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					Session 16                                                 3/10/2011 7:04:00 PM

 Structuralism


 Professor says it is the best theory
 Ronald Dorwkin


 Comes from Carl Popper
      Created philosophy of science
      Verification is not central but falsification
      Idea suggest that when we know something our negatives are true,
         know what is wrong
         We know negatives better than positives
         Wrong than more right
         Know what we don’t want more than what we want
         Negation is central to thinking
             o Narrowing down choices
             o Choosing structure
             o Ex: who we don’t want to marry but don’t know who to marry
 Implication is that rationality structures choice
 Can remove things that are wrong
 Objectivity without certainty
 Ronald Dworkin
        Professor of Jurisprudence
 In 1900s philosopher of law
 Very insightful thinker
 Dworkin works in a structuralist world


 Main Idea
        A judge can be free and use there own judgment as long as there is
           structure
          Sports: official v. Coach
              o Coach makes plays based on opponent
              o Official learns rule book and understand what the game is
                     Makes decision based on when to call and what not to
                        call, decision system (freely made) based on what the
                        official contemplates
              o Concept of law
                    Involves more than rules
                    Some sort of property that gives life to the rules, Judge
                     has to make the rule make sense
                         Something to check the rules to make sure it
                           works right
                         A diagnostic system
                    He calls it “principles”
                    Law involves rules and principles (unannounced rule)
                         Don’t need to lay down reading rules, Judges has
                           to make sense (part of Judges job)
Are there correct answer
       Laws does have correct answer, but it is different for each Judge
            o Certain answers are better for different Judges (based on
               their principles)
            o Mild criticism
                   Better answers then right answers
            o Each Judge has a “decision constituency”
            o Metaphors
                   Chain novel
                         Has five chapter and Judges need to write six
                          chapter
                         Can’t write it till read first five, and these have an
                          effect on the six chapter
                              Judges try to write the best book possible
                    Parent-child commands
                         How to treat little siblings and be fair and nice
                         Like constitution and had to give commands best
                          they could
                    Hercules
                        His mythical Judge (Law’s Empire)
                        Wrote based on cases on how he shows his
                          Theory would work with Judge
                        Not his best work, Hercules is said to be a Liberal
                          Judge
                        Law as moral reasoning
                                   Legal reasoning is just good moral
                                    reasoning (moral reasoning is not
                                    Judgment)
                                   Professor says that this is the flaw of
                                    Dwokin
                                       o Liberal stuff is more important than
                                          conservatism, philosophy needs to be
                                          neutral
Important conclusion
      For all to be law, it has to have integrity
            o    Law not sham or game
            o    Has to have overall integrity
         Hard   case
            o    Really difficult to resolve
            o    Cases that could go either way
            o    Dowkin says has right answer but only to the Judges
                 principles
                     Principle most moral, and most integrity will in the end
                       prevail
                     Must rely on your own values to break the tie breaker
                     Political values are last part of the equation
                     Legal decision constituency structures the choice, but
                      values complete the task
Implication of Jurisprudence
       Judging the law involves pre-existing cognitive framework
            o Consisting of more than just rules
       Apply framework to empirical conditions for the time period


How cognition can structure
      What rely on to make choices
           o Philosophical  things are true by just thinking about it
           o Calorie is abstract, measure of how much we are eating
           o Professors term is “Ideation”
      Also do science, look in the world and see what it is
      Rely on verification and empiricism
      Seeing is believing
           Other is psychology
               o Feel a certain way
           We have a triangle
               o Logic
               o Feeling
               o Fact
           Theory that constituents existence
           Three-dimensional semantics
               o Find in everyday concepts
               o Column-1
                  Bias in grammar
           o Column-2
                  Grammar of merit
       Two dimensional semantics
       #1  Ideation
       #2  Verifiability
       #3  Desire
Poor character and Personality
Learning curve
           E up, I up then attitude shifts
           “          “ attitude doesn’t shift
               o ways that the mind structures themselves, when Judges miss
                   behave
           Fact is huge, feeling not
               o Look at word, calculating
           Feeling is huge fact small
               o Only politics
           Radical skepticism, everything is jumbled
           Everything that works together is the best way to Judge, has to be
            psychology balanced in some way
               o Holism: has a proper blend, not skewed
Rules
           CLT: based on secrete tradition
           AP: word analyzes, how use words, cannons of construction
           Neo-originalism: how words are applied, not framer intent but the
            framer cultures intent
   Critical Legal studies: no correct answer, vote for the little guy, vote
    left
   Pragmatism: no answer; vote to preserve power, vote to make
    everyone happy
3/10/2011 7:04:00 PM
3/10/2011 7:04:00 PM

				
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