‘Faulty Knowledge About Law’

Arden Rowell, Law, Belief, and Aspiration (2017), available at SSRN. Theories about law frequently assume that people know what the law is. Theoretical accounts of the rule of law by Lon Fuller, Joseph Raz, and Friedrich Hayek, for example, emphasize that law must be prospective, clear, public, and stable, because it must be capable of guiding behavior. The assumption that people know what law is shows up in HLA Hart’s assertion that a necessary condition for law is that valid ‘rules of behavior’ promulgated by the legal system ‘must be generally obeyed’. This assumption is also manifested in theoretical claims that criminal laws deter crime and tort liability creates incentives for behavior. These and other discussions about the supposed consequences of law often take for granted that people have a correct understanding of what law requires … (more)

[Brian Tamanaha, JOTWELL, 8 August]

First posted 2017-08-09 07:05:32

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