At a very general level, your argument here is indistinguishable from arguments that Hadley Arkes has made for 50 years {I intend this as praise.} Yet his conclusions seem to line up with the tradition of classical liberalism-- there really was some merit in the Lochner decision; Schecter was obviously decided correctly; Humphrey's Executor was obviously wrong, etc.} Have you ever engaged with Arkes on these issues?
I don’t think that the passage from Julian is persuasive. Law requires predictability & fair notice to bind.
Written law is dramatically more predictable than amorphous notions of what has been sufficiently “accepted” among some unspecified segment of the population. It also allows for clearly distinguishing between social convention and binding law. That is particularly important *now* given the ascendancy of positive law. Perhaps in a community where written commands were unknown, it would be appropriate to try people for obvious felonies and trespass (though presumably an oral tradition that “murder can & will be punished” would always exist). Today, however, people in civil society would rightfully not expect to be punished or held liable for conduct that was not made criminal in a written law.
Obviously, you will be able to find plenty of examples of people being punished for such conduct anyways. Because our system is far from perfect. That is not a license to endorse a worse methodology.
The bottom of this post argues that rational development is predictable, and not beholden to individual views, because reason is external.
A) I doubt that reason or reason informed by traditional is in fact external to the judge. People really can have fundamentally disagreeing views of what is rational. Maybe that leads to God, maybe it leads to Nietzsche! Smart people go both ways.
B) Even if it was, the existence of some natural law means of determining the wrongfulness of conduct is cold comfort to someone, untrained in the classical legal tradition, who is trying to decide whether conduct is lawful.
Nice to see Jolowicz get a mention!
Greetings, fellow nerd!
At a very general level, your argument here is indistinguishable from arguments that Hadley Arkes has made for 50 years {I intend this as praise.} Yet his conclusions seem to line up with the tradition of classical liberalism-- there really was some merit in the Lochner decision; Schecter was obviously decided correctly; Humphrey's Executor was obviously wrong, etc.} Have you ever engaged with Arkes on these issues?
I don’t think that the passage from Julian is persuasive. Law requires predictability & fair notice to bind.
Written law is dramatically more predictable than amorphous notions of what has been sufficiently “accepted” among some unspecified segment of the population. It also allows for clearly distinguishing between social convention and binding law. That is particularly important *now* given the ascendancy of positive law. Perhaps in a community where written commands were unknown, it would be appropriate to try people for obvious felonies and trespass (though presumably an oral tradition that “murder can & will be punished” would always exist). Today, however, people in civil society would rightfully not expect to be punished or held liable for conduct that was not made criminal in a written law.
Obviously, you will be able to find plenty of examples of people being punished for such conduct anyways. Because our system is far from perfect. That is not a license to endorse a worse methodology.
The bottom of this post argues that rational development is predictable, and not beholden to individual views, because reason is external.
A) I doubt that reason or reason informed by traditional is in fact external to the judge. People really can have fundamentally disagreeing views of what is rational. Maybe that leads to God, maybe it leads to Nietzsche! Smart people go both ways.
B) Even if it was, the existence of some natural law means of determining the wrongfulness of conduct is cold comfort to someone, untrained in the classical legal tradition, who is trying to decide whether conduct is lawful.