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8 - Two Perils for Law

Published online by Cambridge University Press:  20 April 2018

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

Legal argument inside liberal practice is aware of two perils that might defeat rational resolution in law. The perils are conditions of disorder that exist beyond law. Language outside law is pervasively vague. Morality outside law is divided by disagreement. The peril for law is that disabling disorder seen to exist outside law may break out within law. Peril posited to exist by liberal law might conceivably be overcome. Two legal philosophers, H. L. A. Hart and Ronald Dworkin, show what it would mean to overcome peril. Each says that a mode of legal argument ‒ formal argument for Hart, ideal argument for Dworkin ‒ is able, for the most part, to avoid disorder and so succeed in achieving rational resolution. Each theorist thinks that the mode of argument affirmed by the other often fails ‒ but each thinks that one mode succeeds, and so law as a whole does. Critical scholars Roberto Unger and Duncan Kennedy put forward deeply skeptical ideas of disorder which, applied to law, would cause law to fail irremediably. But these deeply skeptical views about morality and language, unlike the two premises accepted by Hart and Dworkin, are not embraced in doing of law.
Type
Chapter
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Liberal Legality
A Unified Theory of Our Law
, pp. 120 - 130
Publisher: Cambridge University Press
Print publication year: 2018

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  • Two Perils for Law
  • Lewis D. Sargentich, Harvard Law School, Massachusetts
  • Book: Liberal Legality
  • Online publication: 20 April 2018
  • Chapter DOI: https://doi.org/10.1017/9781108673860.010
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  • Two Perils for Law
  • Lewis D. Sargentich, Harvard Law School, Massachusetts
  • Book: Liberal Legality
  • Online publication: 20 April 2018
  • Chapter DOI: https://doi.org/10.1017/9781108673860.010
Available formats
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To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Two Perils for Law
  • Lewis D. Sargentich, Harvard Law School, Massachusetts
  • Book: Liberal Legality
  • Online publication: 20 April 2018
  • Chapter DOI: https://doi.org/10.1017/9781108673860.010
Available formats
×