Hi Shalhoub ,

Please find Stephen's reply in Capital letters and Blue.

I'm working on a presentation on the question of law's concern: is it more to do with power, or is it more to do with justice?

THE PHRASE 'MORE TO DO WITH' IS A LITTLE WAFFLY; IT'D BE CLEARER - AND FIT IN WITH THE MULTITUDE OF WRITING IN THE AREA - TO ASK WHETHER LAW MUST, TO BE LAW, HAVE A MORAL CONTENT OF SOME SORT. THEN YOU WOULD SEE THAT THE QUESTION REALLY IS ABOUT THE POINT AND PURPOSE OF LAW. SOME POSITIVISTS SAY IT IS JUST SOMETHING THAT 'EXISTS' AS A 'SOCIAL FACT' (ONE INTERPRETATION OF HART; RAZ'S THEORY); OTHER POSITIVISTS SAY THAT SAYING THAT LAW DOES NOT HAVE TO HAVE A MORAL PURPOSE SERVES A VERY GOOD MORAL PURPOSE ITSELF BECAUSE IT ISOLATES WHAT THE COMMUNITY DEMANDS THROUGH LAW, AND WHAT THE INDIVIDUAL MORAL CONSCIENCE REQUIRES US TO INDEPENDENTLY OF OUR DUTIES TO THE COMMUNITY (AND WE MIGHT NOT HAVE SUCH DUTIES TO WHAT WE JUDGE TO BE A REALLY BAD COMMUNITY).

Certain philosophers such as Nietzsche go on ('GO ON' IS ALSO WAFFLY; NIETZSCHE WAS CLEARER THAN THAT; CRYSTAL CLEAR IN PLACES!) about the will to power, ironically (WHY 'IRONIC'?) described in his book titled The Will to Power, where he suggests that all living and nonliving entities strive for power, and by that definition, humanity strive for power, and seeing as law is a creation of mankind, or arguably implemented by humans, there is always a strive for power, and law is simply a mechanism by which they achieve it - a means to an end, so to speak.


WHY NOT EXPLORE THIS LAST IDEA - THE IDEA THAT IT IS AN INBUILT MECHANISM IN PEOPLE (LIKE APPETITE) TO TRY TO PUT OTHERS UNDER CONTROL; THINK ABOUT WHAT 'POWER' MEANS, AND WHY PEOPLE WOULD WANT TO EXERCISE CONTROL OVER OTHER PEOPLE. THEN YOU MIGHT GET SOME IDEAS AS TO WHETHER THIS IS A HEALTHY THING. (MY OWN VIEW IS THAT THE PSYCHOLOGICAL DESIRE TO HAVE CONTROL OVER OTHERS GENERALLY REFLECTS INSECURITY; YOU DON'T FEEL CONTROL OVER YOURSELF, AND SO YOU 'PROJECT' YOUR INSECURITY ONTO OTHERS; THIS IS WHAT BULLYING IS ABOUT, I THINK, AND, I THINK, ONE OF THE FORMATIVE PRINCIPLES OF FASCISM. IT LEADS FROM 'CONTEMPT FOR ONESELF' IN ITS STRONGEST FORM, TO 'CONTEMPT FOR OTHERS'. (CONSIDER SOME POLITICIANS AND SEE IF WHAT I SAY DOESN'T RING TRUE!!)

There are other theorists such as Rawls that ('WHO'!!!) go on about ('GO ON ABOUT'??????) the institution of justice, and how law should be able to apply this just social harmony into the lives of individuals.

TOO SUPERFICIAL, AT UNIVERSITY LEVEL, AS A REFERENCE TO RAWLS.

Hart also describes something similar. DITTO

Dworkin is convinced, as through his opening paragraph in Justice in Robes, that the people that ('WHO'!!) represent the law (Judges, QC's, Commissioners, etc) are not concerned with justice - it's too much of a burden upon themselves. DITTO. FURTHER, YOU MIGHT GIVE YOUR REASONS FOR THIS VIEW, AS IT IS A FAIRLY TRICKY ARGUMENT HERE, AND IT WOULD BE VERY HELPFUL TO PICK YOUR WAY THROUGH IT. IT IS TOO STRONG TO SAY THEY ARE 'NOT CONCERNED WITH JUSTICE'; OF COURSE THEY ARE, AS EVERYONE OF ANY SENSE IS (AND MANY PEOPLE WITHOUT MUCH SENSE!). BUT IT IS TRUE TO SAY THAT HE THINKS SUCH PEOPLE SHOULD BE CONCERNED MORE WITH 'INTEGRITY', THAT IS TO SAY, WITH, BEING PUBLIC PEOPLE REPRESENTING THE COMMUNITY IN A PARTICULAR ASPECT OF DEMOCRACY (THE BEST FORM OF COMMUNITY IN HIS, AND MY, VIEW), THEY SHOULD INTEGRATE ALL DECISIONS OF THE PUBLIC REALM IN A COHERENT ACCOUNT OF WHAT THE 'COMMUNITY HAS DONE AND SHOULD DO IN PRINCIPLE': SO THAT ALL MEMBERS OF THE COMMUNITY ARE 'TREATED AS EQUALS'.

The real question is whether the law, in all actuality, is concerned more with power than with justice. (NOTE HOW THE WAFFLINESS OF THIS PHRASE HOLDS YOU BACK, RATHER THAN ADVANCES YOU). Thus far the only person who hasn't been dancing around the issue (NO NO NO; THIS SHOWS YOU HAVE ONLY A PASSING ACQUAINTANCE WITH ..... PLATO, MILL, RAWLS, DWORKIN, TO NAME ONLY A FEW) is Nietzsche, but I think that's only really because of his bitter attitude towards life and his blunt demeanor. (THERE IS A LOT IN THIS LAST BIT; PERHAPS CONNECT WITH MY COMMENTS ABOUT THE PSYCHOLOGICAL MAKEUP OF FASCISTS)

If anyone out there can help point me in the direction of a similarly blunt theorist who can in fact lay out in gruesome english what they believe law is more concerned with? I'M WONDERING WHETHER YOU SHOULD GO TO THE ARGUMENTS OF THRASYMACHUS IN PLATO'S REPUBLIC, WHICH YOU'D EASILY FIND ON THE INTERNET. THEY ARE THE ARGUMENTS AS TO WHY POWER MIGHT SUPPLANT JUSTICE; YOU WILL GET A SENSE OF THE INTELLIGENCE OF PLATO IN HIS FAMOUS AND CLASSIC REPLIES TO THE POSITION. BUT I THINK DWORKIN IS VERY VERY CLEAR AS TO WHAT HE THINKS THE LAW SHOULD BE CONCERNED WITH: INTEGRITY, AND YOU SHOULD NOTE THE RELATIONSHIP WITH JUSTICE (BOTH INTEGRITY AND JUSTICE DRAW THEIR ROOTS FROM THE IDEA OF TREATING PEOPLE AS EQUALS). AN INTERESTING QUESTION CONCERNS WHAT HART THOUGHT THE PURPOSE OF LAW WAS; YOU NEED TO LOOK AT THE REASONS HE ADDED THE SECONDARY RULES TO THE PRIMARY RULES AND AS TO WHY, IN CHAPTER 9, HE THOUGHT THAT THE 'WIDER' CONCEPTION OF LAW OUGHT TO BE CHOSEN OVER THE 'NARROWER' CONCEPTION

Regards.

Stephen Guest.