#26 - Must Be True, Subject Perspective

[sarae]

Can you point me to the correct lines in the passage that supports answer D?

Thanks!

[Steve Stein]

Hi sarae,

That answer comes from the second paragraph, in which the author provides that legal positivists believe the meaning of a law rests on social convention--the decision rests on consensus interpretation, not on deciding what is morally right.

I hope that's helpful--please let me know whether this is clear--thanks!

~Steve

[sarae]

I see, but why is answer choice C incorrect?

[Steve Stein]

Hi sarae,

Thanks for your response. The positivists, according to the passage, believe that the meaning of the law is not based on underlying morals or logic, but on consensus interpretation.

I hope this is helpful! Please let me know whether this is clear--thanks!

~Steve

[sarae]

Makes sense!

[avengingangel]

So, according to the explanations provided here / the passage, why is E incorrect? Line 23-24 (in the paragraph describing legal positivists) read: "Where there is no consensus, there is no legal fact of the matter." That seems very similar to what E says. Can someone please explain this to me? Thanks.

[Adam Tyson]

Hey there angel, I am going to push back on you a bit here. First, read every word of answer choice E - don't cherry pick. There's something there that sinks it. Second, before we respond, how about you tell us not why you think E could be correct, but why it is better than answer D? An answer being right or wrong is not what this test is about - it's about an answer being better or worse than another. So, if you are considering answer E, you must think it is better than answer D, right? Tell us why, and be sure to pay attention to every word of both answer choices. Once you have made that argument, we can talk further about it.

Talk to you more soon, I'm sure!

[biskam]

Hey there angel, I am going to push back on you a bit here. First, read every word of answer choice E - don't cherry pick. There's something there that sinks it. Second, before we respond, how about you tell us not why you think E could be correct, but why it is better than answer D? An answer being right or wrong is not what this test is about - it's about an answer being better or worse than another. So, if you are considering answer E, you must think it is better than answer D, right? Tell us why, and be sure to pay attention to every word of both answer choices. Once you have made that argument, we can talk further about it.

Talk to you more soon, I'm sure!

I understand why D is correct--postivism is about consensus about the law's conventions, so the jurists' interpretations over the conventions fits here.

But I picked E at first because of lines 17 onward: "positivists regard disagreement among jurists as legitimate only if it arises over what the underlying convention is, and it is to be resolved by registering a consensus, not by deciding what is morally right"

I feel like the aforementioned quotes plus the idea that if there is no consensus, there is no matter of fact law checks all the boxes for E. So what makes E incorrect?

Thank you!

[Claire Horan]

Hi Angel and Biskam,

Between lines 10-15, note this sentence: "Legal positivism, the more popular of the two theories, holds that law and morality are wholly distinct." Legal positivists would not consider jurists' differing moral convictions to have any bearing at all on a legal question. The lines you have quoted are reasons for eliminating (E): "There is no legal fact of the matter when jurists have differing moral convictions about an issue." If there is a consensus, there is law, regardless of the jurists' convictions.

If this is still unclear, I would suggest going back to the View part of your ViewSTAMP analysis and understanding the differences between the three views explored in this passage: Legal Positivism, Natural Law, and Dworkin's view. As with many passages that compare viewpoints, Dworkin's is kind of a synthesis of the other two views. By comparing and contrasting these views as you read the passage, you will be less distracted by the incorrect answer choices.

Good luck!

[sqmusgrave]

I eliminated D because I thought it was doing that sneaky trick they love where they use a word that subtly makes an otherwise great AC incorrect. The text says that "the positivists mistake...is assuming that the meaning of law can only consist in what people think it means, whether these people be the original authors of the law or a majority of the interpreter's peers"
To me jurists' deciding on the meaning of law are neither the majority nor the original authors of the law. Because of this, I thought that by using the word "jurists" they were doing a classic tactic of subverting a single word to make it wrong.
I just don't understand how we're supposed to catch these in some instances but accept it as a reasonable substitution in other instances?

I'm guessing the response will be that I have to choose the "least incorrect answer" but I felt like B, despite the strong wording could work because the text says disagreements are legitimate only if it arises over the underlying convention. So I assumed that if the disagreement is about the exact meaning of the law, and the meaning is something like the original intentions of the law maker/law's intended interpretation , then it's *not* disagreeing based on underlying convention and therefore it cannot be legitimate.
So by saying disagreements about "meaning" we are failing the necessary condition of "convention" and using Modus Tollens to arrive at the idea that it's "not legitimate" aka "never legitimate" as the AC says.

Why is it incorrect to make an assumption about what it means to disagree over the "meaning" of the law, but correct to assume that "jurists" is the same thing as the "majority".