This new book advances a fresh philosophical account of the
relationship between the legislature and courts, opposing the
common conception of law, in which it is legislatures that
primarily create the law, and courts that primarily apply it. This
conception has eclectic affinities with legal positivism, and
although it may have been a helpful intellectual tool in the past,
it now increasingly generates more problems than it solves. For
this reason, the author argues, legal philosophers are better off
abandoning it. At the same time they are asked to dismantle the
philosophical and doctrinal infrastructure that has been based on
it and which has been hitherto largely unquestioned. In its place
the book offers an alternative framework for understanding the role
of courts and the legislature; a framework which is distinctly
anti-positivist and which builds on Ronald Dworkin's interpretive
theory of law. But, contrary to Dworkin, it insists that legal duty
is sensitive to the position one occupies in the project of
governing; legal interpretation is not the solitary task of one
super-judge, but a collaborative task structured by principles of
institutional morality such as separation of powers which impose a
moral duty on participants to respect each other's contributions.
Moreover this collaborative task will often involve citizens taking
an active role in their interaction with the law.
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