The Download of the Week is Rule is a Dual Character Concept by Guilherme Almeida, Noel Struchiner, & Ivar Hannikainen. Here is the abstract:
Recent experimental work revealed that rule violation judgments are sensitive to morality. For instance: when someone blamelessly violates a rule's text, about half of the participants say that the rule was violated, with the remainder saying that it wasn't. Why is that so? Current evidence is compatible with three distinct explanations. According to the pragmatic view, rule violation judgments pragmatically imply judgments of blame. Hence, the results don't tell us anything about the concept of rule itself. Instead, they are simply caused by conversational pragmatics. On the other hand, the mixed character view states that the concept of rule simultaneously combines text and purpose into a single criterion. Finally, the dual character view states that the concept of rule is similar to the concepts of scientist and father. These concepts have two distinct sets of criteria, each sufficient to determine one sense in which the concept applies. One of the criteria is descriptive, while the other is normative. In this paper, we report the results of five studies designed to adjudicate between these alternatives. Study 1 finds results that are incompatible with the pragmatic view, while Study 2 shows that the concept of rule behaves in a way that is notably different than some mixed character concepts on a linguistic test. Finally, Studies 3-5 support the idea that the concept of rule has a dual character. We consider the jurisprudential implications of each alternative.
And from the end of the paper:
[S]pell[ing] out in a precise manner both the normative and descriptive sets of criteria that guide the application of the concept of rule . . . might allow for reconciliation between rival conceptions of law. Thus, the efforts to find, on the one hand, the descriptive elements that bind together our usage of the concept of law (a task to which many legal positivists have dedicated their lives), and, on the other hand, the characteristic values associated with that usage (something that many philosophers in the natural law tradition strived to do), might be conceptualized as complementary -- rather than rival -- enterprises.
Fascinating. Highly recommended.
Also posted this week is: The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning by your blogger.
