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Lisa: If Ross is a positivist, how can he put logical constraints on what goes on in amendment?
Green: for a positivist like Ross, the social facts upon which a legal system is based are facts
about people’s beliefs and attitudes
- The nature of those beliefs and attitudes will have consequences
- Including certain requirements of consistency
- That is what makes self amendment impossible
Now Hart Dworkin debate
Start with methodological issue
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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
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And judges would be acting undemocratically
Dworkin argues that under Hart’s theory judges must be exercising discretion in hard
cases
under Hart’s theory of law, the law is a question of social fact
Since in hard cases social facts run out, and morality is appealed to, that must mean judges
are exercising discretion to create new law
Basically acting like legislators
Henningsen v. Bloomfield Motors
a. the court was asked to hold an automobile maker liable for injuries sustained as
the result of defective manufacturing despite the fact that the injured plaintiff
signed a waiver of liability
b. A court appeal to the following principle “in a society such as ours the
automobile manufacturer is under a special obligation in connection with the
construction, promotion, and sale of his cars”
c. This moral principle was used to answer the case
- 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 is 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
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What is Hart’s answer?
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Inclusive legal positivism
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Morality can be introduced into law through social facts
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Example of 14th Amendment – it is a matter of social facts, but refers to morality (equal
protection)
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In addition, the rule of recognition itself can include moral considerations
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For example, it can be part of the rule of recognition that certain principles of equity are
included
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Or it can even be part of the rule of recognition that morality as a whole is included to
solve a case when pedigreed legal norms run out
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But this is not true of every legal system
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Whether morality is included is a question of social facts about the rule of recognition of
that particular legal system
In the end, for Hart claims law is still about agreement
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Notice that even if there is disagreement about what morality requires in the hard case,
that is simply a disagreement about the application of the rule of recognition, not a
disagreement about the content of the rule of recognition
So inclusive legal positivism is Hart’s response to Dworkin’s first criticism
We will discuss later a second response to Dworkin among positivists
This is exclusive legal positivism: the exclusive legal positivist denies that morality can be
included within the law
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Law is only a matter of social facts, not just the social facts about the rule of recognition,
but also the criteria in the rule of recognition, or in any other legal rule, cannot be morality
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The position is subtle however, for the exclusive legal positivist does not deny that judges
can be legally required to look to morality
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He just denies that morality is part of the law
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For an analogy, consider the fact that judges when deciding the amount of damages are
required to look to mathematics, but that does not mean that mathematics is part of the law
What is Dworkin’s second criticism?
Theoretical disagreement
- People think there is a right answer although they disagree even about the ultimate criteria
for valid law
- Inclusive legal positivism assumes that there is agreement on the ultimate criteria for law,
even when those criteria are 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
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Tennessee Valley Authority v. Hill
q was absurd consequences of statute
According to Burger, the plain meaning of the text should control even when
absurdities follow unless compelling evidence can be found to show that Congress
did not intend the absurd result.
Powell, on the other hand, argued that plain meaning should not control when
absurdities follow unless compelling evidence can be found that Congress did intend
the absurd result.
can we explain this as agreement about content but disagreement about application?
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hard
But people think there is a right answer
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 (notice that moral realism is being assumed here)
- Agreement on criteria of law but disagreement about their application
Dw’s second criticism – 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
- Judges are being disingenuous when they claim there is a legal answer