Jurisprudence

Jurisprudence

1. Law Interpretation and violence

   • Law and violence
     • Cover
       • Field of pain and death
       • Legal interpretation and infliction of pain
       • Word, deed and role
       • Violence is necessary
       • Violence in law involves "passing the buck"
     • Derrida
       • Linguistics
       • Desconstruction
         • Motor Vehicle examples
         • Law is deconstructible; Justice is not
         • Motor vehicle example
         • Deconstruction involves the hiearchical opposition, followed by the temporary reversal of the hiearchy. We thus seek to expose the metaphysics of presence
       • Violence inherent in our construction of meaning/words
         • Need to do our best to understand where the person subject to judgment is coming from, as words can mean different things to different people
         • Justice occurs in the form of the individual before the judge
       • Foundation of law is posited and not strictly legal
       • Fresh judgment
   • Law and interpretation
     • If law is the text of the sovereign, then what is the role of judges and lawyers
       • Bentham and Hobbes were concerned to reign in the common law. They both held that the interpretation should be done in accordance with the legislative intent. Judges only carry out this function.
         • Austin and Hart: there is no interpretation in the law
     • Law is a profession of words and text
     • Formalism: Rules apply themselves
     • Realism: policy and principles underpin law
     • Dworkin
       • Judicial interpretation is neccessary, but should be constrained to hard cases
       • There is a laways a right answer within the seamless web
       • Hercules: superhuman, skill and learning
       • Rules v Policy
       • Judges should consider popular morality
       • Even in hard cases, it's the judges job to figure out the rights of the parties
     • Hart
       • JI is not necessary in easy cases, but is needed in hard case
       • Law is brought about by judges. But we need certainty
       • Open texture of law
       • Penumbra
       • Rejects formalism because you can't predict the future
       • The law has gaps that have to be resolved
     • Hart (open texture) v Dworkin (seamless web)