Justifying a legal system differs fundamentally from causally explaining it through politics or psychology

Evidence

[This book] discards the notion that law takes place within a framework that is independent of the structure of legal argument. It rejects the view that a set of legal presuppositions exists that are discoverable in the absence of legal argument, upon which legal argument is supposed to depend. The entire enterprise in which others are engaged seems to be based on a confusion between the justification [of the system]—which is that legitimation that results from the operation of the various [modalities]—and a hypothesized causal explanation for [law] derived from socio-political thcories.’ — Philip Chase Bobbitt, Reflections Inspired by My Critics, 181

Categorization

• DEFINE: Defines the key distinction between justification (legitimation via legal argument modalities) and causal explanation (socio-political theories) that drives the author’s whole approach.
• XREF: Connects to the enforcement-vs-legitimacy debate in legal philosophy and to Raz’s and Hart’s theories of law’s normativity. — connects to: Traditional doctrinal explanations may genuinely explain many judicial decisions. — Frederick Schauer, Thinking Like a Lawyer, 259; Philosophical reframing precedes legislative prohibition by decades in Sweden — , The Rod and the Child: A Global History…, 11071; Day in and day out we send people to jail, or take money away from them, or make them do things they do not want to do, under coercion of force, and we justify all of this by speaking of such persons as having broken the law or having failed to meet their legal obligations, or having interfered with other people’s legal rights. Even in clear cases (a bank robber or a willful breach of contract), when we are confident that someone had a legal obligation and broke it, we are not able to give a satisfactory account of what that means, or why that entitles the state to punish or coerce him. We may feel confident that what we are doing is proper, but until we can identify the principles we are following we cannot be sure that they are sufficient, or whether we are applying them consistently. In less clear cases, when the issue of whether an obligation has been broken is for some reason controversial, the pitch of these nagging questions rises, and our responsibility to find answers deepens. (+11 more)

Related

• Pre-political publics read legal injustice through law rather than political categories (similarity 0.87)
• Bobbitt asks whether Patterson believes in the pricelessness of human beings because humans are capable of love, that our decisions are impossible to explain causally because they are products of… (similarity 0.79)
• and their presence in our political discourse does not require us to deny them legitimacy or to corrupt our forms of decision according to law. American constitutional law can be a profoundly… (similarity 0.78)
• Judicial accommodation of parallel legal systems perpetuates mafia bargaining. (similarity 0.78)