October 4, 1999
How delightful it is to hear from you!
You are quite right: Much of what Holmes observes is doubtless a product of overlapping vocabularies; and most of "us" live quite happily in Kansas much of the time. Still, there is considerable power in the (intentional) confusion between the moral and legal realms. I attribute it to the different roles of legislator (dictating the social "ought") and interpreter or judge (making sense of legislation). There is certainly much creativity inherent to the judge's task, for how can anyone make sense of legislation without contributing something (i.e., coherence) to the results of public discourse. But the law is compelling (and not simply compelled) because people experience it as obligatory. It is precisely because the legal realm harmonizes with (or is intended to harmonize with) our moral landscape that it is able to coordinate monumental feats of human organization with a minimum allocation of resources to law enforcement.
Law would not function very well (it would be "inefficient") if we could not take certain liberties with the language: the ambiguity between the realms allows us to legislate and enforce dynamically. Law-creation is an inescapably moral discourse. The judge, being careful not to appear a "participant" in the legislative process (for she is ill-suited to engage in a dynamic and publicly compelling normative discourse), occupies a precarious and unenviable position: to read the "law" in a way that delivers a consistent sanction on the basis of ostensibly public moral judgements. And it is at this stage that the ambiguity between the discursive realms must in some sense be "resolved".
A stimulating discussion all around!
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© 2000 David Robert Foss
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