gaps in the law

Question 1

what does a law have to be in order to produce a gap

Answer 1

• a law can only have gaps if the law is mostly pretty decent
• when a morally pretty decent law is telling you to do something, but your morals are telling you to do something else

Question 2

what are the two arguments for why Alexander and Sherwin think there must be gaps in the law

Answer 2

argument #1- lawmakers are not omniscient beings and thus cannot create laws that anticipate all future problems that may challenge the “concrete conditions” of any given rule. furthermore even if lawmakers had this ability the rule would be too complex for practical application

argument #2- People following the law need it because they are irrational, considering this they will likely be unable to interpret and apply a super specific and lengthy law. laws are supposed to be designed for failures of reason and thus should no be hard to reason/interpret themselves.

Question 3

what is the connection between gaps in the law, authority and reasons for Alexander and Sherwin

Answer 3

• gaps in the law exist and we need authority because we need guidance.
• advocate for going with your best judgment when faced with a gap

Question 4

what is the connection between gaps in the law, authority and reasons for Raz

Answer 4

• argues that we should follow authority when faced with a gap because you are more likely to be better off in the long run, because the law takes into account your dependent reasons.
• a legitimate authority takes into account your dependent reasons and then gives you preemptive reasons to follow the law, which take place of all other prior dependent (first order) reasons
• you are more likely to be better off following the law + the idea that the law has already considered your reasons for doing x/ is aligned with your initial reasons

Question 5

what is the connection between gaps in the law, authority and reasons for Hurd

Answer 5

• the law does not give you reasons for action but rather reasons for belief which can be weighed out against initial first order reasons for action.
• authority does not give you preemptive reasons to follow the law, it can only ass to the previous reasons to either do or not do x
• when faced with a gap we should look to a legitimate authority to give us additional reasons to either do or not do x

Question 6

what is the connection between gaps in the law, authority and reasons for Brand-Ballard

Answer 6

• does not focus on authority, only gaps in the law
• He thinks that the law gives judges a prima facie reason for following the law which can be outweighed.
• reasons to adhere or deviate may depend on circumstance- argues that we have stronger reasons to adhere so as to not contribute to issues of complicity in mimetic failure or free riding