LAWS0011: Jurisprudence and Legal Theory

theory of lawIn a later version of his wealthy paper, he writes that the communicative content material of a statute (his preferred term is what a statute states) “leaves broad open the query of the contribution it makes to the regulation,” and concedes that the latter query goes “well beyond the philosophy of language.” Neale, The Intentionalism of Textualism 5 (2009) (unpublished manuscript) (on file with author). Aside from this official disclaimer, nonetheless, Neale seems to imagine all through that the communicative content of a statute is its contribution to the legislation. Moreover, if the disclaimer were taken seriously, Neale’s paper couldn’t do what it purports to do. For example, his paper claims, on solely linguistic grounds, to dissolve the talk between textualists and intentionalists. But that debate concerns a statute’s contribution to the content material of the legislation, not merely its communicative content.

The concept of the inner point of view plays a specific position in H.L.A. Hart’s principle of regulation, however this post is about a associated but distinct topic–the extra common role that the internal/exterior distinction performs in legal principle. –Causal theories (e.g. a public-selection theory that explains why a particular area of regulation has come to be the way in which it is) are normally stated from the external point of view.

Table of contents

See supra note 29. This understanding would considerably mitigate the directness of Dworkin’s reliance on the problematic idea that a precept could be law as a result of it is morally good. But, as pointed out within the text above, it is nonetheless the case that a precept’s ethical advantage counts in favor of its being part of the law.

After all, already within the nineteenth century, the principle type of laws was not the parliamentary statute, but the code, i.e., an “aristocratic” supply, since it is produced by authorized scholars. Today, moreover, legislation via parliamentary initiative is a minority in comparison with the legislation enacted on government´s initiative, producing a kind of law which is more technocratic and autocratic than democratic.

3.2.1 The declaratory concept of legislation

Meaning in the sense of linguistic content also is to be distinguished from legal meaning, where the legal meaning of, say, a statutory textual content is simply its contribution to the content material of the regulation. If we use that means within the sense of authorized that means, it’s trivial to say that a statute’s contribution to the law is its that means. In these phrases, the Standard Picture holds, roughly, that an authoritative legal text’s linguistic content constitutes its legal which means. For discussion of many types of linguistic and psychological content and their relation to the content of the law, see Greenberg, Legislation as Communication?