Q26

[oslo90066]

I chose E, and while I understand why D is right, I do not completely understand why E is wrong. According to legal positivists, do jurists not deliberate when they have differing moral convictions? Lines 27 to 30 say, ¨According to Dworkin, this account is incompatible with the actual practice of judges and lawyers, who act as if there is a fact of the matter even in cases where there is no consensus.¨ So if judges and lawyers act as if there is a fact of the matter, doesn't that imply that legal positivists act as if there is no legal fact of the matter?

[ManhattanPrepLSAT1]

Really good question.

I like your train of thought and I can see how you came to the belief that answer choice (E) is also inferable from the passage, but there is a problem with your chain of reasoning...

If your read lines 14-20 carefully, you'll see that legal positivists attempt to come to a consensus on social convention, and not what is morally right. If you look closely at answer choice (E), I think you'll find that while it begins in way consistent with the passage "there is no legal fact of the matter...", it ends by falling off a cliff. This is a very typical way of generating incorrect (but tempting) answer choices in the reading comprehension section.

Nowhere in the passage do the legal positivists discuss what happens "when jurists have differing moral convictions about in issue." Instead, the subject is what happens when jurists have different beliefs about what the consensus view is of a particular social convention. Since we are looking for an answer choice that is inferable (ie. must be true based on the information contained within the passage), and the legal positives do not discuss what happens when jurists have differing moral convictions, we cannot say that answer choice (E) is inferable.

[monicajamaluddin]

I ended up choosing D but only because I couldn't find a better answer. My issue with this answer is that it says the meaning of the law derives from the jurists' interpretation but in the passage it says the meaning is based on social convention. Is the jurists' interpretation supposed to be the same as social convention?

I understand that the passage goes on to discuss that jurists' argue about what the convention is but it's the convention that should determine the meaning of the law rather than the disagreement between jurists, or am I just confusing myself here?

[jabushawish4]

i also have an issue with D. meaning of laws derive from interpretations of jurists. wouldn't consensus be more what we are looking for here?

[kaseyb002]

i also have an issue with D. meaning of laws derive from interpretations of jurists. wouldn't consensus be more what we are looking for here?

A consensus comes through an agreement of the jurists' interpretation of the law. So I guess you could still say that the meaning of a law is derived from a jurists' interpretation, even though it left out the part that it needs to an agreement of those interpretations...or something like that. I got this wrong too so I am trying to explain it for myself as well.

[randitect]

I can't figure out how D is justified... D sounds more like Dworkin's suggestion, which is based on a critique of the positivists. For D to be correct, it would have to be a *mutually agreed upon* interpretation about the *social convention* on which meaning of the law rests. D states neither of those...

Any help on this one would be really great. Thank you.

[agersh144]

Doesn't E seem to imply because there are differing moral convictions about the issue there is perforce not consensus? And if their is not consensus doesn't that trigger the sufficient condition ~Consensus > ~Legal fact of manner which is exactly what we find in E if different moral conviction (i.e. not consensus) > no legal fact of manner (cf. Line 23-24)?

[ohthatpatrick]

Let me try to tidy up some of the qualms about (D) and (E).

First, with (E) - someone was suggesting that if we know jurists have differing moral convictions, then we know there is no consensus.

I think that's an unfair leap.

The consensus refers to the meaning of the law, not whether or not it should be a law.

Twelve jurists might all concur that the meaning of a certain law is, "It is illegal to possess marijuana".

But maybe half of them have moral convictions that agree with that law and half of them have moral convictions that disagree with it.

Possessing all the same moral convictions is not the type of consensus that 23-24 is referring to.

In terms of (D), everyone is correct to think that if (D) just said "social convention" instead of "jurists' interpretations", it would be a tighter fit for lines 14-16.

But welcome to the horrible world of Inference questions ... they're not playing a friendly game of verbatim excerpts. Instead, we have to find rephrasings we can live with.

If we see how "underlying convention" is being used in the following sentence, lines 16-20, we can see that jurors have to decide for themselves (and then collectively agree or disagree) on the underlying convention.

I think one of the posters nailed it when he/she was saying that the jurors, in trying to reach a consensus, have to interpret the law.

If the law (or the underlying social convention) left no room for interpretation, then there would be no possibility of disagreement.

Since there is possibility for disagreement, there's apparently some shades of grey in how you interpret the law.

Positivists believe that the only legitimate task for jurors is to come to a consensus over what the underlying convention is.

An interesting implication of the positivists' position is that the meaning of the same law could potentially change from trial to trial, if different groups of jurors reached a different consensus on the underlying social convention.

Hope this helps.

[raziel]

I think there is an easier way to spot the answer rather than having to make a big inference. In line 46-47, the author writes that Dworkin believes that positivists' mistake is that they think that the meaning of the law is whatever people think it means, whether it is what the original authors meant or what the interpreters' peers think. I think the latter refers to other jurists. Answer choice (D) is almost a perfect paraphrase. Considering this , it doesn't seem like a terrible leap to assume that jurists require interpreting the law in order to say what they think it means, as others have pointed out.

[CeridwynA112]

Why is B wrong? It seemed to me that positivists believed in a sure interpretation of the law based on convention.

[Misti Duvall]

Why is B wrong? It seemed to me that positivists believed in a sure interpretation of the law based on convention.

I think the disagreement is about how to interpret the law; whether to use convention or morality. You're right that legal positivists believe that interpretations should be based on convention, but that doesn't mean there's never a disagreement about a particular convention.

Hope this helps.

[logicalt870]

Why is B wrong? It seemed to me that positivists believed in a sure interpretation of the law based on convention.

B is also incorrect because it directly contradicts Paragraph 2 of the passage. When the legal positivism theory is discussed in Paragraph 2, one sentence says "Dworkin's view is that legal positivists regard disagreement among jurists as legitimate only if it arises over what the underlying convention is...", thus demonstrating that legal positivists can believe that disagreements about the meaning of a law are legitimate.

Another point, although slightly less relevant, is that legal positivists have a system for resolving disagreements about the meaning of the law (through a consensus). It is unlikely that they would have such a system if they thought disagreements about the meaning of a law were never legitimate. If they believed in a sure interpretation of the law, as you mentioned, there would be no such system for resolving disagreements.