#19667 - 5.B. The Relationship Between Law And Morality Legal Positivism And Its Critics Positivism’s Critics - Jurisprudence

Positivism’s Critics

LECTURE(s)

• Hart – concept of law = rules

  • Not the same as habits, commands – not just the “gunman”

  • To understand legal system, you must understand primary and secondary rules

  • Every legal system has RoR – what rules of the SOC are legal rules

    • Specifies the criteria of legal validity

    • Since RoR isn’t a legal rule itself, it’s a social practice

      • Officials within the system adopt internal POV

• Fundamentally, it’s all about a complex SOC practice – nothing morally virtuous about it

Positivism’s Critics

• Positivism v natural law

  • Different debate than Dworkin’s debate

    • Natural lawyer don’t necessarily object to LP – it’s in some ways trivially true, but it’s not an “interesting” thesis

      • The point is – WHY we need law

• Dworkin’s challenge is more profound – LP isn’t even trivially true = it’s WRONG

• Two ways to reject LP:

  • Yes, law is generally identified by reference to SOC facts, but in reference to very unjust laws = exception (e.g., Nazism)

    • In such situations, law is defeated by morality (moral filter)

  • Law is ALWAYS determined by moral judgments (“moral reading”)

    • A more fundamental criticism – always, not just in exceptional situations

• Dworkin rejects that law is predominantly about rules

  • Notably, that legal systems have RoRs

  • Two aspects of this critique:

    • He has law wrong

    • Hart is misguided in the way he does legal theory

• Law is about standards/principles – they are essential for identifying what rights/duties we have = GOVs have a duty to enforce them; law isn’t just about describing how a SOC functions, even from internal POV – it’s something MORE THAN THAT

  • A lot more at stake for Dworkin

A – Principles and Discretion

• Hart commits two main errors

• In a legal system, when judges are deciding/lawyers are arguing, they don’t only look at the legal rules – they try to identify a broader body of PRINCIPLES that exist in the law

  • These principles may transcend particular rules

    • Obviously, rules exist and they are clear, but even then, they must be understood against the background of legal principles

• Equally so, for positivists, when rules run out/aren’t clear, then the judge uses DISCRETION – not really what they do = they address it as part of a broader body of rules

  • There are always resources for judges/lawyers to look to

• E.g., Elmer’s Case [1889] [USA] – grandson poisons grandfather = wants to claim inheritance; seems to be no exception on literal reading (for inheritance based on murder – he gets property despite killing him) = applying the rule amounts to an injustice

  • Majority – judges use broad principles to read STAT

• Rules v principles = serious difference

  • All or nothing; can’t conflict with each other

    • Have weight, but may be outweighed by other principles

  • State conditions for their application

    • State reasons for decisions

  • Necessitate X decision

    • Count in favor a particular decision

  • May run out

    • Don’t run out

  • Can be validated by a “master rule”

    • Have power due to sense of “appropriateness”

• Positivists disagree – judges have a social practice of using principles = not an issue

  • They are different prima facie, but it’s a matter of degree (principles v rules)

  • RoR requires judges to apply certain principles

• HOWEVER, RoR can force judges to have recourse to moral judgments/principles:

  • E.g., “cruel and unusual” punishments

    • Debate between inclusive and exclusive legal positivists

      • Hart seems to favor inclusive POV, but he was unclear

      • Inclusive:

        • Legal system need not have morality (not necessary)

        • It’s still the law as a social fact that’s decisive – it’s not that morality autonomously is part of law

          • Positive law instructs to use morality, but this is only because of positive law

      • Exclusive:

        • Morality doesn’t become part of the law – it’s like when GBR law says to use GER law = still not a part of the system

• Dworkin rejects BOTH of these positions – law can’t exist without moral judgment

B – Social Rules and Moral Duties

• Law tells people they have duties

  • Does that mean that duties only exist by virtue of social practice?

    • In the case of LEGAL duties, RoR exists because official accept RoR and practice it

      • BUT this isn’t a response to Dworkin’s challenge – duties = moral duties, not just legal duties

        • Just because officials do something, means that they generate duties (Hart) – Dworkin says this must be WRONG

          • Many duties exist without their being any sort of social rule – e.g., vegetarian example = not a SOC rule; some duties are generated INDEP of SOC

• Duties DON’T exist because there’s a social rule

  • Hart concedes this, but the RoR is a social rule = not a big deal

    • RoR creates duties, simply because other people entertain it

      • E.g., one of the reasons because judges accept acts-in-PAR is because it’s a convention (other judges adhere it)

• Dworkin isn’t satisfied – not all SOC rules create duties = e.g., lying

  • Concurrent morality is DIFFERENT from conventional morality

    • Lying is wrong not because other people think it’s wrong – people have an INDEP belief that it’s wrong

      • E.g., acts-in-PAR – people agree to it not because other judges do, but because e.g., they believe in DEM-elected GOV

Social Rules and Moral Duties

• RoR = it’s importance is partly a matter of practice

  • It’s not just a concurrent SOC practice, but a conventional rule

• Rules are conventional SOC practices if the general conformity of a group to them is part of the reasons which its individual members have acceptance for

• Hart wants to retain the fact that legal duties have a particular quality

  • Special quality for Hart – that they are conventional rules

    • Questionable – it’s a very particular type of rule (POGLEDAJ FURTHER - READING)

• Dworkin is dissatisfied – that’s not the type of duty that law generates = just because something is conventional, doesn’t mean you should follow it

  • Law is more than just convention

• Another issue – if RoR is a conventional rule, then it’d seem like we should all agree on what it is = conventional rules only work if we know what they are

  • When lawyers/judges discuss law, there are massive DIFFERENCES

C – Theoretical Disagreement

• Distinction – GROUNDS of X v PROPOSITIONS of X

  • Grounds (of law) – criteria of validity

  • Proposition (of law) – Elmer shouldn’t be able to benefit from inheritance

• Positivists – law as a matter of plain fact = we agree on grounds, but not on propositions

  • There are many ways of interpreting law, resolving disputes, etc.

    • Empirical disagreement – what does the relevant SOC source say?

• This is WRONG – when we disagree, we also disagree about GROUNDS of law

  • Theoretical disagreement, on top of empirical

• E.g., Elmer’s case – purposive v literal approach

  • Positivists – disagreement about how to APPLY RoR

    • Doesn’t mean that there’s no RoR

  • Core v penumbra

• Another response – e.g., maybe SOC sources specified in RoR say Elmer should win; judges are allowed to change the law in certain cases, however – RoC

  • Therefore, judges disagreed about whether they SHOULD change it

    • It’s not really theoretical disagreement – it’s about what law should ne in cases where there’s no “fact of the matter”

• Hart is in a bit of bind – in some cases, there’s no settled practice (RoR)

  • Whether you’ll be able to change a conventional rule is if others begin do so – “all that succeeds is success”

    • If you establish a new criterion of validity, then RoR changes = maintains the basic premise of legal positivism, whilst acknowledging that judges can sometimes make modifications

      • Dworkin – this isn’t what judges do = they don’t just say that the law has run out, I’m going to now make a judgment

        • E.g., Elmer’s case – majority presents decisions as COMPELLED by existing law

          • Once law runs out, they don’t present what they do as discretionary

            • From positive POV, either judges are concealing what’s really going on, or they’re following themselves

              • Dworkin – no reason to think that judges are working under a massive self-deception = not sensible

• Another point by Dworkin – judges disagree in pivotal cases

  • E.g., does life begin at conception? This isn’t borderline disagreement, it’s fundamental – not just words, but basic moral disagreements

D – Law as an Exercise in Constructive Interpretation

• Dworkin’s alternative to positivism

  • Requires looking at PURPOSES of social practices

    • Law = link between past political decisions and current coercion; we have to justify this in the best moral light

      • Morality is embedded in the law through and through

• Two criteria that judges/lawyers look at:

  • Fit

  • Justification

READING(s)

Dworkin, “The Model of Rules II”, pp. 65 – 79

• Wrong to suppose that there’s a commonly recognized fundamental test – only possible for simple legal rules (e.g., set out in STATs, or in textbooks)

  • BUT in deciding cases, lawyers/judges look at legal PRINCIPLES too

    • E.g., no man can profit from his wrongdoing

    • Two escapes for positivist (POS):

      • Judges aren’t appealing to standards, but using their discretion

      • A common test does identify principles counting as law (and not)

• Counterarguments (mainly Raz):

  • Dworkin’s thesis = amendment to POS POV

  • Argument contra discretion supposes that some principles are/aren’t law, but if this is so, there must be a test for distinguishing the two

  • Dworkin’s ARGs suggest the ultimate test – judges refer to role that X principle had in previous legal ARG = test of “INST structure”

  • Judges sometimes forced to exercise discretion (unclear which principle...