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If she is interested in acting lawfully, however, her practical reasoning necessarily proceeds from the internal perspective. If this relationship holds, then acting under law while regarding the law from an external point of view would be on a par, normatively speaking, with robbing a bank and successfully asserting an alibi defense, or bribing a prosecutor to drop charges.
The actor would have managed to avoid sanctions, but the evaluation of the action would be that it was wrong from the standpoint of a relevant normative framework.
Indeed, part of my argument here is that the normativity of law is not distinctive, but is similar to the normativity of any other social practice which is constituted and regulated by rules or other standards internal Cornell law school legal studies research paper series the practice.
The method of observation of conduct from that point of view, however useful it may be for certain scientific purpo ses, includ ing at least some varieties o f sociological inquiry, is inadeq uate to capture tho se concepts of lawyers and of laymen which are bound up with rules and standards of conduct.
H ART 37 emphasis added. Perhaps a society of Holmesian bad man can exist, but it would be a lousy one, and one which we have good reason to hope will not be brought about.
If everyone approached the law as a Holmesian bad man, it would be impossible to use the law to coordinate the activities of people who do not share substantive moral conceptions of the good, and to realize the benefits of cooperative social activity. Lawyers, in particular, have an obligation to maintain the integrity of the legal system and preserve its ability to secure the benefits of peace and the stability of mutual expectations.
Gordon, A New Role for Lawyers?: Gordon, A Collective Failure of Nerve: The internal point of view is conceptually or normatively mandatory for lawyers and citizens when purporting to act lawfully; moreover, the internal point of view has implications for the interpretation of legal texts, and rules out certain kinds of manipulation by lawyers of legal norms solely for the benefit of their clients.
When one is acting as a scientific observer of a group, it may make sense for certain purposes like making predictions only to record regularities in behavior. Of course, it may be the case that observed regularities are merely a happenstance, but it may be the case that people converge on certain actions because they believe that they ought to.
The shared belief of participants in a practice that the regulative standards of a practice are obligatory differentiates mere behavioral regularities from rule-governed or at least norm-governed behavior.
Deviation from a habit is a matter of indifference, but deviation from a norm is an occasion for criticism that is regarded as justified. Shap iro, What is the Internal Point of View? These regulative standards are not arbitrary, but have their origin in some ultimate state of affairs or value that is the aim of the social practice of which they a part.
The end or purpose of a practice gives rise to what may be called the immanent rationality of some domain of intentional action. This connection is unsurprising since H art and Rawls worked together at Harvard and O xford around the time when Rawls wro te this paper.
In the case of games and etiquette, the justification is not moral, but it is still teleological.
Thus, the explanation of the normativity of the rules regulating these practices is that following the rules is necessary in order for pe ople to jointly accomplish the end s of the practice. Imagine a person who claimed to be playing basketball, agreed that other players conformed to an apparent standard prohibiting double-dribbling, but refused for his own part to accept the authority of the double-dribble rule.
That player would be regarded as making either an annoying joke or an argument that the game would be more interesting if double-dribbling were allowed. The game of basketball can exist only if all of the players are respecting the standards that literally create the game and make it possible.
There are plenty of meaningless activities, but we expect to find participants in certain social practices acting out of some sense that what they are doing is meaningful, and guided by the overall sense or internal logic of the practice.
Without understanding and accepting a rule recognizing that little green pieces of paper printed by the Bureau of Engraving and Printing constitute a medium of exchange, there would no way to make sense of even a very simple transaction, like buying a hamburger.
It follows from this conception of practices that a participant in a practice is subject to the justified criticism of others if she refuses to respect it as a purposive enterprise.
Similarly, a hypothetical citizen who approached the law as a meaningless activity would simply not be participating in the practice. She would be like someone who handed red pieces of paper to the counter attendant and expected a hamburger in return.
Acting lawfully, as opposed to acting simpliciter, means being oriented toward the law as a purposive, meaningful activity. This usage indicates that people often believe themselves as acting under the guidance of legal norms.
Its binding nature or normativity is not contingent upon what a particular agent actually believes, but is a function of what a person would believe if she were appropriately oriented toward the domain and its regulative standards. This is a somewhat tricky position to maintain, and leads Hart into ambiguity.
Detached normative statements reveal that it is possible for an observer of a group to understand what it would be like to be a member of the group, without necessarily sharing in the commitments of the individual members. To do so, one would share the cognitive aspect of the internal point of view, and appreciate the volitional dimension, but not share or endorse the volitional dimension of preferring it as a standard for herself.
MacCormick and Raz offer similar examples: As Hart draws this distinction: It is true that. If these decision-makers consistently favored certain litigants — say, prosecutors or big corporations — there would be an observable regularity in their decisions, but we would not call those decisions lawful unless they were justified by reasons that made reference to the sorts of values that should make a difference in how legal disputes are resolved.
We may disagree in some particulars over what criteria differentiate a lawful decision from one based on whim or partiality.New research builds on the vogue cornell law school legal studies research paper series mantra of behavioral economics WVU Law students have a passion for justice, an interest in how our legal system contributes to society, and a desire to learn a essay grading rubric discipline that is both structured.
New research builds on the vogue cornell law school legal studies research paper series mantra of behavioral economics WVU Law students have a passion for justice, an interest in how our legal system contributes to society, and a desire to learn a essay grading rubric discipline that is both structured.
View Cornell System Theory SSRN-id from MFIN CORP GOV at Católica Lisbon School of Business & Economics. CORNELL LAW SCHOOL LEGAL STUDIES RESEARCH PAPER SERIES Contested Visions: The Value of.
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