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- A unified theory of a law
- A unified theory of a law
- Test your legal literacy by
Legal literacy is important especially for lawyers. Many who think themselves fluent in law are, in reality, merely semi-literate. Not you? Well, why don't you test your legal literacy? See for yourself where you stand.
The question
Here is the question:
Is a motorist permitted to go through a green light?
The question seems easy. Without hesitation, we answer,
"Yes, of course, a motorist is permitted to go through a green light." Although counter-intuitive,
the answer is wrong.
The logic that took us to the wrong answer
In the course of solving problems, we reach into a repertoire of techniques acquired over the years, pull one out and apply it. We repeat the process until a particular technique returns a satisfactory solution to the problem. One of the techniques that most of us have in our repertoire is the "not" technique. The word, 'not', has two functions: 1) it excludes an object from our consideration and 2) points to the other objects that belong to the same universe as the excluded object. In short, the word 'not' is 1) an excluder and 2) a pointer. Here is an example. Suppose an object is not green. The word, 'not', excludes green from our consideration and points to other color possibilities such as red, yellow, blue, etc.
It is this technique we use to answer the question of our legal literacy test.
We reason that either
- a motorist is permitted to go through a green light or
- a motorist is not permitted to go through a green light.
Of the two alternatives, the answer that better comports with our experience as a driver and a passenger is 'Yes, a motorist is permitted to go through a green light'. The alternative, 'No, a motorist is not permitted to go through a green light' is rejected. It is at odds with our experience. We pick the best answer that our thinking technique offers us.
Why this logic takes us to the wrong answer
The 'not' technique, while useful, is flawed. It presupposes we understand the other objects that belong to the same universe as the object excluded from our consideration by the application of the word, 'not'. If we do not, the pointer function of the word, 'not', will not work. Many are led into error who are unaware that the 'not' technique harbors this flaw.
We understand the universe of colors so the pointer function of the word, 'not', when applied to the word, 'green', actually points to blue, yellow, etc. But, do we understand the universe of laws as well as our colors? When 'not' is applied to 'permitted' to what does the pointer point? What other laws occupy the same universe as a permission?
In trying to answer the question, 'Is a motorist permitted to go through a green light?', we consider a law that is a permission and then, by using the word, 'not', we exclude it from our consideration. But, 'not' is not just an excluder. 'Not' is also a pointer. It is supposed to point us to other laws. We reason that either
- a motorist is permitted to go through a green light or
- a motorist is not permitted to go through a green light.
Unfortunately, our understanding stops here at the exclusion function of the word, 'not'. The pointer function of the word, 'not' does not work because we are ignorant of the other objects that occupy the same universe as 'not' permitted.
We flunk the legal literacy test because our law schools have failed to teach us that:
a law that is not a permission is either an affirmative command or a negative command.
As strange as this sounds, most lawyers have not been taught that there are three permutations of a law. Not nineteen, not six, just three.
How about you? Did you answer the question correctly and for the right reasons? Or did you flunk? If you flunked, the next section is a short tutorial on the three permutations of a law: 1) the regulation of affirmative conduct, 2) deregulation and 3) the regulation of negative conduct. Then, in the section following the tutorial, having been enlightened, we run through the logic again.
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Source:
OpenStax, A unified theory of a law. OpenStax CNX. Mar 25, 2011 Download for free at http://cnx.org/content/col10670/1.106
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