Dworkin, Habermas and 'Interpretivism" Flashcards
What does Dworkin’s semantic sting criticise?
Positivism/Analytical jurisprudence
What is Dworkin’s ‘Semantic sting’?
On the premise that the law is purely semantic, there can be no arguments regarding the grounds of law.
Arguments are only effective if we all accept the same criteria for deciding when claims are sound.
This prevents one from seeing the legal-argumentative dynamics that underlie cases, giving us an incomplete picture of the law.
eg. pugs cannot be allowed into your house. the rule is that a pug is a 4 legged fat pet that barks. However, if you have a pug that is skinny, 2 legged, and meows, both parties are arguing past each other, each with their own merit
What is Dworkin’s interpretation theory?
Dworkin believes that arguments regarding the grounds of law exist, and they stem from the process of legal interpretation.
What is Dworkin’s aesthetic hypothesis?
Interpretation is a device that reveals a text in its best light.
When interpreting and improving a text, interpretation does not change the identity of the text.
The text provided constrains the interpretation via its identity, derived from express words.
However, the interpretation must be coherent with society’s larger belief system.
What does Dworkin’s legal interpretation comprise of?
- The interpretation must fit what is practised and show its point.
- The interpretation must respect what the law is doing and the integrity of the legal system as a whole.
What are Dworkin’s stages of interpretation?
- Pre-interpretation: Identify relevant “rules and standards” with regards to particular law
- Interpretive stage: Justifications for the ‘main elements of the practices’ identified in the first stage.
- Post-interpretive: ‘adjust his sense of what the practice ‘really’ requires so as better to serve the justification he accepts at the interpretive stage.
Who is Habermas?
Famous for discourse theory. He is interested in understanding how discourse contributes to cooperative human behaviour, especially when dealing with states and politics. He is also not a positivist.
What are the rational-discursive elements of discourse?
- Language must be oriented to mutual understanding. There must be a rational discussion aimed at rational consensus , as opposed to a discussion aimed at influencing people’s actions in a particular way.
- A norm is “valid” when we all agree that it is important and it serves our collective interests.
- Rational acceptability of validity of claims depends on the way social actors coordinate their action by reaching an agreement.
cf. argumentation is dialogical and is instead about convincing
What is the difference between pure speech and strategic speech?
Pure speech: individuals only make statements that they believe are really true.
Strategic speech: there is no particular value in speaking a truth if a lie can influence people’s behaviours in some way
What are the three types of pre-requisite rules for Rational Practical Discourse?
Logical, Dialectical, Rhetorical
What are the logical rules for Rational Practical Discourse?
- 1 No speaker may contradict himself
- 2 Every speaker who applies predicate F to an object A must be prepared to apply F to every other object which is like A in all relevant respects (have to treat cases alike)
What are the Dialectical rules of Rational Practical Discourse?
- 1 Every speaker may only assert what he really believes (no strategic speech)
- 2 A speaker who disputes a proposition or norm not under discussion must provide a reason for wanting to do so (must stay on point)
What are the Rhetorical rules of Rational Practical Discourse?
- 1 Every subject (person) with competence to speak and act is allowed to take part in the discourse
- 2 Everyone is allowed to (a) question and (b) introduce any assertion, and (c) express his attitudes, desires and needs
- 3 No speaker may be prevented, by internal or external coercion, from exercising his rights laid down (3.1) and (3.2)
How is Rational Practical Discourse related to the law?
- Law involves not just pure speech, and there are elements of intellection coercion
- Legal discourse is a specific “institutionalisation” of moral discourse.
- Legal discourse is found in the distinction between idealised rules of (moral) discourse and “conventions serving the institutionalisation of discourse”.
How can we say that legal discourse is “rational”?
- It is a form of conflict resolution
- Provides a critical instrument for testing the adequacy of decision-making in constitutional democracies, and allows for the determination of the legitimacy of law
