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« The Irrelevance of Gay Marriage to European Identity, and the Absence of Religion in the United States | Main | The Spam of Jordan Shoes and Coach Outlet Stores »

01/04/2011

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Steve Shiffrin

Patrick, I very much enjoyed reading your post. I think I am wedded to the internal/external distinction, but I am not sure you disagree with my perspective.
I believe that rules, (moral) principles, and policies are part of law and judicial interpretation. See Law's Empire. But law is not exclusively about morality or justice. If I were a judge and were asked to declare the Senate unconstitutional, I would hold that the Senate is a fixed part of our law. Similarly, I would hold that a governmentally guaranteed annual income is not required by the equal protection clause though scholars such as Tribe and Michelman disagree. But I strongly believe that the political power afforded to the Senate is unjust and the failure to support the poor is moral leprosy.
From an external perspective, then, parts of our law are profoundly unjust. This does not make them not-law. As David Lyons and others have argued, the external perspective leaves room for criticism. I do not think that the external perspective needs to deny that moral principles properly play a strong role in the development of law. I am not sure we disagree, but am interested to know. Perhaps I did not read carefully enough, but it seemed to me that in defending the role of morality within law, you came down too hard on the external perspective.

Patrick S. O'Donnell

Steve,

There's nothing you said I disagree with and, just to be clear, I don't think Brooks is using the internal/external model of Hart but rather his own ostensive or stipulative definition, at least I don't recall any reference to Hart (perhaps it was assumed). In any case, I'm interested in the conceptually normative and justificatory moral nature of law (hence the references to Plato and Kant), and this in no way rules out all the other myriad things any legal system encompasses or the various instrumental purposes to which our laws may be devoted (by design or default). Related to this is of course the well-worn distinction between legal validity and legal legitimacy and these are indeed distinct and I remain a positivist with regard to the former, as you are above in reference to the Senate being a "fixed part of our law." I suppose I would simply say that the sort of injustice one might nevertheless attach to this legislative body is a conception intrinsic to our understanding of the moral value(s) and justice of law, which allows for the possibility that we may someday replace such a legislative body with one more accord with our moral intuitions and principles of justice as realized through law (and evidenced elsewhere in the law: Hegel noted, for example, the contradictions in Roman law which allowed for the possibility of critique by way of a more consistent application of existing legal principles....).

And many thanks for taking the time to read the post!

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