(Download) "Is Policy Within Law's Limited Domain?" by University of Queensland Law Journal " Book PDF Kindle ePub Free
eBook details
- Title: Is Policy Within Law's Limited Domain?
- Author : University of Queensland Law Journal
- Release Date : January 01, 2007
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 275 KB
Description
A host of contemporary jurisprudential controversies deal with the relationship between the domain of law and the various other domains of human decision-making. Although the most salient of these controversies is and has been for generations the one about the relationship between law and morality, morality does not exhaust the universe of the non-legal. There are, to be sure, important questions about the extent to which, if at all, law incorporates morality, but we can and should ask similar questions about the extent to which law incorporates economics, politics, sociology, international relations, etiquette, and the myriad other normative structures that purport to tell us what to do. It may be tempting to take a reductionist line, and consequently to conclude that what we ought to do is inevitably a moral question, and in an important sense this is correct. As long as we accept the distinction between the is and the ought, and acknowledge that one cannot derive ought from is, then it is true that any 'ought' will have some moral dimension. But accepting that the 'ought' has a moral dimension does not mean that morality is all there is, or that morality exhausts everything that is not law. (2) And thus there may be a place for recognizing that the debates about law and morality may well be just a subset of larger potential debates about law and everything else. Accordingly, an important question is the extent to which law is capable of incorporating that full panoply of non-law considerations--some empirical and some normative--that often ride under the banner of 'policy'. These debates are important, because they raise the question whether, for example, common law courts changing common law doctrine can take into account empirical propositions of policy, an approach which theorists such as Melvin Eisenberg appear to endorse (3) and theorists such as Ronald Dworkin appear to resist. (4) And to what extent is it right for courts to delve into the world of those contingent empirical facts that have not emerged as findings in the trial process, as American courts are increasingly doing with respect to issues such as racial integration (5) and criminal procedure? (6) There are almost as many definitions of the word 'policy' as there are policies, but one plausible one is that policy is simply the question of what the state ought to do. Moral to the core, but also empirical to the core, the best policy is empirically based but goes on from there, just as it necessarily incorporates a moral outlook but cannot without empirical supplementation use morality pure and simple as a sufficient condition for public action. And if this is so, then the question arises about what it would mean for law to incorporate policy or take policy into account, either as part of the rule of recognition as a necessary or sufficient condition of legal validity, or as the referent of some more quotidian legal directive such as a constitutional or statutory provision. On our view of law, which posits that legal reasons are a 'limited domain' of all the reasons there are, legal incorporation of policy may present one aspect of the question whether the part--law--can ever incorporate the whole--the universe of policy.
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