I said:
> > Please note that my approach grounds law, or legal
> > legitimacy, in the morality of democratic
> politics,
> > which involves law, since democratic procedures
> have a
> > legal form, but what makes those procedures have
> force
> > is not the fact that they have a legal embodiment,
> but
> > that they are the fairest procedures that are
> > likeliest to produce the best outcomes. So I don't
> > think, contrary to what Woj says, that law is free
> > standing and based only in itself. Though many
> legal
> > theorists disagree.
>
Woj asked:
> Is not the institution of democracy a creation of
> the legal system
> itself? After all, democracy is nothing but a set
> of procedures of
> promulgating valid laws
No, democracy is a creation of class struggle. It is _embodied_ in legal forms, but those forms are created by political action, not all of it legal or even legislative in nature. Sometimes they are created by revolution or threat of social unrest.
I think that democracy is more than the procedures -- it is to some degree actual power that democratic citisens have over the government. That is why we say "democratic procedures," and that is not redundant.
>W: Another point - what do you mean by "free
standing?"
> All I argued that
> law does not need justification other than itself
> (see the above) but
> that itself does not mean that a law can "stand"
> without actually being
> enforced.
No, that's not what I meant. Obviously law has to be enforced to fully count as law. I meant free standing in a justificatory sense. Law is free standing if what makes a law legally legitimate, that is, binding because it is the law, is itself a legal fact.
I don't think that the legitimacy of law, the reason it is binding, is a legal fact merely. I think the legitimacy of law depends on democratic institutions, where they are possible, and is justified or explained by the fct that those are the best institutions for morala nd political reasons. That makes the justification of law partly legal, insofar as democratic institutions have a legal embodiment and are about making legal rules.
But the justification cannot be not wholly legal, because after all dictatorial institutions, which do not create legitimate laws (I am leaving out a lot of complexity here), also have a legal embodiment. It is because democratic institutions are the (morally) fairest and tend to lead to the politically best outcomes that laws passed by democracies are legitimate even if they are not, the particular instance, morally acceptable.
W: That means that the only external
> requirements are
> enforceability and the power to actualize that
> enforceability.
No, because dictatorships can enforce their laws, and yet their laws are not legitimate. At least not legally legitimate: their laws might be morally legitimate -- if they had laws prohibiting murder, for example, because murder is wrong regardless of what the law says.
>
>W: But beyond the enforceability and the power to
> enforce what other
> external justifications of law are there?
Enforceability is not a justification, just a condition.
W: The only
> ones that come to
> mind are natural law or utility - or moral systems
> that grounded in
> these two concepts. Enough has been written to
> thoroughly dismiss both
> propositions - suffice it to say that utility is
> insufficient (for
> otherwise concentration camp would be moral and thus
> just), and the
> natural order too vague and ephemeral to be properly
> defined, let alone
> empirically determined.
>
> I was under the impression that you were a
> deontologism sympathizer, no?
Well, a while ago I posted my view that first, that democracy was in a sense prior to any justification -- as Rorty says, even if we could not think of a good justification or even if they was a theoretical problem with democracy that seemed unanswerable (see, for example, Arrow's theorem), we would not give it up.
And second, I said that in a perfectly commonsense way democracy is justified by utility and deontology -- in English, by the fact that it leads to better outcomes for the most people than the alternatives (as a rule), and is also the fairest way of making decisions.
I don't see the problem with saying this. Utility isn't sufficient by itself partly for the reason you state, so we need rights/fairness too -- I don't see why rights and fairness are too vague to be determined. Maybe they cannot be empirically determined, but so what? Maybe many people will disagree about what moral rights we have, but that does not mean that we can't come up with a provisional short list that we can use to work with.
So, yes, I am sort of a deontologist. I hate that word. It's ugly.
jks
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