In the following essay, the first part will compare and contrast, the rhetoric of legal philosophy as described and exemplified by legality and normative jurisprudence. The answers will focus on the double meaning of rhetoric philosophy, audience common ground, topics, methods, and the intended effects.
The second part of the essay will examine the work of Scott Shapiro and Robin West in their critique of Dworkin’s best light analysis. This part will also examine the similarities of their arguments on how Shapiro would frame West’s arguments in terms of roles and trust management.
Part One. It is imperative for one to understand the distinction between legality and normative jurisprudence. Legality in nonprofessional’s language is the strict observance of laws in an inflexible way. It is following the rule of the law especially the natural law strictly without considering the circumstances that may need flexibility and different set of actions.
The normative jurisprudence on the other hand is of the argument that laws are for the purposes of containing the society and they are prone to change depending with the time and the circumstances.
This is because the laws in place are for the common good of human beings in positioning members of the society for success in their daily operations. The following points exemplify the differences and the similarities of various views as explained by different scholars.
Double Meaning of Rhetoric Philosophy. The rhetoric is an art of persuasion and its use in philosophical arguments is imperative in shaping discourse in the society. The rhetoric is imperative in the legal and normative jurisprudence as it gives the society information on the best manner of jurisprudence to apply in their governance and in legal judgments.
The rhetoric as part of the jurisprudence provides the arguments and the various opinions, which are important in representing the various parts of the society. The legal rhetoric expressed by different legal scholars from the Thomistic school of law have always supported the legalistic jurisprudence arguing that laws are set for the common good and that the laws set by the society need alignment with the divine laws.
Legality jurisprudence is of the argument that stands for the need and the necessity of incorporating the divine laws as part of the society. The rhetorical persuasions permeated through the religious discourse have provided the opportunity for legalistic proponents to exert their influence in the society.
This has seen the incorporation of the Judeo Christian aspects in the modern legal law. The legalistic rhetoric persuades the importance of having those laws as part of the society.
On the other hand, the normative jurisprudence rhetoric leans towards attainment of hegemony between those who believe in legalism and those who support independence. The normative rhetoric persuades the society to view that laws are flexible and they only help people not to go to the extremes.
They argue that laws inconsistent with the common good are also inconsistent with natural justice whether divine or human. The liberal rhetoric advocated by the liberal lawyers is that the unjust law is not a law at all. Legislation of laws intends to avail justice to all human beings and failure of law to meet the criterion makes it inconsistent.
The rhetoric of legal philosophy examines the audience and their differences in paying attention to the discourse. The audiences are the individuals who pay attention to the discourse and their position in the society. The legalistic jurisprudence audience supports the moral and the legal absolutism expressed by the law.
This audience advocates for the absolutism of the law, as formulation of law is an advance action to contain acts of injustice. It holds the view that the law is fair to those who are just and unjust. This jurisprudence audience commonly exists in religious circles where absolutism in matters such as marriage, and sexuality permeates. It holds the opinion that just laws apply to all people whether the people ascribe to those beliefs or not.
The normative jurisprudence audience on the other hand is more liberal and radical in their view of the law. The law should consider what is just for the majority and what is just for the minority. The hegemony arrived at by the two is the law.
The audience of this is usually the minority groups especially the political minorities and the religious minorities who may be at a disadvantage for their different opinions and lack of numerical strength to support their rhetoric.
Common ground refers to those aspects where both the legal and the normative jurisprudence have similar views or opinions. Both the conservative and the liberals have common agreement. The first aspect where both the legalistic jurisprudence and the normative jurisprudence concur is that of the need for law in the society.
Both schools of thoughts acknowledge that the society cannot exist cohesively without structure and mechanisms of justice. They agree there is need to have laws and structures of legislating the laws and organs of implementing the laws in the society. The two schools of thoughts also concur on the fact that laws address issues of justice and fairness in the society. Justice in this case is fairness to all.
They concur that it is imperative to ensure that the laws apply to all people. No one should be above the law set in the society, as this is the basis of justice. They agree that mechanisms set to incorporate or to formulate laws governing the society should incorporate all and sundry such that anyone who contravenes the laws made by the society does not offend an individual but the society.
There are topics, which elicit conflict in the application of both the legal and the normative jurisprudence. One of the major topics arousing interest and conflict from both the legal and the normative jurisprudence is in the issue of abortion. The interpretation concerning the sanctity of human life is a topic of interest to the advocates of the legalistic jurisprudence.
The legalistic school advocates that human life is sacred and terminating it at will is a crime and unjust even for the unborn baby. The legalistic school is rigid and at times, there are rhetoric and arguments on which life need preservation in cases where both the life of the mother and the unborn baby are in danger.
The liberal school on the other hand argues that there are circumstances where the law of sanctity of life depends on the circumstances, as the law should always consider circumstances under which the action happened. This rhetoric on this topic is yet to tone down and there are various positions advocated by the proponents of each side of the divide.
The other topic, which elicits conflict between the two aspects of jurisprudence, is that of the gay’s rights in the society. Civil laws in many countries prohibit same sex marriages. The legalistic jurisprudence school is against such marriages due to its strict adherence to natural laws that a man should marry a woman and likewise the female ought to marry the opposite sex.
The normative jurisprudence takes a different stand on this issue where it considers the sex orientation of the individual thus the normative jurisprudence considers same sex legal depending with the sexual orientation of the individuals.
The other topic of interest in this school of thoughts concerns capital punishment imposed on offenders of capital crime. The legalistic jurisprudence advocates for capital punishment as fair way of punishing capital offenders. The normative jurisprudence on the other hand sees capital punishment as contravention of the justice by doing injustice to the offender and by denying the offenders the right to live.
Various methods of rhetoric have been applied to persuade members of the public and the judicial system to ascribe to any side of the divide. The rhetoric used in the legislative processes is a way of articulating law philosophical positions. Lobbying for support of the two philosophical positions in law is a method in which rhetoric is used.
Part 2. This part explains Shapiro’s and West’s criticism on the work of Dworkin. To examine Shapiro’s and West’s criticism on the work of Dworkin it is imperative to understand the best light analysis. According to the Dworkin’s argument, law is real and integrity characterizes it. For law to have the integrity it deserves it must have two aspects. The first one is the legislative integrity and the second one is the adjudicative integrity.
According to Dworkin, a law must have the necessary integrity in its legislation process. The legislation process must have integrity when making the laws. The process must be representative of the society as a whole for the laws made to have the support and include all the aspects of the society. The other part of legislation integrity is that it must make laws that are consistent with natural justice.
When lawmakers adhere to the ideals of the integrity of the law in their political process of formulating it then the adjudicative process starts. The adjudicative process is imperative as it deals with implementation as well as application of the laws set (Dworkin 56). According to Dworkin, the adjudicative process must start with pre-interpretation of the law where the judge gathers all legal materials and precedents related to the case.
The second process is that of interpreting the law. When making the interpretation the judge must ensure that, the interpretation is based on the facts as well as the data gathered in pre interpretative stage. After examining the data, the judge must have justification of the decision shown in the best light (Dworkin 32).
Shapiro and West however criticize this view for a number of reasons. The first is the irrelevance of the consistency of the principles used by the judges when adjudicating cases. Shapiro argues that following the precedents, which were decided long ago under different times makes the circumstances different, and advocates that the adjudication should be as per the present circumstances.
Shapiro argues that the law is not integral on its own but it acts as a guiding principle that may change as per the discretion of the judge. This expression by Shapiro does not require judges to base their justifications on the entire law but on the best frit of their convictions (Shapiro and West 43).
The other criticism is on the Dworkin’s stand especially the issue of inclusion of the moral principles as part of the analysis. However, at this point Shapiro and West take different positions. Shapiro advocates that natural justice need basis on the moral principles. This principle concurs with the Dworkin’s argument on the need to have moral laws of natural justice as part of entire laws.
Shapiro is an advocate of ethics where ethics are the means through which the society adopts moral principles. The moral principles outline what is ethical and what is unethical.
However, the argument of West is that laws are social thesis of the society, which is from the norms advocated for in the society rather than from the specific moral laws. This leaves it open for the members to decide which moral laws to choose as part of their laws compared with the inclusion of the moral law in the entirety of the law.
The other aspect of their criticism is on the roles and trust management where West and Shapiro criticize Dworkin for the leaning on legalistic side on the roles and trust management in legal terms (Shapiro and West 17). Dworkin argues that trust comes out of strict adherence to the ordinances set by the members of the society and that it is lost through failure to adhere to the rules (Dworkin 78).
This is especially when there are individuals in the society who go unpunished after breaking the rules. West argues that trust comes from the agreement to change the laws when instances arise for flexibility to allow discourse to change. Shapiro refers to ethics by the members of the society as the best means of having trust (Dworkin 87).
The awareness concerning jurisprudence and various schools of thoughts, which shape the discourse on the Rhetoric of law philosophy, are imperative for both the layperson as well as legal practitioners. The awareness of the two schools of thought assists law practitioners to decide the opinions and the thoughts which to advocate for in the rhetoric.
Shapiro’s criticism on the work of Dworkin provides an opportunity to analyze the discourse on positivity and that of law as integrity. Law as integrity has usually gained support of all quarters although currently positivity has gained popularity due to its leniency on some issues of morality, as it does not bend towards conservatism but towards liberalism.
This discourse is imperative in informing legal practitioners on the various points of view existing in this field and enables them to make an informed decision on the side that they will incline to in their legal practice. It also informs the legislators of the importance of having a legislative process that is representative and full of integrity.
Dworkin, Ronald. Law’s Empire. Massachusetts: Harvard University Press, 1986. Print.
Shapiro, Scott and West, Robin. The Difference that Rules Make in Analyzing Law. Oxford: Oxford University Press, 1998. Print.