riassunto law and truth prima parte, Appunti di Filosofia del Diritto

Scarica riassunto law and truth prima parte e più Appunti in PDF di Filosofia del Diritto solo su Docsity! Ernest Weinrib When is a legal proposition true? The main concerns of Weinrib are to keep law separate from other subjects such as politics and to explicate decisions which belong to different domains, private law and public law, with two different kind of justice (corrective and distributive justice) conceived by Aristotle. In order to reach these two aims, it is necessary to state and understand legal propositions from an internal perspective. So we can define true a legal proposition when it is coherent with its structure correctly understood, i.e. if it is explained from an internal point of view and so if it is understandable from an internal point of view, i.e. if it is immanent intelligible. Weinrib asserts that the coherence as an internal criterion of truth is the best as to explain something by relying to something else which needs to be in the end immanent intelligible, means to lose the unity of the first concept that we were trying to explain. This is a problem to the philosopher as in his opinion elements that comprise a legal form “are cognizable only through unity they comprise, the intelligibility of each simultaneously conditions and is conditioned by the intelligibility of all the others”. However, in this way Weinrib denies the possibility to verify the truth of our premises. In fact, if I have to rely only on an internal point of view, I can assert for sure that what I’m saying is correct and that other positions are false. What is law? As the intelligibility of something as a “this” and not as a “that” depends on the necessary integration of form and content, law is what its necessary integration of form and content determines it to be. However, as Patterson show us with the example of the table, the statement of Weinrib is false. In fact, the identification of something as a “this” depends upon the recognition of the role of the form in social life. It is the things we do with table, our reasons for having them, which determine what count as a table. Thus, we can affirm the same proposition also for law, which is not as such because it has that precise and necessary integration of form and content but because we do those things and we have those reason for having it. Character structure genericità lamb v Lindon borough of camdem Legal formality Michael Moore Premises Michael Moore believes that moral and natural world are in a real sense the same, that is that thigs such as causal relations and moral turpitude exist in the same way (one-worlder). The way in which they exist is independent from what everyone’s believes about them. Truth about these entities is not a matter about believes, it is a matter of correspondence between sentences about them and the way in which these entities are (realist). Furthermore, the real way in which they are may be, but is not necessarily to be discovered by us. Therefore, conventions, are provisional theories about the nature of the things referred, to be put aside whenever a better theory about the true nature of things demands to do so. When is a legal proposition true? With regard to legal propositions, central to Moore is the strict link between morality and law, he embraces the relational thesis according to which the truth of a legal proposition depends at least in part on a true moral proposition. Thus, considering the general scheme according to which truth depends on the correspondence between our statement and a mind-independent state of affairs in the case of legal propositions, the independent state of affairs to which they have to correspond to be considered true are moral objective truths. On this ground, he thinks that to obtain a true interpretation of e.g. the terms written in a statute, judges have to interpret those terms in the light of the best theory they can muster about the nature of the things to which those terms refer. (As Moore is a one-worlder and ad natural world is characterized by contingent truths it follows that he believes that also moral world’s truths are of a contingent kind. In this way he conceives just contingent truths, i.e. truths which are verify by a mind-independent state of affairs. Therefore, he misses completely the category of controversial truth which is fundamental to explain legal true.) What is law? As is not we who fix the meaning and reference of our terms, but it is reality, law is what reality suggest us about it. In fact, there is a matter of fact about the truth status about our beliefs about law, which matter of fact exists apart from the beliefs of anyone and the facts about law may be, but are not necessarily to be discovered by us. We can only advance theories, i.e. systems of beliefs, which are provisional theories about the nature of the things referred, to be put aside whenever a better theory about the true nature of things demands that judges do so. (problem: how do reality constrains in any way what we believe to be true? – how do we have a normative check about what we are saying about reality?) What does normative mean? As assertions in law are true if they are confirmed by a mind-independent state of affairs, it can be said that Moore considers them as hypotheses. So a proposition of law is true if there something external which verifies it. However, according to Patterson, legal assertions are not hypotheses, but claims, the truth of which is vindicated by intersubjective criteria, i.e. not external, mind-independent, but provided by those who take part in the practice of law. MAnca normative Sono ver se più soggetti ritengono le argomentazioni usate corrette Morali reality revisited Example of how truth means correspondence to an external state of affairs: A realist theory asserts that “death” refers to a natural kind of event that occurs in the world and that it is not arbitrary that we possess some symbol to name this thing. It may be arbitrary what symbol we assign to name this class of events. However, the term negotiable instrument is completely arbitrary. David Brink Legal theory, legal interpretation and judicial review Central to Brink is the role of interpretation in law. In fact, given the open texture of legal norms no theory of law can be adequate without some account of how problems of contextual indeterminacy are to be solved. Therefore, he criticizes the empiricist semantic theory according to which “the meaning of a word is the set of properties that speakers associate with it, and the meaning of a word determines its reference.” He asserts that this semantic theory fails to draw a distinction between the meaning of a term and anyone’s beliefs about its meaning. He, therefore, propose a “realistic semantic”, whereby the meaning of general terms is not determined by anyone’s beliefs about their meaning, but by reference to properties of the world. In fact, he asserts that there is no point in distinguishing between natural kinds and artificial kinds of terms as the meaning and the reference of legal terms such as the one of scientific terms is given by the way the world is. Brink, like Moore is a one-worlder, he, hence, commits the same mistakes. As Patterson notices, legal terms are mostly all matter of human institutional conventions, if there were no humans, there would be no such legal terms. So the correct way to know the meaning of a general legal term is to consult the conventions for its use set by the participants in legal discourse through interpretative arguments. Example of whale and fishes denies Brink natural kind semantic, by demonstrating that in that case is the congress belief which fix the meaning of a statute. As Patterson claims there can’t be just an exclusive semantic theory for legal interpretation. Real – in the world or according to the best theory we can muster about that matter? He affirms to intend real in the first sense, but actually he uses the term according to the second meaning. Herbert Hart What is law? Law is a system of rules. A rule is something which is conceived to impose obligations, but does so only if the general demand for conformity is insistent and the social pressure brought to bear on those who deviate is great. Legal rules are social rules as they originate from human social practices. However, legal rules differ from other kinds of social rules such as etiquette as they have an institutional character: their validity depends upon their origination from an appropriate source which is identified as such by the rule of recognition. Hart recognizes two kind of legal rules: primary rules which establish rights and duties and secondary rules to which belongs the rule of recognition which identify, clarify or change primary rules. The rule of recognition is central to Hart in identifying what is law; it does so by referring to a text or a list or by listing some general characteristics possessed by legal rules. With the conception of the rule of recognition, Hart introduces two more innovative notions: the idea of a legal system made of united and not disconnected rules and the idea of legal validity which is conferred by the rule of recognition itself.