Tag Archives: Essay

Harris Legal Philosophies, Ch.14:

by ,
  • Judges often take into account what the law ought to be in assessing whether X is a correct interpretation e.g. “if that interpretation is correct then Y must be true which would be unfair/illogical etc”.
  • Dworkin says law isn’t something we give information about: it is something we argue about: Discovery of law requires “constructive interpretation” i.e. the discovery of law involves finding the morally truest statements about the rights of citizens which will fit the legal materials. This is his “rights thesis”. NB if true then we cannot complain about result based reasoning or the ensuing legal uncertainty.
  • Dworkin says principles are legal and bind judges- see week 1 reading. This attacks the idea of law as a system of rules only. Principles are different from rules since rules are either “all or nothing” (2 conflicting rules cannot both exist) whereas principles “have a dimension of weight”.
  • Hart’s postscript argues that principles can enter law but only when validated by a superior rule e.g. the rule of recognition. He also refutes that principles and rules differ in logical type: he says the difference is one of degree: rules simply have more conclusive force but, like principles, can be overridden.
  • Dworkin denied the positive solution to where law runs out or “hard cases” (that judges have a strong discretion to make law) and instead says that judges have no discretion: they are bound by principles.
  • The correct constructive interpretation will depend on which has the closes fit with the data available and has political merit. Therefore law is interpreted in a moral way.
  • How is state coercion to be justified? Three possible answers: Conventionalism (see week 1 reading); Legal pragmatism; or “law as integrity” (Dworkin’s answer).
    • Conventionalism is bad as there often are no clear social conventions guiding the application of law and when this is the case conventionalism provides no justification for depriving people of their liberty, property etc. For Dworkin, positivism = conventionalism.
    • Legal Pragmatism says that there are no just grounds for state force. Since law = justified coercion, there is no law, but merely a fiction that certain provisions create legal consequences on pragmatic grounds. In so doing, the political pragmatist favours whatever political goals he considers best. Dworkin rejects this- judges and lawyers are not simply making up rules.
    • Law as integrity says that coercion is justified where the community exhibits the virtue of integrity i.e. so long as the community has a well thought out system of values it has integrity. Dworkin says this explains why past political decisions (taking effect in statute or precedent) still bind. This explains legal controversy: disputes are not merely about the applicable social conventions, but what would show the community’s treatment of its subjects in the best light i.e. law = the best politics that fits the legal materials.
  • Dworkin says the best politics (and that which therefore is used by the courts etc) is that of “fraternity” i.e. shared responsibility for actions, concern for all equally etc. This standard of integrity turns community force into law. Thus there is a fundamental right to be given equal concern in the construction of law, which means giving everyone basic rights.
  • Dworkin says that either positivists do believe in interpretation but in a value free way (conventionalism, which he claims is false) OR deny the need for an interpretative attitude because they say we know what law is by looking at the way ordinary people use the word “law”. If it’s the second, lawyers who have a dispute about the law are really arguing purely about linguistic usage, which would be absurd. Harris says the semantic sting argument is bizarre: none of the positivists claim law is only used in one sense. How positivists like Hart would apply the law is by seeing whether it fits their model e.g. complies with RoR etc, NOT whether a rule can be defined as a law in accordance with ordinary use of language.
  • Hart rejected Dworkin’s starting point (that law is primarily coercion- only Kelsen said this).
  • Harris asks: If a legal system can only exists once it passes a threshold of morality or “integrity”, how many legal systems in the world really are there? Dworkin doesn’t say.
  • Interpretation and Adjudication: Remember that Dworkin says the correct interpretation of the law is the one with the greatest political merit which also fits. The “political merit” is the substantive part and can be broken down into “justice”, “fairness” and “procedural due process”. Justice = right and goal of equal concern and respect for each citizen that the ideal legislator should possess. Procedural Due Process = moral requirement to abide by previously announced legislative choices i.e. don’t upset expected outcomes (what about overruling precedents? Also the “fit” requirement deals with this part- this shows the “substantive”-“formal/fit” distinction to be false since both parts are substantive. Thus, on procedural due process, the best fit IS necessarily the most substantively good). “Fairness” = what popular opinion demands.
  • Principles are propositions that describe rights, whereas policies are propositions that describe goals. Rights are principles, not policies, since it does not describe a political goal as policies do; rather it is an assumed backdrop. For example, a right has a “threshold weight” against a collective goal (Why couldn’t these just be competing policies?). Dworkin says the law’s job is to adjudicate between the rights of the parties before him, leaving collective goals/consequences i.e. policies, to the legislature. Supported by Lord Scarman in McLoughlin v O’Brian. Though in this case Lord ED denied this saying that judges have always taken policy factors into consideration when making the law.
  • Dworkin says that it is better that judicial innovation should be regarded as principle not policy because (1) it means he is deciding between the parties who has the better right, whereas judicial legislation based on policy would be a de facto retrospective piece of legislation, which is unfair for lack of possibility of compliance; and (2) if merely deciding principle it does not matter that judges may not have as good resources as parliament to assess the total impact of their judicial legislation. NB these do not show that judges DO operate by looking at principle rather than policy, as Dworkin contends, but merely that they ought to. Harris says the first (and main) argument is bad as the determination of who wins in a set of circumstances where the law runs out still has a retrospective effect, since the losing party could not have complied with the rules as they had not yet come into existence i.e. it is still unfair.


Hart The Concept of Law, Ch. 7 and Postscript:

by ,
  • Sometimes cases are indeterminate i.e. the law is “open textured” (hard cases). Obviously there must be discretion in such cases because “we are men, not gods” and therefore cannot determine the outcome perfectly in uncertain cases. All legal systems have a tension between the need for certainty and the need to leave the law open whether for fairness or for future development. The courts have a “role producing function” in uncertain cases. Rule scepticism is therefore valid in hard cases (Dworkin reject this).
  • Hart refutes (in postscript) the semantic sting argument deployed by Dworkin. He says that he never suggested all judges had one conception of what law is, merely that they share a belief in what criteria need to be fulfilled for it to be applied. He never claimed that the RoR is used to say what a law “is”.
  • Hart also says that his theory is capable of incorporating moral criteria or principles within the rule of recognition, so that he is NOT a “plain fact positivist” as Dworkin claims (For objections to Hart’s soft positivism concessions see Raz week 2 reading).
  • Hart denies that his positivism = what Dworkin terms conventionalism. Conventionalism’s point according to Dworkin is to justify coercion, whereas Hart does not claim this. Hart says that coercion is used when the law’s primary methods (promulgation of laws etc) breaks down, so that he certainly does not consider the law’s aim.
  • Hart rejects Dworkin’s claim that soft positivism is inconsistent with the positivist aim to provide certain, value-free criteria for identifying law (Dworkin is right here- see Raz week 2 notes). Hart says positivism is not minded to maintain absolute certainty but can make concessions, so that the courts can make an informed decision in hard cases.
  • Hart says the difference between rules and principles is not so profound- it is a matter of degree of conclusiveness. In Riggs v Palmer, which Dworkin often cites (man murdering his grandfather to get the will) a principle (that a man shouldn’t profit from his own wrongdoing) overcame contradictory statutory rules on wills, demonstrating how the distinction between rules and principles is not so sharp as Dworkin claims. Thus principles can be legally binding if recognised as such by RoR and Hart concedes that he was wrong not to consider principles initially. Thus he goes on to make a half-concession: That laws can include moral standards but do not have to in order to be valid.
  • Most importantly, Hart denies that positivists like himself set out to show law in its best light. They seek to provide general information about social institutions and to explain how claims concerning validity, obligations, rights, etc figure within such institutions. We need, Hart maintains, a clear understanding of these matters as a precursor to evaluative theories.
  • In fact, he says, we can make propositions about the function of law without committing ourselves as to whether these are valuable functions. Arguments for positivism are backed up by professional practice – lawyers can convey information about law without apparently committing themselves on questions of political morality – they may even describe the laws of past, foreign or unjust legal systems.