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6 - Deep Duality: Formal Law

Published online by Cambridge University Press:  20 April 2018

Lewis D. Sargentich
Affiliation:
Harvard Law School, Massachusetts
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Summary

According to analysis of this book, liberal law is deeply dual. Two different modes of legal argument, formal and ideal, each develop fully law-like legal prescription. However, deep duality is not recognized by any of the legal philosophers discussed in this book. In order to construct a comprehensive portrait of liberal law's duality, in the present chapter and the next, we will put together separate pictures of law drawn respectively by Max Weber (on rules) and Ronald Dworkin (on ideals). Weber and Dworkin are each half-right. Weber is right about rules in liberal law, mistaken about ideals. Dworkin is half-right in reverse. Max Weber, analyst of formalization of law, shows what fully law-like formal law looks like. Weber spells out the conditions of law that together constitute a system of interconnected rules. He identififes the argumentative operations needed to construct formal coherence. Weber says that quest of coherence is a fundamental project of formal legal argument. By contrast to Weber's deep understanding of coherence-seeking formal law, Ronald Dworkin shows formal law to be a collection of separate rules without coherence. This is an impoverished view of law's formality.
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Chapter
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Liberal Legality
A Unified Theory of Our Law
, pp. 88 - 104
Publisher: Cambridge University Press
Print publication year: 2018

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