Now Hart Dworkin debate

Start with methodological issue

- View about conceptual analysis- What determines the content of the concept?

o Is it the criteria that we currently associate with the concept?- if so then if disagreement about criteria we have different concepts and so are talking past

one another- Is Hart committed to this view?

o NO – as we have seen Hart is committed to the idea of reflective equilibrium – the content of a concept can be other than the criteria that people currently associate with it.

- Green: need to draw a distinction between agreement fixing the content of the concept of law and it being the case according to the content of the concept that agreement fixes the content of the law of a jurisdiction

o Hart does not think that agreement fixes the content of the concept of law (it is determined by reflective equilibrium)

o But he does think it follows from the content of the concept of law that agreement among officials in a jurisdiction fixes the content of the law of that jurisdiction

Dworkin against Hart on Adjudication

- One question is whether judge makes or finds law in a hard case- talk like they find law

- Indeed if they were making law judges would apparently be acting unfairly because they

would be applying new rules retroactively

- And judges would be acting undemocratically

-- Dworkin argues that under Hart’s theory judges must be exercising discretion in hard

cases- Since there is no agreement among officials about the answer to the hard case, under

Hart’s theory there can be no law on the matter

a) Riggs v Palmer

- grandson murdered grandfather, may he inherit under the will?

- OK under statute

- BUT the majority on the court of appeals says no inheritance because no one may be permitted to profit from his own wrong

- this is a hard case because judges disagree about the resolution and it is resolved by appeal to moral principles

- Dworkin argues that for Hart this must be an example of judges looking to morality to create a new legal rule

- problem, judges act as if there is a preexisting answer

- lawyers argue as if there is

- how can we explain this?

Dworkin – law is the best moral justification of the existing legal materials

- That can explain how there is an answer despite legal disagreement

- What is Hart’s answer?

- Inclusive legal positivism

- Morality can be introduced into law through social facts

- Example of 14th A – it is a matter of social facts, but refers to morality (equal protection)

- But not all moral principles are introduced into the law – only those identified by social

facts

In the end, for Hart claims law is still about agreement

So inclusive legal positivism is Hart’s response to Dworkin’s first criticism

What is Dworkin’s second criticism?

Theoretical disagreement

- People think there is a right answer although they disagree even about the criteria for valid law

- Inclusive legal positivism assumes that there is agreement on the criteria for law, even though those criteria might be moral

- But Dworkin claims that there can be disagreement about criteria as well, even though people think there is a right answer to that question

Hart’s theory has a hard time answering this

To repeat:

- Two fundamental criticisms of Hart- For Hart law is determined by official agreement- - no agreement then no law- But in hard cases judges disagree – and yet think there is a preexisting answer

o They answer by appeal to moral principles- How does Dw explain this?- Law is not exhausted by agreement- It is the best moral interpretation of those materials officials agree is upon- There is a fact of the matter about what the best moral interpretation is

Hart’s response – inclusive legal positivism

- Morality can be included within the law if it is identified by social facts- If it is then the moral answers will determine legal answers even if moral answers are

contentious- Agreement on criteria of law but disagreement about their application

Dw’s response – there may not be agreement about the criteria of law – “theoretical disagreements”

That is a more serious problem for Hart

- Many positivists claim that in cases of theoretical disagreements there is simply no legal answer

Shapiro On Authority:

Criticism: submission to authority is both irrational and hostile to autonomyo Irrational: when you submit to an authority, you are doing something that is

contrary to the balance of reasons of which you are aware, which is irrational You have allowed authority to usurp your reasoning process Rationality: : the idea that an agent should act in accordance to the

balance of reasons of which the agent is aware I.e. I am going to stop at the stop sign because my balance of

reasons tells me I should do so Submission to authority usurps this process

o Autonomy: the ability to think for oneself, and reason through what one ought to do…

Submission to authority replaces that because one no longer reasons through what one should do; he/she just does

Issue: there’s no obligation to be autonomous…?o Shapiro’s Understanding of Autonomy: an autonomous agent only recognizes

content-dependent reasons for action, because these reasons for action are the only ones that morality would allow

If an authority existed, it would be able to create a moral reason to X simply by saying X and to create a moral reason to not X simply by saying not X – such a power over moral reasons for action seems impossible and someone who took an authority that had such power would not be behaving autonomously, in the relevant sense

That this is a different criticism from the rationality criticism can be seen by considering promises

Someone who does what someone else says because he has promised to do what that person says is behaving rationally in the relevant sense, because he is acting on the balance of reasons of which he is aware – but there would still be a problem with autonomy in such a case, because of the content independent nature of the obligation

o a third problem with authority a) Everyone agrees that authority is limited: under certain circumstances one is

justified in disobeying the authority b) But in order to determine whether one should disobey the authority, it appears that

one must consider the balance of reasons of which one is aware c) But if one is considering the balance of reasons one cannot be submitting to the

authority (1) You cannot engage in reasoning about whether you ought to do what the

authority said d) Thus, anyone who submits to the authority would apparently have to do so

absolutely, without considering the possibility of disobedience(1) Since absolute submission to an authority is unjustified, authority therefore

must be impossible

How to solve the puzzle – perhaps we should understand authority differently Ladenson’s Theory: legitimate authorities issue directives that do not themselves

provide reasons for action; what provides the reasons for action is the probability of punishment – under Ladenson’s theory a legitimate authority is simply one who may permissibly punish

o Thus, under this theory, autonomy and rationality are kept intact o Shapiro’s Counter-argument: the authority feels permitted to punish violations

only because it thinks the orders themselves create duties

Raz’s Theory on Authority:Dependence Thesis: The authority sums up some reasons for action, not just sending out random orders

Normal Justification Thesis: The authority provides a service or aiding to normal people, that they are more likely to satisfy the reasons for action the authority took into account by obeying the authority than by acting on their own reasoning.Preemption thesis: The authority’s directive preempts the reasons that the authority took into account. If you considered the reasons the authority took into account again that would be double counting

a) The authority cannot give orders like “you have to do the right thing”, because that would require people to use their own reasoning to decide what is the right thing to do. The authority’s order would not provide assistance to people.

b) Solves the Irrationality Problem:a. Submission to the authority is itself a reasoned decision that makes it

more likely to satisfy one’s reasons for actionc) Autonomy Problem:

a. The authority does not claim an arbitrary power to make wrong things right or right things wrong - The authority is sensitive to the pre-existing reasons for action

d) If the authority is not reasonable (corrupted or…) and not aiding you in your reasoning - It is not an authority at all.You don’t need to do whatever it says.

i. Thus, Raz is able to explain why authorities can be legitimately disobeyed

ii. You are not supposed to figure out whether the authority is wrong when determining whether to follow its direction.

1. Otherwise you would be considering the preexisting reasons for action and not submitting to the authority

iii. But if the authority’s directive is clearly wrong, you can tell that the authority is not sensitive to the pre-existing reasons for action.

1. In this process, you do not need to actually weigh your reasons for action

e) An authority is not usually an authority about everything, but about a particular thing

a. Doctor: “Take this pill.” - Preempting medical reasons for actionb. If the patient has religious problem with the pill, he could override the

doctor’s advice because the doctor’s authority only preempting some reasons for action - Not including religious reasons

Inclusive Legal Positivism is contrary to Raz’s theory of authorityi. 14th Amendment: Equal Protection - Moral quality

1. Problem:a. In order to figure out whether it is a law, you

have to figure out whether it satisfies Equal Protection

b. That means you have to use your underline reasons for action

c. The exclusive legal positivist concludes from this that morality cannot be a criterion for law

2. Thus, for the exclusive legal positivist, the morality part cannot be part of the law - But the law obligates the judges to think outside the law - morality.

ii. Green: Is it also possible for facts that they cannot be part of the law?

1. Sometimes the reasons for action, which are preempted by law, are factual ones

a. Law cannot refer to the factual reasons for action that it claims to displace

b. An example would be a court’s judgment for the plaintiff that says that the judgment is not binding if the defendant did not in fact do it

2. Thus, certain facts cannot be included in the law either

c. Shapiro’s Criticism of Raz’s Approach: 5 scenario Raz claims where authority may exist

i. Expertise:1. Example: Doctor said, “take the blue pill.”2. Raz’s theory:

a. When the government issues the regulation, it creates a reason for action that displaces the reasons for action that originally has - You don’t need to consider all the reasons.

b. When you follow the government’s regulation, it is more likely that you will abide by your reasons for action than think it by yourself

3. Simpler Theory: a. The regulation is not a reason to action, but a

reason to believe about my reasons to action. Then based on that belief, a person will make a decision by consider all the reasons.

b. So when the gov’t says take the blue pill I believe that there are medical reasons to do so. With that new belief I act on the balance of reasons of which I am aware.

ii. Bias:1. Giving the dispute to an arbitrator because we know in

that situation we are more likely to do what we ought to do than when we try to figure it out ourselves

2. Problem: - why not understand the arbitrator as creating a reason for belief

a. The arbitrator’s decision for the other side gives me a reason to believe that the other side is right

b. With that new belief I act and the balance of reasons of which I am aware.

iii. Costliness of Deliberation1. Rather than thinking about every reason to decide what

is a good choice, we can rely on the authority - The government has made it cheaper to do the right thing than we all make our own reasoning by ourselves.

2. Problem: - Once again, this may still be a reason to believe, rather than reasons for action

a. The government simply provides us a reason to believe that pre-existing reasons for action favor doing the thing the authority says

b. With that new belief I act on the basis of the reasons for action of which I am aware

iv. Coordination:1. Example: Which side of the street should I drive on?2. Cannot make the right decision individually because it

depends on what everyone else think which side they should drive

3. Government said, “drive on the right.”a. Raz: This instruction/order supplants your

reasons for actionb. Problem: It creates a new belief - Other people

are likely to drive on the right sideBecause it is now salient

v. Prisoner’s Dilemmas1. Examples where everyone making rational choice of

dominant strategy makes everyone worse off2. eg should I pollute?

a. Either other people are going to pollute or they are not

b. If they are going to pollute then I might as well – my pollution won’t make the messed up water and air any worse

c. If they are not, then I might as well pollute – my pollution won’t make the wonderful water and air any worse

d. So I might as well pollute no matter whate. But everyone has the same reasoning and we

end up with a polluted world

3. PD can also arise if assume the people are not selfish, but that they are attempting to act on the basis of the moral reasons for action of which they are aware.

a. Either other people are going to pollute or they are not

b. If they are going to pollute then I have no moral reason not to pollute – my pollution won’t make the messed up water and air any worse

c. If they are not, then I I have not moral reason not to pollute – my pollution won’t make the wonderful water and air any worse

d. So it is morally permissible to pollute no matter what

e. But everyone has the same reasoning and we end up with a polluted world

d. Is Raz right that the authority will help you to make the right decision not to pollute.

1. How does authority solve this problem without sanctions?

a. Note: everyone agrees that a system of sanctioning defectors is a possibility for overcoming prisoner’s dilemmas.

2. Assume the selfish version of the PDa. If the authority gets you not to pollute, isn’t it

really encouraging you to act against your (selfish) reasons for actions? How is the authority helping you abide by the reasons that apply to you?

3. Assume the moral version of PDa. If you already have a moral reason not to pollute

even when every other person does, then you would not pollute even there is no authority

i. So the authority is unnecessaryb. On the other hand if you don’t have a moral

reason not to pollute when every other person does, then how does the authority’s directive solve the problem? – doesn’t it give the wrong answer?

4. How about this ideai. Even though my action will not make a

practical difference, I have a reason not to pollute if other people in general are also not polluting (this is tied to the duty of fair play). On the other hand, if other people are polluting, I have no moral reason to not pollute.

ii. This puts me into a coordination problem. I need an assurance that other people will not pollute

iii. But how can the gov’t give me this assurance without sanctions? And even if it can, all it has done is given me a reason for belief, not a reason for action.

- Don’t confuse authority in Raz’s sense with the power to compel obedience- An authority can be on Mars communicating to us via radio

Shapiro: one problem is that for Raz is we seem to be making a decision to follow the authority

- But if we decide to follow the authority, then the reasons that recommend the following the authority are sufficient to do what the authority says

- We appear to be acting on the balance of reasons of which we are aware after all

Shapiro’s solution – authority has the same purposes that Raz suggests but we follow authorities by making it such that we do what they say w/o deliberating

- We in effect bind ourselves

Consider the phenomenon of planning

Say I have a plan to cook dinner

- Having made that plan and should not reconsider it absent compelling circumstances

- The plan makes it rational not too decide

Now for problem with inclusive legal positivism – Shapiro’s argument

- already saw Raz’s arg for excl legal positivism- can’t be an authority if determining the existence or content of the

authoritative utterance means looking to the underlying reasons for action the authority is supposed to displace

Shapiro’s argument

- starts with a great account of philosophy of law in general- how can we make sense of legal institution’s claim to legal authority- any claim of legal auth presupposes legal rules granting it - chickens – authorities- eggs – rules granting it- Austin – chicken approach (a lawmaker without an authorizing law)

- Hart – Eggs can arise w/o chickens- You can have authorizing law without lawmaker issuing it

o How?

Shapiro Draws distinction between norm governed and norm guided behavior

Norm = any standard of behavior

- Norms governed means norm applies to you- Eg do not jaywalk norm governs NYers- Norm-guided behavior is behavior that conforms out of consideration

of the norm- Can be norm governed w/o being norm guided- Jaywalkers in New York are governed by the do not jaywalk norm but

are not guided by

Hart – ultimate norms in a legal system govern behavior of officials simply because they guide their behavior

- This is the idea of of the internal point of view – officials accept the standard, and that is what makes it govern their behavior

- Social rulesa. Infinite regress problem solved: In Hart’s theory, norm-guidance gives rise to

norm governance, and is able to confer authorization/legitimacy of highest lawmaker.

i. Hart originally said that the same applies to morality tooii. But Shapiro/Dworkin argues that the reason why we accept morality is not

because we are guided by it; he argues that it is the reverseiii. People consider themselves to be already governed by morality and

therefore are guided by it. b. Dworkin argues the same thing is true in law

i. (i.e. Riggs – No man should profit by his wrongdoing; Judges act like there is a norm that governs this case; in hard cases, pre-existing, governing legal principles guide decisions.)

2. How does Hart respond to Dworkin’s criticism?3. Dworkin attributes three theses to the positivist:

a. Pedigree Thesis – Law is always identified by it pedigree, not its content. Goes all the way to the rule of recognition.

b. Discretion Thesis: If there is not any law left/when legal rules are exhausted, the judge is legally unconstrained/has strong discretion to do whatever he wants.

c. Obligation Thesis – We can ignore because not questioned. 4. Response:

a. Abandon the pedigree thesisb. Inclusive Legal Positivists’ Approach: It is not true that you always have to

identify the law through pedigree. Instead, it is permissible to determine that a rule is law by examining its content. Ultimately this is because the rule of recognition has moral criteria or validity or the law introduces moral criteria or validity for lower laws. To the extent that there are pre-existing moral answers in such cases there will be preexisting law. Morality is identified as law by the rule of recognition. The idea is that because it is identified as a criterion for law, it is possible to use morality if it is followed by the rule of recognition.

i. Moral criteria as part of the rule of recognition. c. Notice that this is still positivist because moral criteria are relevant only to the

extent that they are identified through social facts in the rule of recognitioni. Ex. 14th Amendment – Must think morally to determine if equal protection

is satisfied. 1. If a law violates 14th amendment then it is not law. Moral criteria

for something to actually be law. 2. By making reference to moral considerations, the law continues to

adhere to the rule of recognition. Pre-existing moral principles in conjunction with a rule of recognition that makes reference to such preexisting moral facts, entertains the theory that morality produces a preexisting legal fact.

ii. When explicit legal rules run out, morality becomes law. d. Exclusive Legal Positivists’ Approach: Concerning the question, “What is law?”

i. Keep the pedigree thesis in its entirety. One never looks at the content to determine whether something is law. A judge makes law when he decides a hard case on the basis of moral considerations. Once a judge articulates an opinion it is law, because the judge’s opinion can be identified by pedigree.

ii. But the exclusive legal positivist abandons the discretion thesis 1. Judges can be legally obligated to consider morality when the law

runs out, but morality is not a law. The idea is that the judge is legally obligated to look to morality; the law that is the judgment only exists once he articulates it.

iii. When law runs out judges have a legal obligation to look at other non-law norms; they do not have full discretion.

iv. A law violating equal protection is a law right now; the Supreme Court is obligated to look to morality in order to strike down the law and make it not law.

v. No pre-existing legal answer.e. Primary difference: For the ILP you must take morality into account to figure out

what the preexisting law is; For the ELP judges make the law, but are legally obligated to look to morality in formulating an opinion/adjudicating a case.

5. The Argument Against ILP – Is morality part of the law or a norm that officials are required to look to?

a. Norm-guided behavior – distinguishes two types:i. Epistemological –

1. Guided only by sanctions. One looks to law to determine what the content of the law is and so how one is likely to be sanctioned.

ii. Motivational – 1. Motivated by a law because a person feels he ought to abide by the

law; acceptance of the rule of recognition. Not motivated out of fear of sanctions.

6. Let us begin with the form of inclusive legal positivism in which Morality/Moral Considerations are sufficient to determine what the law is.

a. In the rule of recognition: when law/statutes run out, morality must be used to answer the hard case...ILP then means that morality is law. It is sufficient to think morally to figure out what the law is.

i. Problem according to Shapiro – If one is guided by the rule of recognition one cannot be guided by the laws that are supposedly identified by the rule of recognition.

1. By virtue of accepting the rule of recognition I have accepted morality for hard cases

2. Having done that, the moral rules identified by the rule of recognition (like no man shall profit from his wrongdoing) make no practical difference

3. Assumes that morality is static. 7. Example: The rule of recognition says: What ever is moral is law.

a. If you accept this rule, laws that moral principles are redundant.

Second Argument

a. This is directed at the form of inclusive legal positivism of in which Morality is a necessary, not sufficient, condition for law.

b. Put differently: Legal rules are valid UNLESS they violate a moral principle (moral principles is necessary condition).

i. Shapiro's problem - in order to think about whether the law is valid, you have to refer to the same reasons for action that the law is meant to displace.

1. E.g. Congress's statutes on employees' pay are valid law UNLESS they are grossly unfair (moral principle)

2. But gross unfairness is one of the reasons for action the law was meant to displace

3. the problem is that the validity of the law, its very existence as law, depends upon its not being grossly unfair. There is no problem with a valid law that does not displace the reason for action of gross unfairness. But such a law does not have its validity depend upon its not being grossly unfair.

4. In saying that the law is not valid if it is grossly unfair, it is suggested that the law preempts all reasons for action including gross unfairness

a. But if that’s true, then in requiring one to consider gross unfairness, one is required to consider the same reasons for action the law is meant to displace

ii. For the exclusive legal positivist in contrast, the constitutional provision that says that congress’s statutes on employees’ pay are valid unless they are grossly unfair must be reinterpreted

1. Not being grossly unfair is not a condition for valid law. Instead, congress’s statutes are valid but do not preempt the reason for action of gross unfairness

2. The equal protection clause would be another example. Although this looks like a condition for the validity of law, for the exclusive legal positivist it must be reinterpreted. In effect the EPC is limiting the preemptive scope of every law that Congress passes. It's not a necessary condition for valid law, it's simply a limitation on the preemptive force of valid laws.

a. So the law can be valid even though it violates equal protection, but it can't preempt the reasons for action tied to equal protection.

b. To say otherwise is to argue that the law is meant to preempt all other reasons of action, including other law/morals. That's incoherent bc it requires you to take into account the things that the law is supposed to preempt.

3. Doctor example

a. "Take the blue pill." That order preempts all of your medical reasons for action. That's a valid medical directive, even if it doesn't preempt ALL reasons for action (e.g. gun to head, religious objections, etc).

i. Exclusive legal positivist - the directive is valid, but it's only partially preemptive of your reasons for action

b. Imagine that a Dr. said instead “ ‘Take the Blue Pill’ – this directive is valid if isn’t overridden by nonmedical (e.g. religious) considerations

i. This doesn't work because you have to consider those non-medical reasons for action to determine the validity of directive. Although the

doctor appeared to have conditioned the validity of his directive upon its not violating non-medical reasons for action, what he really did was issue a valid medical directive that preempted only medical and not non-medical reasons for action.

c. Reality - it's a valid medical directive right now, to the extent that it displaces medical reasons. But it's not dependent on or preemptive of things that a medical directive doesn't displace (e.g. gun to head, religion).

4. In the same way, law must be valid without morality

a. But the function of provisions that refer to morality like the equal protection clause is that they limit the preemptive scope of the law to not include those relevant moral considerations

b. In our legal system the isolation of the preemptive scope of the law is probably only with respect and judges

i. If Congress passes a statute that preempts many reasons for action that the judge might consider otherwise. But because of the equal protection clause equal protection is a moral reason for action that is not preempt

ii. The judge can (indeed must) consider that reason for action in determining whether he should strike down the law.

3. Sum up: the inclusive & exlclusive legal positivist agree on whether judges look to morality to decide legal questions, but they disagree as to which part of the law is LAW and which part is only morality.

 

2. Brink, Legal theory

1. Theory of hard cases among positivists - gap in the law that a judge has to fill in (acting like a legislator)

a. Created by the semantic properties of the words in the legal rules

i. e.g. no vehicles in the park - include stroller?

b. Meaning of a word is exhausted by the criteria for using the word that people accept at a particular moment

i. Water -

1. Then: liquid, transparent, potable;

2. Now: H2O

3. Intensionalist view: people with these positions are talking past each other

c. Extensionalists argue that the meaning of the term is not the same as the criteria people use in connection with the term

i. Although people thought water in the past was a transparent tasteless potable liquid, they were wrong about the meaning of their own word

ii. Water meant H2O

d. Under an Extensionalists theory Fidelity to the meaning of the constitution does not necessarily = fidelity to what was in the minds of the founders

i. The meaning of the term can outstrip what's in the minds of the people who use the term at the time they use it

ii. e.g. gold standard - heavy yellow metal v. atomic AU gold; toxic - what's actually toxic, not what people thought was toxic at the time

e. Natural kind v. Moral terms

i. To say that someone is incorrect when they argue that, for example, slavery is just, is to imply that people share a

concept of justice, it even though they might have different criteria for using the concept

ii. Scalia - ppl who wrote constitution wouldn't have called execution cruel & unusual

1. Specific v. general intent to refer to a given criteria (e.g. specific - water=H2O v. general - water = whatever I'm pointing to at this moment)

2. Presumption in favor of specific intent would constrain judges in their discretion, but has other negative consequences too