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- A unified theory of a law
- A unified theory of a law
- The formation of a lawmaker's
The two stages of the process of making a law
The process of making a law takes place in two stages:
1)
Formation and
2)
Externalization .
During formation, a Lawmaker forms an opinion about conduct flowing from a Source to a Recipient through circumstances. During externalization, the opinion of the Lawmaker is conveyed.
This chapter is about the first stage of the process of making a law, i.e., Formation.
A lawmaker's opinion arises from the facts
Conduct flows from a Source to Recipient through circumstances. These are "the facts". They are depicted at the base of
The Triangle of Law . A Lawmaker, at the acme of
The Triangle of Law , despises "the facts" below and forms an opinion about them. What is the nature of the opinion that a Lawmaker forms about conduct flowing from a Source to a Recipient through circumstances?
Like, neutrality, dislike and the spectrum of opinions
The opinion formed by a Lawmaker about conduct flowing from a Source to a Recipient through circumstances is no different than the opinion that we form about anything.
- We like it,
- We dislike it or
- We just don't care.
Furthermore,
- When a Lawmaker likes conduct, a desire to turn on the flow of conduct arises.
- When a Lawmaker dislikes conduct, a desire to turn off the flow of conduct arises.
- When a Lawmaker is indifferent to conduct, harboring neither like nor dislike, no desire with regard to the polarity of conduct arises.
These are the opinions that a Lawmaker forms about conduct flowing from a Source to a Recipient through circumstances. Like results in a desire for affirmative conduct. Dislike results in a desire for negative conduct. With indifference, however, neither a desire for affirmative conduct nor a desire for negative conduct arises. Because indifference is about both affirmative conduct and negative conduct, we can sever it in twain and treat it as two separate opinions instead of one opinion. Moreover, after indifference is severed in twain to produce two separate opinions, we can reorder our list of opinions so the two opinions dealing with turning off the flow of conduct and the two opinions dealing with turning on the flow of conduct are grouped together. Thus, we can rewrite the opinions of a Lawmaker as follows:
- When a Lawmaker likes conduct, a desire to turn on the flow of conduct arises.
- When a Lawmaker does not like conduct, a desire to turn on the flow of conduct does not arise.
- When a Lawmaker does not dislike conduct, a desire to turn off the flow of conduct does not arise.
- When a Lawmaker dislikes conduct, a desire to turn off the flow of conduct arises.
Instead of organizing the opinions of a Lawmaker vertically into a list, they can be organized horizontally onto a spectrum. The spectrum of opinions looks like this:
Presence of like --- Absence of like --- Absence of dislike --- Presence of dislike.
Of the four opinions, the toughest to understand -- and when understood, the toughness dissipates -- are the two opinions in the middle of the spectrum of opinions. Why? They represent the absence of a thing. The absence of a thing is harder to understand than the presence of a thing. With presence, a thinker needs only to understand the thing itself. With absence, a thinker needs to understand the thing itself and then overlay it with the concept of absence.
The two opinions in the middle of the spectrum of opinions are negations. They negate the two opinions at the ends. A negation has two functions: 1) it excludes and 2) it points. A negation excludes the opinion negated from our consideration and, because the number of opinions in the universe of a Lawmaker's opinions is only four, points us to the other two opinions. Please note that the other two opinions are always about the opposite polarity of conduct. When a legal thinker encounters either of the two negation opinions, they tell the legal thinker not to look over here at this polarity of conduct but to look over there at the opposite polarity of conduct.
Let me inject a word of warning here. Legal thinkers fall into the trap who think that negation points to only one other opinion. The number of opinions in the universe of opinions available to a Lawmaker is four. When one opinion negates another opinion, two are used up - the negation and the opinion negated - and two are available to the Lawmaker - the two opinions dealing with the opposite polarity of conduct. A Lawmaker who does not like conduct, either dislikes it or does not dislike. A Lawmaker who does not dislike conduct, either likes it or does not like it.
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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