Conceptions of Practice

Nicos Stavropoulos

in Objectivity in Law

Published in print April 1996 | ISBN: 9780198258995
Published online March 2012 | e-ISBN: 9780191681899 | DOI:
Conceptions of Practice

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This chapter discusses several problems connected with the claim that legal practices determine the content of legal concepts. It examines the well-known arguments of Stanley Fish, and shows how he oscillates between a convernionalist conception of practice and an objective conception of practice. Fish's views supply a good opportunity for sharpening the objective conception of practices, since he defends a sophisticated pragmatism that purports to retain some sceptical character, while avoiding the pitfalls of straightforward conventionalist conceptions. The chapter also deals with the objection that failure to respect conventional or legislators' subjective understanding of the concepts used in the law will result in substituting law for morality, and that only good law will be identified, so that the distinction between law and ideal law will collapse. Several different examples of legal interpretation are discussed in an attempt to show that no bias towards good law is implied by applying concepts in an objective way. Finally, the chapter addresses a variant of misunderstanding objectivism, under which it is thought to make for conservatism, and examines Michael Moore's arguments regarding discourse autonomy.

Keywords: Stanley Fish; legal practices; legal concepts; pragmatism; good law; legal interpretation; objectivism; conservatism; Michael Moore; discourse autonomy

Chapter.  19736 words. 

Subjects: Jurisprudence and Philosophy of Law

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