Nicos stavropoulos why principles

It is to explain how obligations come to obtain, and therefore what their content is. No prior question of content is taken as settled, and no further question of force is left open. Since it rejects the orthodox view that institutions communicate or tacitly endorse valid legal norms, pure interpretivism has no use for the orthodox notion of norms understood to play substantial explanatory roles or for a metaphysically important notion of a law, as distinct from the informal notion that picks out statutes or other legislation and is not a doctrine about conditions of validity.

Legal norms or rules or other standards may figure in conclusions of reasoning that summarize the legal effect of institutional practice and are useful for exposition. Since standards so understood are derived from the explanation of the legal effect of practice, their existence is not constitutively responsible for the effect.

They may also play an epistemic role: we may draw inferences about what rights and obligations exist from tried and tested formulations of standards, but the inferences are always subject to independent confirmation and the formulations are subject to revision.

A related point concerns the structure of the explanation. On the orthodox explanation of law, institutions issue directives. The impact of each individual institutional action is therefore distinct: it is the addition of some valid norm to the law. Norms so constituted are then weaved together to form the complete content of the law.

This is not to deny that some of the norms may concern precisely how to weave norms together, for example by stipulating that lex posterior derogat legi priori. The explanation is in that sense atomistic. Since it holds that morality determines how institutional practice affects rights and obligations, it inherits the holistic structure of morality: the whole of morality confronts the whole of institutional practice and determines its effect, which interpretation purports to identify.

Particular episodes in institutional practice, say the enactment of a new statute, change rights and obligations by changing the content of the practice and therefore its moral effect. The notion of justification is very different on this view.

Moral facts fix the relevance of other factors. The moral principles that reflect those facts do not add content to the law, to be combined with content otherwise contributed by institutions. The moral facts are therefore the grounds of law, but do not directly determine its content. They determine how institutional practice determines the law, i. A familiar hypothesis of that kind involves the principle that disputes that are like in morally relevant respects should be treated alike.

This hypothesis dictates identifying morally relevant respects in cases, which introduces a role for further hypotheses involving more specific principles that pick out those respects. Consider an imaginary case, Roe v Doe, where Doe is ordered to compensate Roe for the damage that she incurred, which was caused by his action.

In the currently relevant sense, a principle, e. If it did, it would normatively explain why Doe was ordered to pay -it would show how it's right that he was. At the same time, the principle would determine how this decision would bear on other cases, given the duty to treat like alike. It would reflect the facts that ground the duty of due care and the liability that due care entails that is articulated by the principle. A principle that figures in such a hypothesis must, first, justify resolving an actual or hypothetical contested case in a particular way; and, second, justify resolving past actual or hypothetical settled cases, i.

Hypotheses of this character have similar functions, whether they concern the action of institutions or of litigants. By picking out the morally relevant features of some aspect of institutional practice, hypotheses of principle function as explanations of the legal relevance of that aspect of the practice today.

Candidate factors are not restricted to what institutions said; nor are they restricted to what settled legal opinion considers relevant. Perhaps the court said that the fact that the damage was caused by Doe's carelessness was what made it the case that he had to pay. But the court might not have said so -it might have mentioned something else, or said some conflicting things.

Or it might have mentioned carelessness and damage, but failed to say whether the magnitude and likelihood of the damage compared to the burden of precaution were germane to the standard of care that Doe failed. Would the fact that the court failed to mention these considerations rule out their relevance to future cases? The answer would depend on some further principles that explained why and how past decisions as a kind are relevant, if they are, to instant cases.

If courts should respect their past decisions because doing so reduces uncertainty and other costs of economic transactions, a principle that the court failed to articulate might be irrelevant to the bearing of a case on future cases.

But if courts' responsibility is to engage with their past decisions because they must act with integrity, such principles may be decisive. These complications are not special to case law. A number of candidate factors might plausibly determine a statute's effect on legal obligations. The plain meaning of the text of the statute; the actual linguistic intentions of certain members or the assembly as a whole on some specification of corporate linguistic intention to say or state something by producing the text; their intentions to change legal rights and obligations in a certain way, i.

Often all of these considerations will pull in the same direction, so the choice among them would make no perceptible difference.

But they needn't, and we can always construct hypotheticals to test their relative contribution to the impact that some decision has on the law. For pure interpretivism, interpretive hypotheses are such tests and are designed to support the relevant theoretical choices.

The hypotheses appeal to principles of political morality that justify some particular aspect of the institutions' action having a role as a determinant of rights and obligation. By doing so, they aim to establish, for each candidate determinant of law, its precise impact on the law, including its impact when some other candidate pulls in a different direction. Candidate relevant factors include considerations -texts, practices, or attitudes- that concern the very question how candidate determinants bear on the law.

Intentions about which intentions count, mentioned above 29 are such factors and canons or conventions of interpretation and procedural provisions are familiar further examples. These are not exempt from the question why and so how they should bear on the law.

Something other than the factors must determine their relevance to the law, even when it is pre-theoretically plausible that they are indeed relevant.

For example, an interpretive convention tends to have a significant effect on expectations about how the relevance of the other institutional factors that the convention concerns would be assessed in court, such that considerations of fairness favour conforming to the convention. If so, the convention is vindicated by considerations other than itself, and this holds for any similar factor. In this conception, the difficulties of hybrid interpretivism do not arise.

Principles have the role of identifying the legally relevant aspects of institutional practice. Principled consistency in this conception therefore consists in consistency in the morally relevant respects of the practice. Principled consistency so understood has no room for prior or residual concern about fidelity to the practice. The pure interpretivist would say that, since it is not the case that we compare moral ideals with some nonmoral code of norms constituted by the content of institutional communication, the question does not arise whether we ought to trade merit for consistency, to weaken our morality to make it compatible with our history.

Or whether we should treat some ideal as a ground of obligation just because our institutions have not clearly said anything inconsistent with it.

Since we ask in what ways institutional history is morally relevant, the correct answer is determined by moral fact, not a moral approximation or an ideal diluted by history. Yet the answer does not describe ideal arrangements -those we should want to have, prescinding from institutional history- but the normative significance of the arrangements we do have. So we shouldn't worry about our morality being too perfect for our history, or not as perfect as our history might let us get away with, or about how to choose between the two.

We deploy morality, as is, not to compare it with history but to find what difference history made. We have been discussing the question which aspect of institutional practice is relevant to legal rights and obligations. But how is it that some or other aspect of institutional practice is so relevant? The pure interpretivist case would be severely undercut if at that abstract level morality played no role in the explanation of relevance. Pure interpretivism offers a thoroughly moral explanation of the normative relevance of institutional practice, by identifying a moral concern that gives the practice such relevance.

It characteristically begins at some familiar, structural features of legal practice, whose existence is usually tacitly assumed. The first concerns the institutional character of law. It's an unspoken fundamental assumption in law that claims of legal right or obligation are claims grounded, in some appropriate way, in past institutional decisions and standing practices of government -in actual not ideal institutional arrangements- and that only claims so grounded shall be recognized and enforced.

Call that kind of grounding the legality of a claim. The second concerns the role that the legality of a claim is supposed to play in relation to some moral concern. It is not merely uncharacteristic but also impermissible for legal institutions to enforce some claim against a person, unless the claim meets the conditions of legality by being appropriately grounded in institutional practice.

This is not the discredited claim that what it is for a legal obligation to take some action to exist is for some sanction to be attached to not taking the action, or that a coercive clause must of necessity be attached to every law. Rather, it is the claim that putative rights and obligations may be enforced through the institutions of government only when they bear a certain relation to the institutions' practice.

This is a normative constraint that is not dependent on whether occasion for enforcement ever arises. It is closer to Kelsen's view that legality is at bottom a boundary separating permissible coercion exercised in the name of the community and impermissible coercion not so exercised.

A familiar hypothesis is that the moral concern in play is raised by institutions' effective power to use force or otherwise coercively to direct citizens' action. Legality is supposed to constrain or regulate that power, by constituting a necessary condition that demands against persons must meet if they are to be permissibly enforced. Notice that in this role, legality is not a moral filter, a moral condition of validity of norms. In the hypothesis in discussion, there is no pool of candidate norms, identified by nonmoral tests, to be put through a further, moral test, before they are pronounced finally valid.

Rather, legality is a condition of permissible enforcement of demands against a person, a special moral test that applies to any such demand, including those that are entirely unfounded as well as those that may pass other moral tests. On this view, it is essential to law that the legality of a demand -its being grounded in institutional history in the right way- is a condition of its permissible enforcement.

This is a claim that is at once metaphysical -a claim about the nature of law- and normative -a claim about the morality of coercion. It says that the correct explanation of why institutional history should have the role of constraint on coercive enforcement a substantive normative explanation of a political ideal that makes history morally relevant to the permissible enforcement of claims determines the correct explanation of how institutional history determines legal rights and obligations the constitutive explanation of what it is, more precisely, for a claim of right and obligation to be grounded in institutional history in the legally appropriate way.

This general explanatory template can be filled out in a number of ways. The best known 33 begins at the claim that what explains the role of institutional history in the identification and enforcement of obligation is that government's action should be consistent in principle -some version of the virtue of treating what's morally like alike, perhaps ultimately to be explained by some combination of reasons of fairness and government's special duty to treat citizens as equals.

This approach is based on the view that, emergencies aside, it is wrong for government to exercise its power to coerce if such an exercise is not allowed by law.

Here, the law is meant to work as a constraint on government's action, and its role as a constraint is claimed to be valuable. Recall that the constraint follows from moral fact, not the logic of institutional action.

If government is to stand behind my request coercively to enforce my demand against you, it must justify its action by appeal to its institutional practice. The explanation of the role of legality in the exercise of coercive power is that government is under a standing obligation always to act in line with an honest conception of justice.

It cannot begin to meet this obligation unless it takes what it has said and done on pertinent issues as relevant to what it may do now. Justice is egalitarian in character. The familiar requirement of treating morally like alike would bind government to use force on a given occasion in the way it has used or would use it in any other actual or hypothetical circumstances relevantly similar to the instant one. Principled consistency in the use of force does not mean, in this, nonhybrid conception, that government is bound punctiliously to apply all norms created by the directives of authorities according to their terms, or to repeat past mistakes.

The claim is rather that the morality of coercive interaction makes institutional practice relevant to what may or must be done now. Government must take its other action legislation, cases, etc. Any past action that cannot be justified under the scheme that justifies the rest is action that is not after all relevant to what is to be done now, and is to be set aside as mistake.

We must revise our understanding of principles on which we acted in the past, which may have led us to such mistakes. Since government must make its action consistent in principle rather than formally , the conclusion we should derive from this normative explanation, suitably elaborated, is that certain moral principles that together justify institutional decisions and settled practice determine legal rights and obligations.

These are moral rights and obligations that bear the right relation to institutional practice, which therefore government may enforce, and must do so on demand, through its institutions. On this view, the morality of coercion fundamentally explains the normative relevance of actual institutions. On this hypothesis, duties of justice whether or not egalitarian, as many philosophers suppose obtain in virtue of the political relation that holds among those who are placed under the coercive control of some government, and are discharged by designing institutions in a way that meets certain constraints.

The question is underexplored in relation to law, where we are concerned with the normative effect of actual arrangements. This view has become more or less the orthodoxy in modern jurisprudence. I argue that an interesting and plausible possible role for coercion in the explanation of law is untouched by the arguments in support of the orthodox view.

Since my main purpose is to clear the ground for the alternative, I spell out the orthodox view in some detail. I then briefly sketch the alternative. Finally, I turn to Jules Coleman's discussion of the alternative. ISBN: The tough question is how exactly that works: which kinds of political action have a law-shaping effect and how they produce that effect. Consider the enactment of a statute.

Which precise aspect of the action is relevant to the legal impact of the enactment the change in legal rights and obligations that obtains without further such action? But the concrete rights upon which judges rely must have two other characteristics. They must be institutional rather than background rights, and they must be legal rather than some other form of institutional rights.

Their institutional dependence implies that, while legal rights are genuine moral rights, they differ from nonpolitical moral rights because they are subject to moral constraints appropriate to enforcement.

On this view, legal rights, defined as rights to some decision by the courts, are directly connected to enforcement. Other political rights are indirectly so connected.

Ronald Dworkin , Justice for Hedgehogs They also differ from the rights that we would have if institutional history were different, so it is always appropriate to distinguish between the question what such rights exist, given the actual history of institutions, and what rights should exist; that is, what rights would exist in some ideal alternative world where institutional history has taken a different, better course. Dworkin , Hard Cases , supra note 3, at 87, ; Dworkin , Justice for Hedgehogs , supra note 21, at on the dynamic character of the morality of institutions.

Legal rights so understood obtain ultimately in virtue of certain principles of political morality that make institutional practice morally significant. See Dworkin , Hard Cases , supra note 3, at — In civil society, we are all vulnerable to demands that others place upon us, and it is vital that the collective power to enforce such demands be limited in a way that respects the fundamental equal dignity of all.

I said that we as governors, we in our political role, must treat each of us in the governed with equal concern. Something must account for the difference. We are all in a position to be harmed by others in a way that would not be licensed by personal morality. It follows, Dworkin contends, that legal rights are those rights that bear such a relation to institutional practice as to make it the case that their enforcement would meet the requirement of principled consistency.

Dworkin , Justice for Hedgehogs , supra note 21, at —09 ; LE , supra note 3, at 93—96, LE , supra note 3, at Raz , Authority, Law, and Morality , supra note 11, at Zalta ed. Hart himself joined them, even if only posthumously.

To see this disparity, we need to consider more closely how exactly Dworkin understands moral principles as grounding legal rights and obligations. Everyone thinks that propositions of law are true or false or neither in virtue of other, more familiar kinds of propositions on which these propositions of law are as we might put it parasitic.

It could not be true if nothing of that sort had ever happened; it could not then be true just in virtue of what some ghostly figure had said or what was found on transcendental tablets in the sky. LE , supra note 3, at 4. As Dworkin points out, it seems obvious that the law is related in such a profound way to certain institutional facts. Recognizing this kind of fundamental dependence of legal facts on social facts about institutions raises further questions.

How do institutions shape the law? What exactly about the actions of legislators matters to the law and why? Why should institutional action, as a kind, bear on the law in the first place? Why should it matter that some institution said or did something in the past, when we face the question of what we ought to do now, or what demands government may currently enforce on people?

There are importantly different answers to these questions, and the uncontroversial thesis that the law depends on institutional social facts does not discriminate among them. Rosen says that this failure illustrates the philosophical need for explanatory accounts of constitutive determination or grounding.

Professor Mark Greenberg shows that accounts of the nature of mental contents restricted to relations of supervenience between mental and metaphysically more basic facts conceal various interesting possibilities, including the possibility that normative facts might play some role in the fundamental explanation of the mental. Issues , , —14 Professor Kit Fine argues that grounding explanations go beyond modal connections between explanans and explanandum.

Each conception [of law] furnishes connected answers to three questions posed by the concept. First, is the supposed link between law and coercion justified at all? Second, if there is such a point, what is it? The answer a conception gives to this third question determines the concrete legal rights and responsibilities it recognizes.

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