Monday, June 14, 2010
Just to put Dworkin finally to bed - I really do find it quite baffling that anyone with any philosophical training at all can take any of his arguments for his theory remotely seriously: confusing, for example, a dispute about canons of interpretation of some text with a dispute about what the text is, as he does when he says in a 2004 article that disputes over the meaning of the clause in the US constitution forbidding cruel and unusual punishment show that legal positivism is false, is just stupid - let's observe what his general account of how to define social practices would involve. Dworkin's interpretative and so normatively guided theory of law depends on the view that since law is a normative practice, it cannot be defined or picked out except by interpreting it so as to put it in its best possible light. Science is also a normative practice - it seeks truth - so does that mean that we cannot define or pick out instances of science without making them seem as close to truth as possible? Is it true that unless I assume that Newton was as right as he could be, I would somehow fail to satisfactorily identify him as a scientist and the Principia as a work of science? Of course not. It's crazy to think that as soon as some practice is normative in any way, any definition of it must be structured around an assumed success in its attempt to guide itself by some value or other. If adopted as a general canon of attempts to say what some x is, this would totally undermine our use of all kinds of perfectly sensible descriptive terms. Either we would have to claim that people were guiding their participation in practices by some value which they did not recognise or had misconstrued, or we would have to claim that despite appearances, the practice in question did not exist there and then. We might imagine a Dworkinian theory of government denying that any had ever taken place anywhere before the Warren-era Supreme Court decisions, as governing just is a highly particular kind of equality - or, in a way even worse, claiming that every tinpot despot, bloody tyrant, racist, and genocidal maniac was in fact aiming at the distinctive goods of the practice of governing. How on earth anyone could think that this stood as a way of respecting the internal character of a practice, I do not know; it is subversive of the very idea of a practice by turning that into a claim about pursuit of goals when of course participation in any given practice is differently motivated for different people in different times and different places. Idiocy.
Friday, June 11, 2010
In preparation for teaching next year, I've been reading some fairly basic jurisprudence, mainly around a debate between H. L. A. Hart and Ronald Dworkin. The debate focuses on the question of the role of moral resources in filling out what a given system of law says, and so what law actually is. Roughly, Dworkin thinks that because accurately any given legal statute will require casting it in the best light possible, an accurate interpretation of any given statute and so what the law is involves using whatever appropriate set of true moral principles there are. Hart, on the other hand, thinks that the law may be indeterminate and that, in effect, the law is more or less whatever whomever the system designates as the relevant authority says it is, whether or not it has been interpreted in line with whatever appropriate set of true moral principles there are. Now, whatever else may be said in favour of either view, Dworkin's reasoning in favour of his claim involves a piece of rather interesting systematic blindness. Part of his argument depends on the thought that since law is a normative practice, it needs to be understood from the inside, from the point of view of its participants. For him, the relevant participants are lawyers, other lawyers in fact, since Dworkin himself is trained as a lawyer. So, on Dworkin's view, the people whose view of the law dictates what it is really like are those who make its decisions. The people who are actually subject to those decisions, wise or capricious, subtly reasoned or pieces of intellectualised brutality, apparently have no relevant understandings of the practice at all, nothing to bring to the project of understanding their fundamental character. Law is what lawyers do - or rather, wasn't that the other view?
Saturday, June 05, 2010
Walking back from Hampstead Heath this afternoon, I saw Stephen Byers in the street. As is presumably often the case, he looked shorter and fatter in real life than on the telly, and had a slightly shifty, dispirited look. This is something that wouldn't happen in South London I feel: no failed technocratic New Labour ex-ministers on the streets of Clapham; apparently Will Self, but not Stephen Byers.