non’ can be publically knowable and the focus of intersubjective agreement. All this amounts to the conclusion that the role of the judiciary in authoring leagal rules is very minimal. Heart says that this ideal of the perfect rule simply cannot exist in our world for the reasons that, one; we predict all possible outcomes and two; because "In all fields of experience there is a limit, inharent in the nature of language, to the guidence which general language can provide" (Heart 126). As a result of languages inherent ambiguity Heart suggests that there will be points “application is in question” and it is these ambiguities which give the law, what Heart calls, an ‘open texture’(Heart 128). COMMAND THEORY SKEPTICISM At the other end of the spectrum lies Rule Skepticism. Rule Skeptics like Austin would very much agree that the law has an ‘open
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Rowland 2 texture’, and infact take the concept further to suggest that all law has this open texture. To put it differently, Law is simply the consequence of the authorities’ commands. In this case the authority is primarily the decisions of the courts. In response to these premises Heart does not abandon his assertion that the courts have an ‘open texture’, but rather he attacks the command theory itself. He points out that just the fact that courts exist is evidence that there are more than just commands to the law. As heart points out in order for the courts to create commands there must be ‘secondary rules’ which “give the court’s jurisdiction over such matters and makes their decisions authoritative”(Heart 136). This seems to be universally accepted as a cogent argument, for if we lived in a world without secondary rules any and every person would be an authority on what is and is not legislation. AMERICAN LEGAL REALISIM A second more moderate version of skepticism concedes that there may be secondary rules but denies that these statutes are law until applied by the courts, This position is very similar to that of legal realism which accepts the existence of constitutions and precedent. The claims made are something like the following:
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This note was uploaded on 11/29/2010 for the course POSC 130g taught by Professor Below during the Fall '06 term at USC.

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midterm II philo paper - Rowland 1 Weston C. Rowland Andre...

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