#19668 - 5.C. The Relationship Between Law And Morality Legal Positivism And Its Critics Methodology - Jurisprudence

Methodology

LECTURE(s)

• Success or failure of an enterprise depends on the GOAL

  • One is better/worse if they’re trying to achieve the same thing – Hart disputes this

• Method – way of doing jurisprudence (or something)

• Hart isn’t trying to say what the law ought to be – he’s clarifying the general framework

  • Also says it’s descriptive sociology (his book)

    • Strange – none of his methods actually resemble sociology

• Dworkin – general theory of how law is to be identified isn’t a neutral thing

A - Neutral-Descriptive Legal Theory

• Law can be identified without moral judgment

  • Also claims that LEGAL THEORY can be done without moral judgment

• You can claim that law is horrible or brilliant

• Hart says his theory is:

  • General – not a theory of a particular legal system

  • Morally neutral

  • Descriptive – doesn’t justify/commend structures which exist in general account

• Hart’s approach is broadly scientific, BUT this doesn’t mean was AGNOSTIC on moral/POL issues

• Clarifying the concept of law, BUT he rejects Dworkin’s idea that he’s just talking about “law” (that it’s all a semantic theory)

  • Makes sense why Dworkin would say this – Hart talks about words and their meaning

• Takes important features of law (e.g., LEGIS, rules, punishment, etc.) – makes a theory of things that are already there = that’s why he mentions sociology too

B - Morally Motivated Legal Theory

• Dworkin is against an “Archimedean” theory of law – theory of the world from outside the world

  • Our view is always from a particular perspective – theory of law is a theory that is COMMITTED

• There is a pre-interpretive concept of law, but this too makes little sense

• E.g., “justice”, “liberty”, etc. – you can’t get a theory of those concepts without some sort of judgment about them (of what you think is just, free, etc.) = no escape from committed position

  • These are POLITICAL CONCEPTS – big DISAGs among people here

    • They go to the HEART of the issue = not borderline issues

    • These are distinct from other types of concepts – e.g., natural kinds (e.g., gold, water), or statistical generalizations, or merely semantics

      • Deep structure of POL concepts is NOR – value-laden; INCLUDING LAW

        • When some asks “what is DEM?”, they are also asking what kind of a SOC they want (it’s a deep question)

• Law is an INTERPRETIVE concept – legal theorists must give an interpretation of it that puts it in the best light

• Law is about justifying coercive power = to do this, it has to justify a scheme of rights/principles

• Judges don’t always do this interpretive exercise well – that’s what they should aim to do

• Concepts v conception

  • Different conceptions of law

  • Hart offers a concept of law, but it’s quite trivial to talk of it like this

    • Hart’s critique of Austin’s theory – law isn’t like a gunman; but why not? That can’t be just because we use different words = must be something that MORALLY justifies the State

      • Point is – Hart strays into the realm of MORAL EVALUATION

        • Another example – secondary rules cure defects of system with primary

• No firm line divides JURIS from ADJUD; when a judge is ruling, it’s on the basis of a conception of law

  • POSs’ response – my theory isn’t how judges should decide cases, it’s a theory of law

    • NO – those two things are INSEPARABLE

• Dworkin RECONSTRUCTS LP as a NOR theory of law (an interpretive theory) – conventionalism

  • If it’s a conventional rule, it has certain NOR

  • Pretty bad theory – if coercion is based on something being settled in advance, what in all those cases where the law “runs out”? Pivotal cases are oft of that sort

C – Indirectly Evaluative Legal Theory

• Yes, base of legal theory must be evaluative – Archimedean legal theory makes no sense (Dickson)

• HOWEVER, there are other ways of judging the merit of a legal theory – very different from morality

  • E.g., financial value, aesthetic value, etc.

• A theorist must pick some theory + must have some criteria for deciding if X theory is better, BUT that doesn’t make on morally committed; e.g., clarity, simplicity, etc. = general theoretical virtues

• Third way – between purely descriptive and morally motivated = indirectly (non-morally) evaluative

D – Defending Positivism on Moral Grounds?

• CL isn’t some mystical artefact from the past – it can be changed; judges “finding” law = MAKING it

• When choosing between LP and antiP, we must choose one that’ll advance/clarify MORAL deliberations

  • One reason to choose LP – a moral reason (+ intellectual clarity)

• Claim – LP weakened resistance to Nazism = gives excessive authority to settled law

  • Hart says LP actually helps resist against tyrannical regimes – insists on separation between law and morality = just because something is law, doesn’t mean it should be followed (morality = separate)

    • FACILLITATES moral criticism of the law

• LP – analytically correct + offers a clearer response to the existence of evil law

• There are situations outside of “evil law” too, e.g.:

  • SOP – in Dworkin’s world, judge has massive power

  • Minimizing the power of judges

  • Enhancing DEM ACC

• For Dworkin, all these questions are integrated (theory of law, best interpretation, what judge should do etc.) = LP wants to separate them out for some purpose

READING(s)

HLA Hart, “The Concept of Law: Postscript”

I – The Nature of Legal Theory

• General theory = not tied to any specific legal system

• It’s also descriptive = morally neutral, without justificatory aims

  • Many concepts are used in description – e.g., ROR, ROC, external POV, etc.

• This makes it different from Dworkin’s conception of legal theory

  • For him, legal theory is “interpretive” – identifying principles that “fit” with settled law + provide the best moral justification for them

    • Principles identified are part of theory of law AND implicit parts of law itself

    • Jurisprudence is therefore the general part of ADJUD

• No reason for conflict between the two conceptions

• Yet, Dworkin rejects general/descriptive legal theory – criticism:

  • Legal theory must account for internal POV; can’t be provided by descriptive theory (external)

    • Wrong – participants accept the internal POV in accepting law as providing guides to their conduct/standards of criticism

      • True, a descriptive legal theorist must UNDERSTAND what it is to adopt internal POV – he must put himself in insider’s POV

        • BUT this doesn’t mean surrendering his descriptive stance/endorsing insider

    • Dworkin think of juris as “the general part of ADJUD” – treats juris/legal theory as itself part of system’s law (as seen from internal POV by participants)

      • Point is – descriptive theorist may understand internal POV without adopting it

        • Even if this also assumed MORAL reasons for conforming to law

• Partly evaluative issues (“interpretive”) aren’t only issues in juris – important part for general/descriptive

• Dworkin backs up a bit – juris = general part of ADJUD, ONLY where juris covers “question of sense”

  • In discussing e.g., RELAT of law to coercion and to moral requirements, descriptive legal theorists will have to face questions answerable only by interpretive/evaluative theory

    • Must determine the meaning of propositions of laws in many legal systems

      • BUT why MUST it be interpreted via Dworkin’s interpretive/evaluative question?

        • If all the world’s judges did so according to Dworkin’s question, then the general descriptive theorist would record that = becomes a fact

        • Description can still be description, even if described as an evaluation

II – The Nature of Legal Positivism

Positivism as a Semantic Theory

• “Semantic” – rests on meaning of the word “law” = WRONG

• Dworkin thinks that only DISAGs about questions of law are on existence/non-existence of historical facts = no theoretical DISAGs about “grounds” of law

• First POV = If grounds of law weren’t fixed, then “law” would mean different things

  • Doctrine of ROR doesn’t presuppose that it’s part of the word “law”, nor that it must be in all legal systems, nor that if criteria weren’t fixed, “law” would mean different things to different people

  • MEANING of a concept vs criteria for its APPLICATION (last ARG) – criteria for applying a concept with a constant meaning can vary

• Since law as social phenomenon involves lawyers debating truth of propositions of law, such a theory must be semantic

  • Meaning of “law” is DISTINCT from propositions of law

    • Semantic = meaning of “law” makes law depend on certain criteria

    • Propositions = STATs not of what law is, but what THE LAW is

• Dworkin also says that criteria in ROR must only consist of historical facts = “plain-fact POS”

  • WRONG – ROR needn’t only have pedigree = can have moral values and restraints

Positivism as an Interpretive Theory

• Second POV = Dworkin tries to reconstruct “plain-fact POS” as an interpretive theory – “conventionalism”

  • Criteria of law = plain facts; not fixed by vocab of law, but by conviction shared by judges/lawyers

    • Legal coercion depends on plain fact – available to all = fair warning before coercion

• This reconstruction isn’t accurate, however:

  • Not plain-fact theory of law (Hart’s) – admits values in criteria of law, not merely facts

  • Dworkin assumes that point of law is to justify coercion = Hart doesn’t fixate on a specific purpose

    • RoR also helps for intelligently exercising legal powers (e.g., contracts) + intelligent planning private/public life = not only about coercion

Soft Positivism

• Dworkin also assumes that criteria of legal validity consists only of specific kind of plain fact – “pedigree” matters” (manner/form of...