Thursday, January 24, 2013

Flexibility of the Law

When I was reading Dworkin I was really able to connect with his ideas. As an actor being flexible (not just physically, but mentally too) is a very good, but I would argue a needed, quality as it involves taking into consideration direction, character motivation, and reacting to various stimuli when in performance. Flexibility then seemed to be a very strong attribute of Dworkin's Law as Interpretation. His idea of interpretation can then be seen as when he discusses how judges need to react to various cases. They need to interpret the law, when needed, such as in hard cases. When I say flexibility I do not mean that one can do whatever one pleases as that would pragmatism which  Dworkin was against, but rather a way of making logical and rational decisions.
Aristotle discusses in his poetics that thought, the third most important aspect of tragedy, has very little to do with poetry but has very much to do with the actor. Thus, we can view that the actor can be a judge in his own sense as both are a kind of interpreter. The other two aspects of tragedy that rank higher according to Aristotle are plot and character. Plot can be seen as the case or trial, so it would follow that a case which is not a 'hard case' would not have need of interpreting and would then follow a predicted path of action. For example, most stories follow a similar pattern. Avatar for instance is no more than a hyped up version of Pocahontas. This is just one example but many more can be seen if one looks closely enough, especially in religious stories. Hopefully this kind of makes sense because what is trial but an analysis of a modern day tragedy (the magnitude of the tragedy depending on the action of the case itself or whether it is a town or the Supreme court).
Another way I was thinking about Dworkin was comparing his idea of law to the idea of a tree. Each new growth of a limb will effect the next branch and twig, which relates to how judges must interpret previous cases and the whole of the law (the tree) itself. In terms of a goal within law of interpretation, we can bring into account Plato and find that the law (the tree) is trying to reach towards goodness (the Sun) as Wacks had written on Dworkin, "It [law] adopts a constructive approach in that it seeks to improve our lives and our community." So to me, law of interpretation is the most organic sense of law (at least from what I've read so far) as it is able to grow freely by what is best for the community and the citizen. This would be compared to legal positivism, which if it was a tree would die probably quickly because if a big gust of wind came by it would snap it due to it having no flexibility. Maybe law doesn't necessarily work like that . . but maybe it does! Regardless, I feel flexibility is a needed trait in the law for it to arise to new and ever changing conditions of the material world.

1 comment:

  1. I like this idea of flexibility, but I wonder if the term connotes a possible weakness, i.e, we might act contrary to our better judgment, when accommodating others, in degree. There's a lot of good stuff in here, seems like three distinct ideas.

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