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SKEPTICAL CONCEPTIONS AND WICKED LAW

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  • Did the Nazis Have Law? Check out the script from Abogados de accidentes 
    • Legal pragmatism is sceptical because it rejects assumption that past decisions provide rights to future ones. Some claim that due to this there is no law at all, and some claim that in some countries, although leg and judiciary exists, too wicked to be law.  – this makes sense under interpretive theory, because those practices in wicked society yield no interp that can have any justifying power at all.
    • Semantic: say we had law, but very bad law. This fact about linguistic practice argues for positivism, the axiom being that the existence of law is independent of the value of that law.
    • If useful theories of law not semantic but interpretive, then problem of immoral legal nazi system has diff character. Why? Because interpretive theories are by their nature addressed to a particular legal culture, generally the culture to which their authors belong. No reason to expect abstract conception to fit foreign legal systems who developed in different ways and reflect different ideologies.
    • Doesn’t follow if US lawyer doesn’t find in Nazi law one feature he has in US law that he must deny that Nazis had law. (would be like the stages of courtesy…Nazi law on different part of continuum, nazi law is like one strand in the rope). (law in preinterpretive sense)
    • Nice thing is, with interp, not so worried about black white q was it law, we understand and can see both.

 

  • The Flexibility of Legal Language
    • Semantic theory like positivism denies us to use ‘law’ in flexible way, letting it depend on context or point. Doesn’t mean we can’t sometimes used “positivist” formulation, if it is preferable, but shouldn’t limit ourself to that language!!**
    • Context sensitivity even more important when question in play is sharper, more practical than just classification of nazi law, e.g., how foreign judge Siegfried decides hard case. This requires not just general comparison, but independent interpretation of that system in some detail. We might arrive at conclusion that interpretive attitude is wholly inappropriate there, that practice can never provide any justification for stat coercion.   We might then say that Siegfried should ignore legislation and precedent altogether.
      • Point: nothing in mere fact that his nation has law in pre-interp sense provides any litigant with any right to win what he seeks in its courts.
    • Then we search further, and see not true, something in history of legal practices of Siegfried’s community that we think justifies some claims of legal right by some litigants (but entire law still shit).
    • Now imagine more complex e.g., suppose these are hard cases (jew wants remedy only given to aryans). New difficulty: we would just get by hard cases by looking what decision flows from best interp. We can give of legal process as whole. But cannot do this here, whole system too wicked —- we must ask which interp. Someone like siegfried, who likes his system, would put countries legal practices in what we believe would be their least bad light.
    • Now what if we must ask not how he SHOULD but how he probably WILL decide case? Now we must interpret from fully within Siegfrieds shoes.  We can do that, and then declare that because so shit not really law at all. But we omit that, because not relevant.
    • Next shift: say we discover that part of our own law is immoral. Don’t the legal practices, though morally infirm still generate weak political rights in those who have relied on them? Or do they not generate any rights at all? Could say he may have to disregard law or that there is no law, lingistic distinctino not important, the point is.
    • So, another relic from semantic times. They take all the various above questions we distinguished, concerning wickedness or deficiency of instances of what is law in pre-interpretive sense as THE SAME QUESTION. — namely the semantic Q whether the linguistic rules we share for applying “law” include or exclude such legal systems. Thi sis fake question as we do not share any rules of the kind it assumes. “It disarms us by withdrawing the subtle and context sensitive distinction the right language of law provides.
      • The question of wicked legal system is not one q but many q and all arise at level where conceptions compete!