The Quest for the Description of the Law by Reidar Edvinsson

By Reidar Edvinsson

My dissertation for LLD (or JSD) Att beskriva rätten (To Describe Law), which was once written less than my bachelor surname of Andréasson, used to be awarded for public exa- country on Nov four, 2004. considering that then the textual content has been built in separate instructions. at the one hand, 3 of the chapters were made extra available to scholars of jurisprudence and feature been integrated within the moment version of the te- e-book Rättsfilosofi, samhälle och ethical genom tiderna edited through Joakim Nergelius. nevertheless, the full dissertation has been revised, translated and released because the current booklet. within the time that has handed seeing that my dissertation, many stuff have replaced. at the own point, my pal and teach, Aleksander Peczenick, used to be unfortunately taken clear of my circle of co-workers. not like that unhappy occasion, i've got spent nine-month sessions on paternity depart, elevating my young children, Selma and Bernhard. This previous yr, i've got determined to maneuver from concept to perform and feature got to work in a court docket of legislations. in the course of my paintings at the dissertation, I had the chance to spend a worthwhile time period at Rutgers collage in Camden, NJ vacationing Professor Dennis Patterson. due to the fact this booklet is a continuation of that undertaking, it feels applicable to copy my because of Professor Patterson and STINT (The Swedish beginning for foreign Cooperation in study and better schooling) for making that stopover at possible.

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4 Justification and Obligation 25 A bank clerk being robbed feels forced (or obligated) even if the robber has adopted a critical reflective attitude to his actions and considers himself to be following the rules he finds correct and supported by social pressure. Only if the clerk shares such an attitude with the robber and experiences the same social pressure, does the clerk feel obligated. In my opinion, Hart’s reasoning in his gunman example is confused because he deals with obligation without specifying according to whom.

R. Edvinsson, The Quest for the Description of the Law, © Springer-Verlag Berlin Heidelberg 2009 27 28 4 Joseph Raz – the Social Thesis and the Sources Thesis Raz finds it proper to point out that the social thesis is directed towards theories about the law and not towards the law itself. In his words, the social thesis is “best viewed not as a ‘first-order’ thesis but as a constraint on what kind of theory of law is an acceptable theory” (Raz 1979, p. 39). 1 With this interpretation of Raz I feel confident to ignore his distinction of different orders.

It might even be doubted that the discussed activity can properly be called an interpretation. 5 Justification of What? 3 above recounted Dworkin’s criticism of theories that ignore disagreement regarding the grounds of law. Dworkin called such a disagreement theoretical. Ignoring it was argued to lead to a “plain-fact view of law”. What then, is Dworkin’s opinion about how far this disagreement reaches? 44 5 Ronald Dworkin and Restricted Legal Interpretation If there is a disagreement within the adjudicative practice about the grounds of law, it is reasonable to demand that a theory of law takes this disagreement into account.

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