Unit 3
The Basic Roles of
Paradigmatic Legal
Systems
What Are the Basic Roles in
Paradigmatic Legal Systems?

With the introduction of new sorts of
social rules, rules that are distinctively
legal, come new sorts of social roles,
roles that are distinctively legal.
What is a Social Role?

A social role can be defined as a set of rules. A
role is constituted by two kinds of rules:
occupancy rules and performance rules.

An occupancy rule specifies what must be the
case for someone to be in that role.

A performance rule specifies what is to be
done by someone who occupies that
role.
What is a Social Role?


The roles that are fixed by the nature of legal
systems are that of subject, legislator, and
judge.
The role lawyer is not. There can be fully
fledged legal systems without lawyers, so the
role of lawyer cannot be basic to the legal
system. (You cannot, however, have a fully
fledged legal system without the roles of
subject, judge, and legislator.)
What is a Social Role?

Also functionally secondary are roles
that we might collectively call
‘‘enforcement’’ roles, roles like that of
police officer, prison warden, or
executioner.
What is a Social Role?

When we answer the conceptual question
about the occupancy and performance rules
associated with a certain role, we are not
thereby advocating that anyone act in
accordance with the requirements of that role.
We are merely describing the role.

In answering the substantive moral question,
we are no longer able to be morally neutral.
The Role of Subject

To be a subject is not necessarily a voluntary
undertaking. It is very difficult to live anywhere
in the world without being a subject under
some legal system. While there may be some
choice concerning the legal system to which
one is subject, being subject to some legal
system is not a matter of choice.
The Role of Subject

So we should not think of the occupancy rules of the role
subject as including a voluntariness condition: to be a
subject does not require one to adopt that role voluntarily.

To say that the role of subject does not include
voluntariness or self-definition among its occupancy rules
is just to say that one is expected to adhere to the
demands of that role regardless of whether one can
agree to it or not and regardless of whether one wishes to
think of oneself in those terms or not.
The Role of Subject



What are the performance rules?
What is it to be a good subject?
To be a good subject, I think, is a matter
of obedience: the good subject obeys
the law, and in particular, the law as it is
officially interpreted.
The Role of Subject

Deference is required both to the legal
norms and to the legal officials charged
with interpreting and applying those
norms.
The Role of Subject

Why should we characterize the role of subject
in this way?

There are at least two reasons, one of them
conceptual, built on our earlier observations on
the nature of law, and the other empirical, built
on observation of legal systems. The
conceptual point is that this is how we would
expect the role of subject to be defined, given
the authority commonplace.
The Role of Subject

Law is authoritative, giving (or being taken to
give) decisive reasons for action; the parties to
whom it gives those decisive reasons are
subjects, those under the law’s jurisdiction.

The empirical point is that this is how official
pronouncements from legal systems treat the
demands of the role of subject. Courts tend to
treat rather dismissively the claim that subjects
are not bound to adhere to its norms.
The Role of Subject

Is one morally bound to comply with the
demands of law? If so, under what
circumstances, and what are the limits of
this required obedience?
The Role of Subject

Is it a matter that I really ought to take my turn.

Why? Because it is unfair that I should reap the benefits
of others’ efforts, which were produced by their adhering
to a rule that divides up the burdens of a regular ride. By
taking the benefits and refusing the burdens, there is an
unjustified inequality among us – by being a free-rider, I
take advantage of their efforts, making me better off than
they without any adequate rationale.
The Role of Subject

The suggestion, then, is that subjects
ought to obey the law because
subjects are bound to do their fair share
for the commongood and the law
provides a reasonable way to determine
what counts as one’s fair share.
The Role of Subject

There are, of course, other reasons to
worry about this account (e.g.,why
is it that the law gets to decide what
counts as each person’s fair share?
what gives it the privileged position of
rendering these decisions about
how the burdens of promoting the
common good are to be distributed?)
The Role of Legislator

The qualifications to occupy the
legislative role – that is, to hold the legal
power to make rules deemed valid by
the rule of recognition – are fixed by
social practice, and social practice might
authorize as legislators persons who
have never wished to and in fact may
strenuously want not to occupy that role.
The Role of Legislator

The job of the legislator is, of course, to make
law. But it would be silly to describe the rolerequirements of the legislator in quantitative
terms: the more law made, the better.

To make good law, the law made must be
authoritative and it must be for the common
good. Otherwise, that law is defective.
The Role of Legislator

Whether a good legislator should make more
law or less, and precisely which laws should be
adopted or rescinded, is to be regulated by the
constraints that law is to be authoritative and
that it is to serve the common good.

One constraint on the role of legislator is that
the norms that are made into law must be
authoritative.
The Role of Legislator

What this means, recall, is that the norms that
are made must be able to provide genuinely
decisive reasons for action for subjects.

This places the legislator under two sorts of
constraints with respect to the making of law.
The Role of Legislator

The first is that the legislator’s proposed
norms must exhibit authority-potential –
they must possess the formal features
that make it possible for agents to treat
them as guides to action.
The Role of Legislator

The second is that the legislator’s proposed
norms must exhibit not just formal authoritypotential but must genuinely count as decisive
reasons for subjects.

What this entails is that the substance of the
rules that are laid down must be sufficiently
reasonable that subjects can rightly take those
rules to be binding.
The Role of Legislator

The legislator’s job, by contrast, is to
legislate from the perspective of the
people, taking on their opinions,
attitudes, preferences, and so forth, so
that the lawmaking activity that flows
from the legislative office is one that
reflects the people’s own views of what
ought to be done.
The Role of Judge

To be a judge is to be designated by the
rules as someone whose applications of
the rules of that system, or some of the
rules of that system, count as
authoritative.
The Role of Judge

The performance rule for the role of
judge is that judges are to apply the law
in their resolution of disputes. That is to
say: in occupying the role of judge, one
who resolves a dispute should resolve it
in a way that is determined by the law
that bears on the dispute.
The Role of Judge

Occasionally cases are easy: there is
relevant law that bears on the case, both
the law and the facts of the case are
perfectly clear, and the proper legal
outcome follows as a matter of
straightforward deductive logic from the
clear law and the clear facts.
The Role of Judge

But cases are often hard. (Easier cases
tend to be handled apart from disputes in
front of judges: if it is clear that a tort has
occurred and compensation is owed,
there will typically be a settlement out of
court; if it is clear that a crime has been
committed, a plea arrangement will
be made.)
The Role of Judge

All judges agree that it is crucial to attend to
the text of the statute: the words that were
used, and actually voted into law by the
relevant legislature. No one is advocating
simply ignoring the text of the statute.

And all judges agree that the text has its
meaning only by way of a context.
The Role of Judge

Almost everyone agrees that judges
sometimes have discretion in the making of
their decisions, and that it is not entirely
objectionable for those who occupy the role of
judge also to be charged to engage in limited
discretionary decision making. What there is
much more disagreement about is the extent of
the discretion that exists in typical legal
systems.
Hart

Hart’s view is that discretion is a pervasive
phenomenon: legal rules characteristically
have a ‘‘core’’ and a ‘‘penumbra,’’
where the core consists in a set of cases in
which the rule’s application is determinate and
the penumbra a gray zone in which it is simply
an indeterminate matter whether the rule
applies.
Dworkin

Ronald Dworkin argues that judicial discretion
is actually a very limited phenomenon – in
some texts he seems to deny that there are
any cases in which judges are free simply to
exercise discretion in resolving disputes – for
the law contains a wide variety of general
principles that help to determine correct legal
answers when the law’s plain meaning is
exhausted.
American Legal Realists

On the other extreme is the view of a
group of philosophers of law called the
‘‘American legal realists’’ who claim that
all or nearly all judicial decisions are
discretionary, that the role of judge as a
discoverer of what the pre-existing legal
rules require is, for the most part, a
charade or illusion.