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5 - Aspiration and Impulse

Published online by Cambridge University Press:  20 April 2018

Lewis D. Sargentich
Affiliation:
Harvard Law School, Massachusetts
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Summary

The formative aspiration of liberal law is to bring about nomological legality. Nomological legality has three components. The conditions that make it up are legal entitlement, legal justice, and legal rationality. Entitlement exists when valued positions of persons depend just on the meaning of standing laws. Justice exists when legal argument sustains like judging of like cases. The existence of legal entitlement and legal justice depends on the operation of rational legal argument. When entrenched in doing of law, the aspiration to bring about nomological legality gives rise to a dual impulse. Two different kinds of legal striving are constantly undertaken within liberal legal practice. First, formalization hammers out legal rules, precepts knowable and applicable without the conduct of moral inquiry. Second, idealization attributes practical moral aims ‒ principles and policies ‒ to rules and uses the aims to guide and shape the rules. Each of the kinds of argument developed within liberal legal enterprise, formal argument and ideal argument, seeks coherence. Coherence is a fundamental requirement of law-like legality. The imperative of coherence tells legal argument to seek rational connection of laws ‒ statable structure ‒ in every area of law.
Type
Chapter
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Liberal Legality
A Unified Theory of Our Law
, pp. 53 - 87
Publisher: Cambridge University Press
Print publication year: 2018

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