Unit 3 The Basic Roles of Paradigmatic Legal Systems

Unit 3

The Basic Roles of Paradigmatic Legal

Systems

What Are the Basic Roles in Paradigmatic Legal Systems?

With the introduction of new sorts of social rules, rules that are distinctively legal, come new sorts of social roles, roles that are distinctively legal.

What is a Social Role? A social role can be defined as a set of rules. A

role is constituted by two kinds of rules: occupancy rules and performance rules.

An occupancy rule specifies what must be the case for someone to be in that role.

A performance rule specifies what is to be done by someone who occupies thatrole.

The roles that are fixed by the nature of legal systems are that of subject, legislator, and judge.

The role lawyer is not. There can be fully fledged legal systems without lawyers, so the role of lawyer cannot be basic to the legal system. (You cannot, however, have a fully fledged legal system without the roles of subject, judge, and legislator.)

What is a Social Role?

Also functionally secondary are roles that we might collectively call ‘‘enforcement’’ roles, roles like that of police officer, prison warden, or executioner.


When we answer the conceptual question about the occupancy and performance rules associated with a certain role, we are not thereby advocating that anyone act in accordance with the requirements of that role. We are merely describing the role.

In answering the substantive moral question, we are no longer able to be morally neutral.


The Role of Subject

To be a subject is not necessarily a voluntary undertaking. It is very difficult to live anywhere in the world without being a subject under some legal system. While there may be some choice concerning the legal system to which one is subject, being subject to some legal system is not a matter of choice.

So we should not think of the occupancy rules of the role subject as including a voluntariness condition: to be a subject does not require one to adopt that role voluntarily.

To say that the role of subject does not includevoluntariness or self-definition among its occupancy rules is just to say that one is expected to adhere to the demands of that role regardless of whether one can agree to it or not and regardless of whether one wishes to think of oneself in those terms or not.

The Role of Subject

What are the performance rules? What is it to be a good subject? To be a good subject, I think, is a matter

of obedience: the good subject obeys the law, and in particular, the law as it is officially interpreted.

The Role of Subject

Deference is required both to the legal norms and to the legal officials charged with interpreting and applying those norms.

The Role of Subject

Why should we characterize the role of subject in this way?

There are at least two reasons, one of them conceptual, built on our earlier observations on the nature of law, and the other empirical, built on observation of legal systems. The conceptual point is that this is how we would expect the role of subject to be defined, given the authority commonplace.

The Role of Subject

Law is authoritative, giving (or being taken to give) decisive reasons for action; the parties to whom it gives those decisive reasons are subjects, those under the law’s jurisdiction.

The empirical point is that this is how official pronouncements from legal systems treat the demands of the role of subject. Courts tend to treat rather dismissively the claim that subjects are not bound to adhere to its norms.

The Role of Subject

Is one morally bound to comply with the demands of law? If so, under what circumstances, and what are the limits of this required obedience?

The Role of Subject

Is it a matter that I really ought to take my turn.

Why? Because it is unfair that I should reap the benefits of others’ efforts, which were produced by their adhering to a rule that divides up the burdens of a regular ride. By taking the benefits and refusing the burdens, there is an unjustified inequality among us – by being a free-rider, I take advantage of their efforts, making me better off than they without any adequate rationale.

The Role of Subject

The suggestion, then, is that subjects ought to obey the law becausesubjects are bound to do their fair share for the commongood and the lawprovides a reasonable way to determine what counts as one’s fair share.

The Role of Subject

There are, of course, other reasons to worry about this account (e.g.,whyis it that the law gets to decide what counts as each person’s fair share?what gives it the privileged position of rendering these decisions abouthow the burdens of promoting the common good are to be distributed?)

The Role of Subject

The Role of Legislator

The qualifications to occupy the legislative role – that is, to hold the legal power to make rules deemed valid by the rule of recognition – are fixed by social practice, and social practice might authorize as legislators persons whohave never wished to and in fact may strenuously want not to occupy that role.

The job of the legislator is, of course, to make law. But it would be silly to describe the role-requirements of the legislator in quantitative terms: the more law made, the better.

To make good law, the law made must be authoritative and it must be for the common good. Otherwise, that law is defective.


Whether a good legislator should make more law or less, and precisely which laws should be adopted or rescinded, is to be regulated by the constraints that law is to be authoritative and that it is to serve the common good.

One constraint on the role of legislator is that the norms that are made into law must be authoritative.


What this means, recall, is that the norms that are made must be able to provide genuinely decisive reasons for action for subjects.

This places the legislator under two sorts of constraints with respect to the making of law.


The first is that the legislator’s proposed norms must exhibit authority-potential – they must possess the formal features that make it possible for agents to treat them as guides to action.


The second is that the legislator’s proposed norms must exhibit not just formal authority-potential but must genuinely count as decisivereasons for subjects.

What this entails is that the substance of the rules that are laid down must be sufficiently reasonable that subjects can rightly take those rules to be binding.


The legislator’s job, by contrast, is tolegislate from the perspective of the people, taking on their opinions,attitudes, preferences, and so forth, so that the lawmaking activity that flows from the legislative office is one that reflects the people’s own views of what ought to be done.


The Role of Judge

To be a judge is to be designated by the rules as someone whose applications of the rules of that system, or some of the rules of that system, count as authoritative.

The performance rule for the role of judge is that judges are to apply the law in their resolution of disputes. That is to say: in occupying the role of judge, one who resolves a dispute should resolve it in a way that is determined by the law that bears on the dispute.

The Role of Judge

Occasionally cases are easy: there is relevant law that bears on the case, both the law and the facts of the case are perfectly clear, and the proper legal outcome follows as a matter of straightforward deductive logic from the clear law and the clear facts.

The Role of Judge

But cases are often hard. (Easier cases tend to be handled apart from disputes in front of judges: if it is clear that a tort has occurred and compensation is owed, there will typically be a settlement out of court; if it is clear that a crime has been committed, a plea arrangement willbe made.)

The Role of Judge

All judges agree that it is crucial to attend to the text of the statute: the words that were used, and actually voted into law by the relevant legislature. No one is advocating simply ignoring the text of the statute.

And all judges agree that the text has its meaning only by way of a context.

The Role of Judge

Almost everyone agrees that judges sometimes have discretion in the making of their decisions, and that it is not entirely objectionable for those who occupy the role of judge also to be charged to engage in limited discretionary decision making. What there is much more disagreement about is the extent of the discretion that exists in typical legal systems.

The Role of Judge

Hart

Hart’s view is that discretion is a pervasivephenomenon: legal rules characteristically have a ‘‘core’’ and a ‘‘penumbra,’’where the core consists in a set of cases in which the rule’s application is determinate and the penumbra a gray zone in which it is simply an indeterminate matter whether the rule applies.

Ronald Dworkin argues that judicial discretion is actually a very limited phenomenon – in some texts he seems to deny that there are any cases in which judges are free simply to exercise discretion in resolving disputes – for the law contains a wide variety of general principles that help to determine correct legal answers when the law’s plain meaning is exhausted.

Dworkin

American Legal Realists

On the other extreme is the view of a group of philosophers of law called the ‘‘American legal realists’’ who claim that all or nearly all judicial decisions are discretionary, that the role of judge as a discoverer of what the pre-existing legal rules require is, for the most part, acharade or illusion.

Documents

Unit 3 The Basic Roles of Paradigmatic Legal Systems