PHL271 Lecture 3 – Review of Hart/Dworkin F Sept 30, 2011
Riggs v. Palmer in Relation to Hart Dworkin Debate
Hart – Theory of Law and Theory of Adjudication
-what is law, is there a necessary connection between law and morality, questions of law, necessary connection crises
Theory of adjudication – answer questions of what the law requires when it is unclear, law does not dictate an answer, so how
should judge go about deciding
Legal Positivists – implication of correct theory of law – when no settled law exists, judge has to legislate outside of settled law
in the core
-what does existing law intend in a social context
-not dictated by law, but by what the judge thinks is best
Theory of Adjudication – how judges should decide cases of unsettled law
Core – where law truly exists
-judges are making law in the penumbra by what they think is best and must forget fiction that judges don’t make law
-nothing in common between legal positivism and the dissenting judgement
Separation thesis – no necessary connection between law and morality
Dissenting – judge only based on law, not look to moral judgements
-both judges are in the penumbra; dissenting judge might think his reason was good, but shouldn’t think the law is forcing that
decision on him
-mistake majority makes – law requires the solution because it implies moral values itself; also supposed to be choice
-assumes morality is part of the law and that he is making no judgement
-both refuse to admit they are stepping outside of the law
Hart – admit you are legislating, don’t hide behind the law; to both sides – leads to judges as automatons
Legal Positivist – tells judges to use their best judgement once out of the core
-penumbra isn’t completely beyond law, it is a choice based on bits of law
-choice is made by judge, based on what judge thinks is morally best
Dworkin
-refusal of judges to be in the penumbra supports his argument
-advocating interpretive theory – how best to understand the law
-example we should use in constructing the theory are the ones where judges disagree strongly about what the law requires
-theories of law that judges rely on becomes apparent
-hard cases are valuable because we see competing theories of law arising, and we will be able to choose the most attractive
theory by comparing the models
Criterion – political morality, ideal of that theory, helps us choose what theory has the most attractive political ideal at its
heart
-all law consists of it is the core – core consists of legal events which give the judge an answer; precedent, constitutions
-what scheme of principles best justifies choosing what is relevant to the judgement e.g. precedents
-judge has to show what principles show the law in its best moral light
-principles also answer the hard questions
-principles are valid law, as any other law; forelaw
-answer is thus fully determined by law through a process of moral arguments
-difference between interpretive theory and his idea of legal positivism; his idea – law is only what we find in the core
-what is the political principle within the law?
-law is a way of settling political disputes
-must have a transmittable content from decidable disputes to those they are currently deciding
-it if relies on moral decision, the legal conflict will arise again
-so answer must be determined in a way other than moral argument
-a theory of utilitarianism – decide all political controversies in a way that maximizes the greatest happiness of the greatest
number
-positivist; stay within the core
Interpretive – decided by which political principle behind the theory is more attractive
-Dworkin’s argument imposes a political ideal onto Hart
-requires denying Hart; hard cases – judges are in penumbra and have to legislate
-Dworkin does not think judges move beyond law, there is no penumbra
Legal Positivists – judges are always in the core – penumbra belongs to the legislative, cannot rewrite the law