Stavropoulos why principles

The book shows that objectivism is a natural, common sensical position, and rejects the currently popular notion that objectivism requires extravagant or bizarre metaphysics. Furthermore, the discussion presents the opportunity to re-interpret major debates in jurisprudence and to show how influential theories, notably H.

Hart's and Ronald Dworkin's, bear on that issue. Epistemology, Miscellaneous in Epistemology. Edit this record. Mark as duplicate. Find it on Scholar. Request removal from index. Revision history. Download options PhilArchive copy. Google Books no proxy Setup an account with your affiliations in order to access resources via your University's proxy server Configure custom proxy use this if your affiliation does not provide a proxy.

Configure custom resolver. Semiotic Anthropology in Poland. Nicos Stavropoulos - - Mind Objectivity in Law and Morals. Brian Leiter ed. 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. As indicated above, nonhybrid interpretivism is not committed as such to the appeal to egalitarian concerns related to coercive enforcement. Alternative explanations that vindicate the assumed role of institutional practice in grounding obligations might be built on the basis of considerations of fair notice 37 or other key principles of political morality, perhaps including considerations related to authority.

A further question concerns boundaries. This is a matter of the first importance for the orthodox view, which purports to organize obligations by institutional source, but seems less urgent for pure interpretivism, on which no obligations are explained by institutional contingencies alone.

Recall that, on the current approach, some moral concern makes institutional practice relevant to rights and obligations, and the rights and obligations in question have genuine moral force. But it doesn't follow that just any action of government that has moral consequences, or even action that changes rights and obligations, and any change in rights or obligations that obtains in consequence of such action, is to be regarded as falling within the legal domain.

The interpretivist says that the justifying connection between institutional practice and legal rights and obligations must be such as to serve as an adequate response to the moral concern that is characteristic of legal practice. On the hypothesis we have been discussing, the concern is raised by coercive enforcement. A conception of law must therefore articulate the relation that must hold between some right or obligation and institutional practice if the right or obligation is to be permissibly enforced.

Recall that that moral relation is, on this hypothesis, the relation of legality, and rights and duties are legal when and because they bear that relation to institutional practice. The requirement of legality so understood plausibly imposes procedural and other constraints on the kind of institutional action or other aspect of institutional practice that may ground legal rights and obligations.

Officials often make public announcements about their future behavior designed to shape the expectations and thereby the action of their intended audience as did the President of the European Central Bank when he announced, at a major investment conference organized by the British government, that the ECB will "do whatever it takes to preserve" the currency.

But there is no reason to expect that action of this kind, taken by officials outside normal procedures, should in itself affect any legal right or duty -though equally there is no reason to rule out its playing some role in the determination of the impact of other, procedurally proper institutional action or other aspect of the practice.

This operation gives rise to the problem of choosing among possible trade-offs between moral appeal and fidelity to the past, which seems intractable. In the non-hybrid version, problems such as this do not arise. Morality ultimately determines the content of the law, by determining the moral relevance of institutional action. Instead, we are to consider whether morality might be a separate, noninstitutional source of law.

It might be that, in addition to the rights and duties made by institutions, moral factors separately contribute some further rights and duties or restrict, extend, or otherwise process those produced by institutional action. On this familiar picture, morality might filter out evil laws or fill in gaps in other laws produced by institutions, or otherwise help make laws so produced better cohere with each other. If that is the possible place of moral factors in the fundamental explanation of law, there is no point querying how institutions modify legal rights and duties.

We can treat it as common ground among theories on either side of the divide that, whatever the answer to the question of how institutions shape the law, it is nonmoral.

Theories that fall on one side say that that is the only kind of explanatory mechanism at work. Those that fall on the other assume that mechanism as basic, but postulate a separate moral mechanism that operates in tandem with the institutional one.

This understanding of the territory therefore encourages suppressing the question of grounds in a way that favors one side. Since everyone agrees that institutional social factors somehow determine at least part of the law, it makes sense to concentrate theoretical attention on the only matter in dispute: whether morality might constitute a further genuine source of law.

On this approach, the question becomes one of boundaries: does the law extend only to the content contributed by institutions, or does it also include the content separately contributed by morality?

Does the law only contain rules? Or does it contain, in addition, principles? It is doubtful that early Dworkin was advancing a hypothesis about boundaries. However, he has conceded that his writing encouraged the misconception that he did.

See Ronald Dworkin, Justice in Robes There is, however, an obvious and important alternative that suppressing the question of grounds has concealed: that, rather than postulating the existence of noninstitutional law, the claim that moral factors play some role in the fundamental explanation of law is instead a hypothesis about how institutions shape the law. Now if this is the postulated role of morality, the possibilities raised by the classic question are very different.

The idea that institutions shape the law in ways that can be understood without appeal to moral factors represents only one side of the divide, rather than an unexamined background commitment shared by both. It has now become a controversial hypothesis that needs to be articulated and defended. On the other side, we have the view that moral factors explain how it is that the history of institutions can affect legal rights and duties: on this view, such factors give the history its grounding role.

Both now postulate a single mechanism, by appeal to which they each purport to explain the whole of the law. The alternative understanding of moral explanations therefore allows for genuine disagreement between the two kinds of theory and a clear way forward: we now need to settle how the history of institutions makes the law as it is.

Dworkin firmly rejected the hybrid view imputed to him that institutionally produced law is enhanced by moral standards. Dworkin, Social Rules and Legal Theory , supra note 2, at on the idea that the law is a mix of rules and principles. See Dworkin, supra note 4, at —, — Both positions are directly entailed by the claims I attribute to him in the text.

As a bonus, his impatience with questions of boundaries will make perfect sense this way. During his lifetime, Hart took virtually no part in the debate that bears his name, which, by the time the Postscript appeared, had been running for some twenty-seven years.

In all cases his remarks are extremely guarded. See H. Hart, Between Utility and Rights , 79 Colum. Soon after the Colloquium at which Dworkin presented his paper, most of us with an interest in legal philosophy had a copy. Those of us on the mailing list then made further copies for others. It was discussed in seminars and placed on reserve in libraries for the use of students. It was taken into account in the avalanche of commentary on the Postscript then being written and in other work.

Dworkin was an author who went quickly to press, and this was a paper on the hottest subject in the field in a long time. In the usual course of events, the paper would have appeared in print within a few months. This time was different. Soon, Dworkin had second thoughts.