Strengths and weaknesses of Robertsons argument
Strengths and weaknesses of Robertson’s argument
Name
Institution
Introduction
According to Robertson (2007) law has two sides or stories: orthodox and unorthodox. The orthodox side portrays law as consistent, rational, coherent and predictable while the unorthodox side portrays it as changeable, inconsistent, malleable and, rhetorical. Robertson’s argument is true and has existed for as long as humans have been governed by laws. Robertson seeks to explore each of the sides with the belief that they are both necessary for the law to properly realize its function. Some law-jobs may require malleability to be realized while some best thrive on consistency.
Predictability and Certainty: origin and examples
Robertson is right to point out that certainty originates for the rules of law and liberalism. The rule of the law emphasizes formal legality and the role of judges. Formal legality is a requirement that every citizen should be familiar with the law, so that they can organize their lives to steer clear of the legal sanctions. For law to be understand and handled this way it must be consistent. According to Robertson (2007) “it must be a clear and consistent system of public rules with predictable outcomes.”
On the judges’ role, Robertson feels that, judges can not inject their view points or perception into decisions, but must be solely guided by stipulated laws. This means that laws must be comprehensive and able to apply to various fact situations logically and yield uniform outcomes regardless of whether it is the same judge giving verdicts or not. In this argument Robertson is wrong since situations are always different and ruling cannot be universal.
Liberalism is a production of the 16th and 17th century religious wars between Catholics and protestant partisans in West Europe. Liberalism aimed at creating procedures and principles for governing the society without being partisan to any of the warring factions. Neutral procedures and principles of liberalism could regulate the partisan faction in an impartial way to achieve harmony. Law adopted the liberalism principles of neutrality rationality serve members of the society equally thus creating predictability and consistence.
Malleability and uncertainly: origin and examples
The unorthodox, flexible or malleable nature of the law originates from the dissatisfactions with the rigidity of a consistent body of law. According to Robertson (2007) dissatisfactions led to introduction of “flexibility devices such as legal fictions and equitable principles … to produce more satisfactory results”. Such exceptions were a means of dealing with a limited number of critical cases but, legal theorists perceived them as anomalous challenging the orthodox nature of law. Irrespective of how consistent law is designed to be it cannot always guarantee concise answers to legal disputes. Rules can be applied differently in different circumstances and as a result can not always provide a concise outcome. The realists believe that rules only serve to mask the real reason for a judge’s decision and court decision remain hard to predict (Robertson, 2007).
The rule of the law is also subject to manipulations and therefore does not guarantee any consistency. One result is unachievable since the connotations of legal rules are malleable and not immutable (Role and Origin). “The ration decidendi of a past case can be revisited and re-described. Stare decisis was therefore not compulsion by the past; rather it was a mechanism for choice, change and adjustment” (Robertson, 2007). Similar manipulation approaches can be legitimately used in statutory interpretation thus undermining the notion of consistency of the law.
A rigid meaning of law can lead to several perfectly applicable legal rules, each with different results or consequences. Judges would always have to make a decision which legal rules of legal results are desirable and factors unrelated to the legal rules would have to be considered. The myriad of conflicting and competing rulings concerning past conflicts interests that received any form of recognition in courts, and got results rationalized would further complicate present ruling (Robertson, 2007).
Robertson’s argument Discussion
Having considered the origins of the two notions and how their proponents support them and discard the other, Robertson feels that the two are both sides of the applicable to the law and service the purpose of making law achieve it propose (Robertson, 2007). There are different law job that best handled be either of the approaches to law. Although this argument is valid since is supports the idea of taking into consideration the uniqueness of a situation, its main weakness is that give a law double standards and may present significant challenges in term of defining and issuing justice. People will always choose what favors them
Robertson’s augment also considers the two notions of the law two sides of the same coin, which is right. Despite both the side having sound justification it not always certain which side will carry the day in case, the same way it is impossible to predicate which side of the coin will be seen when a coin is tossed. However, both are meant to realize justice. However, this makes law a gambling game which should not be the case. Justice should not be a game of chance especial if the consequences of case may be costly to the parties involved.
Another strong supposition by Robertson in his argument is, although the law may seem indeterminate and, that, with determination, one can achieve desired out come using rhetorical efforts, which point to unpredictability and malleability, it is always possible to predict the out come of the efforts hinting at predictability (Robertson, 2007). Any one seeking rhetorical work has to use legal instruments, legal avenues, and arguments, among others that have produced previous rhetorical success. All manipulation therefore must stay within the law according to established doctrines, which makes the law remain predictable.
Finally, Robertson is correct to note that rhetorical manipulations normally encounter great resistance for those defending the status quo (Robertson, 2007). An example of such manipulation is the issue of same sex marriage. Many faction of the society and religions condemn the act, however those interested in same sex marriage effortlessly manage to use the constitution’s bill or rights to get same sex marriage and homosexuality acceptable as a human right (Role and Origin). According to Robertson, when a manipulation generate an particular understand that gain acceptance in the great rhetorical context, the new understanding can easily gets adopted and become the orthodox from as little as a single case to numerous case spanning to over a century. Consistent engagement in manipulative rhetorical strengthens the stability and certainly of laws as well as lead to formation of new laws. The engagement is form of reconciliation between sound claims of both the orthodox and unorthodox views.
Conclusion
Robertson is correct law has both predictability and certainty, and malleability and uncertainty. Unorthodox rhetorical practices can phase out, deleting one orthodox and creating another, while acceptable orthodox notion with firm shared understanding will always resist prevailing rhetorical. Possession of both the characteristic of orthodox claims and unorthodox claims give the law the ability to serve it functions in the society and government. The orthodox claim give law it characteristics: coherence, predictability and rationality to satisfy the desire of the society. While the unorthodox nature emphasizes the digression with law that enables it take care of diversity within the society thus maintaining social order in pluralistic communities (Robertson, 2007). This entails being malleable to the specificity of a situation (Robertson, 2007). Unfortunately, as he finds these sides of the law complementary Robertson fails to acknowledge the mixture of these two can be problem if no clear direction is available on what is to take precedence. Every will be right in their own way
References
Robertson, M. (2007). Telling the Law’s Two Stories. Can. J. L. & Jurisprudence. 429, p429-451.
Role and Origin. In The role of law: Coming to terms with relevance and purpose of our legal system
