Speaker 1Okay. Hi, everyone. It is Scott Shapiro, Jurisprudence Course Podcast, Episode 11. That was the Empire Strikes Back theme song, and this episode is Law as Empire Strikes Back, and what we're going to do is talk about Ronald Dworkin's positive, first his critique of legal positivism, and then his own positive proposal. I happen to think it's extremely interesting and important. I'm going to spend at least two episodes on it, and so the way I'm going to arrange this episode is, again, three parts. First part, I'm going to recap where we're going. We are going to kind of rehearse the dialectic up until now, and then in the second part, I'm going to present Dworkin's critique of theoretical disagreements, which I think is very powerful, and then finally, in part three, I will introduce the idea of constructive interpretation and what Dworkin's positive proposal is, and then in Episode 12 next week, we'll talk about. kind of in-depth how he argues for his specific doctrine of law as integrity. Okay, so let's start by recapping where we are. In some sense, I kind of screwed up the ordering. I've talked about this in previous episodes. I did the hard Dworkin debate a bit earlier than I should have, but anyway, you can watch that episode if you haven't already. But anyway, I'm going to start by recapping where we are. I'm going to start by recapping where we are. You can get a refund through customer service, but let me just go, let me present it in the order in which it should have been presented. So we started by talking about how there was this view that people had that positivism implied formalism, because formalists believe that judges should never. that judges should never use moral reasoning, look to policy when deciding cases, and it seemed as if positivists were committed to this amorality of adjudication because they believe that law depends on social facts alone. And so it would seem as though a positivist would say that judge should never rely on moral reasoning when deciding cases because the law always depends ultimately on social facts. So I'm going to start by recapping where we are. What Hart argued was that positivism actually implies anti-formalism, not formalism, but actually anti-formalism, because since the law depends on social facts alone, social facts can't ever pick out absolutely comprehensive standards of guidance. I call this the limits of the social, that is, the social acts of picking out either exemplars, precedent, or using texts which have general terms will always have associated with them areas of indeterminacy. And so therefore it would turn out that the law is necessarily indeterminate to some extent, and therefore when judges are deciding cases, they're inevitably going to be indeterminate. We'll see that judges never act as though the law is indeterminate. They never say, hey, we're now in the open texture, and I have strong discretion, as Dworkin called it, strong discretion to decide the case as I see fit, and I'm going to make new law. No, they always act like there is law. They always act like there is law to find, and they do this by looking to principles which are valid, according to Dworkin, because they are morally appropriate, and they apply those principles to decide cases which arise before them. So it's not as though the law is. So it's not as though the law is indeterminate and judges come along and decide cases by making new law. No, they always act like there is law to find. So therefore formalism, in fact, is true, and since positivism implies anti-formalism, and formalism is true, therefore positivism must be false. So this is, there's an old line that philosophers use, they say that one person's modus ponens is another person's modus tollens. The idea is modus ponens is if you got P and P, therefore Q, you can conclude Q. And modus tollens is if you have not Q and P, therefore Q, you can infer not P. Okay, and those are logically equivalent. So here, what Hart wanted to say was. He says, it's true that positivism implies anti-formalism, he's a positivist, so therefore anti-formalism must be true, whereas Dworkin takes his modus ponens and turns it into a modus tollens. He says, it's true that positivism implies anti-formalism, but since formalism is true, that is not Q, therefore not P, therefore positivism has to be false. Okay, now we saw two responses. This was the exclusive and inclusive legal positivism debate. Both of them have responses to Dworkin's view. When Dworkin says, look, judges are looking to morality to decide cases, the inclusive legal positivism says, well, that's fine, you can look to morality to decide cases, but that doesn't mean that law is not ultimately dependent on social facts. It's that social facts say that morality is relevant. That is, the rule of recognition tells judges that when the pedigreed standards run out, when the socially designated standards run out, they are to look to morality, and so therefore moral principles become part of the law by virtue of their relationship to the rule of recognition. So all Dworkin has showed is that in Anglo-American legal systems. The rule of recognition contains non-pedigreed standards of legal validity. The exclusive legal positivism says, no, no, no, no, that doesn't follow. All Dworkin has showed is that when the pedigreed standards run out, judges are under a legal obligation to look to morality, to look outside the law, but the fact that judges are required to look outside the law doesn't make the standards that are outside the law now legal standards. No. They're just under a legal obligation to apply extra legal standards, so that doesn't mean that those extra legal standards are now law. It just means that judges are under a legal obligation to apply things outside the law, so that's exclusive legal positivism because it says that moral criteria of legal validity are not acceptable, and I'll talk later in later episodes why I think exclusive legal positivism is the right view to take, but the point is that. Whether you take the exclusive or the inclusive legal positivist position, the positivist has a pretty good response to Dworkin's critique in what I call Act I of the Hart-Dworkin debate. You can be either exclusive or inclusive legal positivist. You can explain why judges look to moral principles when deciding cases. And completely consistent with the idea that positivism is the view that. legal facts ultimately depend on social facts alone. Okay. That's the way it goes. Dworkin in a, in an article called model rules too. Um, but mainly in chapter one of law's empire shows why actually the inclusive or exclusively a positivist response, um, won't really work, uh, for a new critique, which he offers, uh, which is the problem of theoretical disagreements. And I think that's the, this, the problem of theoretical disagreements, which is the most powerful objection to positivism. And I think the most powerful objection that Dworkin has, and I think it's the objection that positivists have really not responded to. I mean, they've responded to the, the previous critique in model rules one, but the problem with theoretical disagreements is extremely powerful and, um, been largely ignored, um, uh, by positivists. And so what I'm going to do in part two is I am going to present that argument as it is, uh, set out in chapter one of law's empire, and then, um, discuss why it's such a powerful argument. Um, and then, um, discuss why it's such a powerful argument. And, and then, um, discuss why it's such a powerful argument. Um, and then, um, prompt for positivism. I will be back in a bit.
Speaker 2Okay. Part two. That was Tom Petty.
Speaker 1Breakdown. And the question is, will positivism break down because of the problem of theoretical disagreements? I think I may have wanted to be a DJ because maybe I didn't want to be a legal positivist. Maybe I wanted to be a DJ. Because I really enjoy picking songs and then giving smoky intro and outros. Anyway, I've made my choices in life, and I ended up in analytical jurisprudence. So let's just go with that. Okay. So Dworkin begins by introducing the distinction between propositional law and grounds of law. And proposition of law is a statement about the law in a particular jurisdiction. It's what we would say a statement of a legal fact. So it's a proposition of law that in California, you can't drive more than 65 miles per hour on the freeway. Okay. So that's propositions of law. They can be true or false. Propositions of law are true or false by virtue of the grounds of law. The grounds of law are facts, the obtaining of which renders a proposition of law true. So you could say that propositions of law in California are true if the California legislature approves a bill which expresses that proposition by requisite majority and signed by the governor or not signed by the governor, but by supermajority, something like that. But those are the grounds of law. Okay. They're facts. When they obtain, they make propositions of law true. And when they don't obtain, they render propositions of law false. Dworkin doesn't express it in this way, but if we were talking in Hardian language, we would say the grounds of law are the criteria of legal validity. They are those. tests that a rule has to pass in order for it to be considered valid or invalid. Okay. So that would be the relationship, the grounds of law to the rules of recognition. Those grounds of law are part of the criteria of legal validity. Okay. So Dworkin says that, you know, people can disagree about whether propositions of law are true or false. And he distinguishes between two kinds of disagreements. You can say that propositions of law are true or false. And he distinguishes between you could have about the grounds of law. The first he calls empirical disagreements. An empirical disagreement is a disagreement about whether the grounds of law are satisfied in a given case. So we can ask, did Congress really enact the bill or not? So it happens lots of times that you read in the newspaper about various bills that are being debated, and you kind of can't remember whether the bill passed or didn't pass, and you say to your friend, oh, no, no, but that passed, and the person says, no, it didn't pass. And so you're just having an empirical disagreement about whether the grounds of law, or you could say it passed, but the president vetoed it or something like that. So you could have just disagreements about whether the grounds of law have obtained in a particular case. That's what Jordan calls an empirical disagreement. A theoretical disagreement is a disagreement about what the grounds of law are in a particular case. So you could say, well, no, it's not law in California that you can't drive more than 65 miles per hour because the legislature never agreed to that. And somebody can say, wait a second, no, no, no, no, but the legislature doesn't have to agree to those things. That's part of the state motor vehicle agency. And you're like, really? The agency decides on that? And your friend could say, yeah, yeah, no, the agency. You say, oh, okay. So you can disagree about whether the grounds of law have obtained in a particular case. That would be the empirical disagreement. But then you can have a theoretical disagreement. You can say, well, wait, what are the grounds of law in a particular legal system? Who, what must be the case in order for a law to be, um, authoritative or not? Okay. And that would be a theoretical disagreement. What Dworkin is going to argue is that according to positivism, all disagreements are necessarily empirical disagreements, all disagreements about the grounds of law. I'm sorry. All disagreements about propositions of law are really empirical disagreements about whether the grounds of law have obtained in a particular case. And so, you can say, well, that's a theoretical disagreement. There are never theoretical disagreements. There are never disagreements about whether a fact is a ground of law in a particular legal system. And the reason why that's going to be important is because he's going to say that there are many, many instances. In fact, it's very common for legal actors have disagreements about whether the grounds of law, whether facts are grounds of law. That is, it's very common for legal actors to have to have, to have theoretical disagreements. And if positivism can't explain the very possibility of theoretical disagreements, and they are incredibly common, then this is a big strike against positivism. So, that's what I want to, um, go through right now. This is called the problem of theoretical disagreements. It seems as if theoretical disagreements are common in the law, and yet positivism can't accept their very possibility. How, how, how, how does this work? The first thing I, I, I want to go through is that in chapter one of Law's Empire, Dworkin ascribes to positivism what he calls the plain fact view. The plain, he says, the positivists are plain, are, are, accept plain, the plain fact view of the law. So, I want to say what the plain fact, view is. And then to show you that actually what he says positivism is committed to is just false. But number three, it doesn't matter. I mean, this is a, I have to say, you know, Dworkin is, it was brilliant. I mean, just genius and unbelievably talented, incredibly important, but he almost always misrepresented his opponents, which was a real mistake, which is not only a bad thing, but it was a real mistake. And so, I want to say, I want to say, I want to say, I want to say, it's not only a bad thing to do to misrepresent your opponents, but it's also a, it's particularly bad thing to do when you don't even need to do it, when your critique even applies if you represented them correctly. So, what is the plain fact view? Well, the plain fact view has two parts to it. The first part is that the grounds of law are the facts which legal officials agree are the grounds of law. That is, the grounds of law are those facts which people accept as the grounds of law. Put another way, the ground, uh, the grounds of law according to the plain fact view are those facts that everyone agrees renders propositions of law in that jurisdiction true. Okay, so that's the first part, the first thesis of the plain fact view. Namely, grounds of law are established by consensus. And the second part of the plain fact view is that the grounds of law are matters of plain fact. That is, they are matters of historical fact. This is what in earlier discussions we would have called pedigreed facts. That is, the facts related to the institutional source or pedigree of a given rule. So we have two parts to the plain fact view. One is that the grounds of law are established by consensus. And the second is that the grounds of law are established by consensus. And the second is that the grounds are established by consensus. And the third is that the grounds of law are established by consensus. And the fourth is that the grounds of law must refer to matters of plain historical fact, matters of pedigree. Now, if you put it that way, it seems as though Tworkin is describing all positivism as exclusive legal positivism. Because exclusive legal positivists believe that the criteria of legal validity must always refer to sources of law. He's denying that inclusive legal positivism is a form of positivism. Now, I think I've mentioned this before, but virtually everyone is an inclusive legal positivist. Exclusive legal positivism is pretty much the minority. I'm an exclusive legal positivist. Joseph Raz is an exclusive legal positivist. A couple others are, but mainly inclusive legal positivism has been the dominant view. I don't know why Tworkin had to ascribe exclusive legal positivism to positivism when, in fact, it's not indeed the case. And we'll see in a second, you don't even need to be an exclusive legal positivist for this argument to apply. Okay, so the first thing is he wants to argue that positivism cannot explain for the possibility of theoretical disagreements. And he also says that positivism is exclusive legal positivism. Okay, I don't know why. Again, I don't know why he says a second, but just we can ignore it for the moment. Okay. What Tworkin wants to say is that positivism can't explain the possibility of theoretical disagreements. And theoretical disagreements are very common. So he gives numerous examples in chapter one of theoretical disagreements. Let me give you one because it's a cool case. And some of you might know, if you don't, it's, like I said, it's a cool case called TVA versus Hill, Tennessee Valley Authority versus Hill. So what happened was the Tennessee Valley Authority, they build this dam. And dam, it's almost done. They spend like $100 million building the dam. And as they're almost finished with the dam, the Congress passes the endangered species law. And they're like, okay, we're gonna get rid of this dam. And they're like, darts in and out of snails. It's not an important fish. I know some of you listeners probably are gonna write to me and say, hey, I wrote my thesis on the snail darter. The snail darter is the best fish in the world. I can't believe you said this, you monster. Anyway, snail darter is not terribly important. Anyway, the environmentalists think, okay, this is going to destroy the habitat of the snail darter. And they're like, the snail darter, the Endangered Species Act gives us a legal right to stop the dam from finishing. And so what the court has to decide is, what do you do in a case where you spent basically $100 million building this dam, it's almost done, you pass legislation right at the end, it's gonna, it's gonna affect this, this fish, nobody cares about it, it's gonna affect this. So what do you do? The court's divided. The majority, according to Chief Justice, written by Chief Justice Berger, writes that gotta shut down the dam, gotta shut down the dam because the Endangered Species Act, the text is pretty clear that if a species designated by the Secretary of the Interior is in danger, that if a species designated by the Secretary of the Interior is of, if their habitat's in danger of being destroyed by this federal project, you gotta stop. Whereas the dissent says, written by Justice Powell, it says, are you out of your mind? And you're spending hundreds, you know, millions, millions of dollars for this is just absurd. No way should you just follow the, the, the, the plain meaning of the text when it happens. It has an absolutely absurd result. So what Dworkin points out is that this is really a theoretical disagreement. It's a disagreement about what the grounds of law are in the federal system. Chief Justice Berger says that the plain text of a statute is a ground of law, even when it gives an absurd result. Except, he says, if Congress, if there, if Congress intended for you not to follow it in that case. Whereas Powell says, no, you do not, that is not a ground of law in the federal system. If the plain meaning of a text gives you a result which is absurd, you don't follow it unless Congress wanted you to follow the absurd result. Okay, so here there's a disagreement about what the grounds of law are in the, in the federal system. Powell says, basically, follow the plain text. And Powell says, no, don't follow the plain text. The disagreement is whether the plain text, the meaning of the plain text is a ground of law in the federal system. At least in cases where you get absurd policy consequences. What Dworkin points out is that this is a disagreement about what the grounds of law are. That is, they're not disagreeing about what Congress decided or what they intended. They're disagreeing about how, what the, what facts you look to in order to determine what propositions of law are true or false in the federal system. I mean, that's what the disagreement is about. Now, positivists can't explain this because for them, and here's the, here's the, here's the kicker. For them, the grounds of law are determined by, by consensus, by agreement. But if there's disagreement about what the grounds of law are, then by the terms of the debate, there's no agreement. If the positivist says F is a ground of law, if and only if there is agreement, well, let me just forget if and only if, just say if the positivist says F is a ground of law, only if there's agreement. But there's disagreement that shows that there is no agreement about F. And that means that F can't be the ground of law. That is, theoretical disagreements are self-defeating for the positivist. If somebody says F is a ground of law, and other people say, no, F isn't a ground of law, then positivism would say that the one who says that F isn't a ground of law, they have to agree. have to be right. Because by them disagreeing about whether F is a ground of law, that shows that there is no agreement about the grounds of law. And therefore, F can't be a ground of law. So, it seems as though actually disagreeing about grounds of law for positivists can't be possible. It leads to incoherence. If you say, the grounds of law are things we agree are the grounds of law, but now we're disagreeing about what the grounds of law are, that's incoherent. You can't accept both propositions. Let me see. You know, I'm gonna, I'm gonna, I'm gonna stop here. And I will, I'll do a quick recap. And then we'll see how Torkin believes we should, what the way forward is. Okay. We'll see how Torkin believes we
Speaker 2should, what the way forward is. Okay. Okay, part three.
Speaker 1That was Rolling Stone, Beast of Burden. We were just talking about Dworkin and the problem of theoretical disagreements. The basic view is that positivists can't countenance the possibility of theoretical disagreements, that is, disagreements about the grounds of law, because they think that grounds of law are determined by consensus, and disagreements imply the absence of consensus. So therefore, any disagreements about propositions of law must always be empirical disagreements about where the grounds of law have obtained, not what the grounds of law are. Now, notice. There's no way out of this by either being an exclusive or an inclusive legal positivist, because notice that both inclusive and exclusive legal positivists believe that the grounds of law, I mean, what's common ground between them is that the grounds of law are determined by consensus. The only disagreement between them involves what kinds of things there could be consensus about in order to count as grounds of law. The exclusive legal positivists, well, the inclusive legal positivists, they're inclusive. They think if there's consensus about certain facts as being grounds of law, then they're grounds of law regardless of what they are. They can be moral facts. Those are still grounds of law. And the exclusive legal positivist says, no, no, even if there's consensus about moral facts, that's not part of the rule of recognition. That does not make it a ground of law. But notice again that what's common between them is that agreement determines what the grounds of law are in a particular legal system, and so therefore they can't countenance the very idea of disagreement. Now, you can imagine two other ways that a positivist might try to get out of this problem. One is they can say that, okay, the fact that theoretical disagreements are incoherent under the positivist perspective doesn't mean that positivism is wrong. It just means that legal actors are incoherent. Okay, that they're confused. I mean, they think that theoretical disagreements are possible. They're just wrong about that. That is, they're incoherent to think that. And the positivism could just say that sometimes people are incoherent. The reason why I don't think that works, I don't think this is a way that positivists can get out of the problem of theoretical disagreements, is that this is not like a small disagreement. This is not like one of those tiny things that people can be confused with. I mean, for positivists, this is the thing. This is the fundamental feature of law, which is that what law is, is determined by consensus among legal actors. I don't know how you can, like, say that a social practice is a certain way, and yet the fundamental way in which the practice works, everyone who's engaged in the practice is mistaken about. That is, there's rationality. That is, there's radical error about the most important thing about the practice. That seems to be a violation of any norm of charitable interpretation. So I don't think the incoherence response is going to work. I mean, you can make the insincerity argument. You can say, look, when actors are disagreeing among themselves, they are doing what legal actors do. That is, they're arguing their position. And we know that legal actors often say things that they don't believe in. Either they're arguing for their client or they're arguing for their political position. So it's not really that surprising that legal actors might say things that they don't believe in that involve conceptual mistakes. Right. Because they're just, they're being legal actors. They're being lawyers. They're just trying to get their own, they're trying to win. They're trying to win either for the snail darter or for the Tennessee Valley Authority or they're trying to win for the pro-choice side or the pro-life side or whatever. Now, the reason why I don't think that's going to work either is that, of course, we all know that legal actors, we all know that legal actors are insincere and that they often argue about interpretive methodology and about the grounds of law because they want their own side to win. I mean, that's not, that's, we all know that that happens. I don't think, though, that anybody, we think that just simply by virtue of the fact that they're engaged in theoretical disagreements. That is, let's say if you, let's just take originalism for the moment. So the people who argue for originalism, who think that the Constitution is best interpreted or properly interpreted according to the original public meaning of the Constitution, that they think the original public meaning is the ground, is ground of law for constitutional law, you might think that they're being insincere because they're, they want to read the Constitution very narrowly and give certain people less rights than those people, are claiming for themselves. Um, you might, you might, you might think that, but I don't think anybody thinks that originalism is, the originalists are being insincere precisely by arguing about the grounds of law. Because nobody thinks, oh, you're making a controversial claim, therefore, by virtue of the fact that you're making a controversial claim, therefore, you're being insincere. No, I think people think is that it's not the, the distinction, it's the disagreement itself that, that, that, um, makes us think that they're being insincere. It's the fact that the position that they're arguing leads to consequences that they want, okay? So I, I guess I, I just don't buy this idea that the positivists can get out by saying that legal actors are being insincere by having theoretical disagreements, because I don't think it's the fact of having the theoretical disagreement is what we think is insincere. I think we think what's insincere is the fact that, you know, the fact that they're arguing for a specific position, okay? Anyway, what, having, whether you accept it, whether you don't accept it, um, um, I personally accept it. I think that, um, positivists ought to take the problem of theoretical disagreements very seriously. I have in my own work. Pa, uh, Dworkin's, um, uh, arguments in Law's Empire and beyond, uh, really depend on the fact that theoretical disagreements are, um, a feature of legal practice or very common. And he wants to give an explanation for how theoretical disagreements are possible. And of course, what he's gonna do is he's gonna argue ultimately that, um, the legal facts ultimately depend not on social facts and consensus, but rather on moral facts. And so when people are engaging in these legal disagreements, they're really engaging in moral disagreements. Let me, um, motivate the argument that Dworkin's gonna make by using what I call his literary analogy. And the literary analogy goes as follows. What Dworkin points out is that theoretical disagreements are not unique to law. You see it in other areas of life. He takes the, um, uh, case of literary interpretation. So you see there are different schools of literary criticism. Some are, um, formalists. Some are Marxists. Some are, um, new criticism. Some are, um, uh, modernists. So, basically, there's lots of different theories of literary criticism. Different theories about what do you look to? What are the grounds of literary interpretation? Um, like, for example, do you look at the intention of the author? Or do you look at formal features of the text? Or do you look at the emancipatory potential of the text? Um, these are disagreements about how to interpret legal texts. What facts count. And when literary critics are having disagreements about, like, what the right way to interpret Hamlet is, and if someone says, "No, the right way to do it is psychoanalytic," and the other one's saying, "No, no, no, it's, this is what Shakespeare thought he was doing, so therefore this is the right way to interpret, um, Hamlet," these are theoretical disagreements, and it's wrong to think that they're empirical disagreements. Everyone can agree about what Shakespeare himself thought he was doing when he wrote Hamlet, but they could still disagree about what Hamlet means. Now, how do we explain this disagreement among literary criticism? And this is what Dworkin calls constructive interpretation. What literary critics are doing is at bottom, they're having a disagreement about what makes literature valuable and what kind of methodology would make literature the most valuable thing it could be, given that it's literature. So just to use the quote, but this is what constructive interpretation is. Constructive interpretation is a way of describing the fact that literature is a material being. The second purpose is goodwill and peace on earth. Now, rank commercialism fits better than goodwill and peace on earth because it seems as if the practice of Christmas is more in line with rank commercialism than it is about peace on earth and goodwill towards men. Now, peace on earth, goodwill, and towards men also fits the way in which we celebrate Christmas, but it seems as if rank commercialism fits better than the more lofty goal of goodwill and peace on earth. So that's fit. So it seems as if when you talk about the level of fit, rank commercialism wins. But you also need justification. You also have to compare which of the purposes is more morally justified. And it seems as if, you know, goodwill and peace on earth is more morally justified than rank commercialism. So it seems as if we have a balance here. Rank commercialism fits better with the practice of Christmas, but goodwill and peace on earth is more justified. So what we have to do is we have to balance the two. Okay? Now, one might say that the best interpretation of Christmas is goodwill and peace on earth because even though goodwill and peace on earth doesn't fit as well as rank commercialism, it is so much more justified than rank commercialism that when we combine the two, Christmas comes out the better. Okay? When we see it as goodwill and peace on earth. So that's the way in which we're supposed to kind of engage in constructive interpretation. We try to figure out which purposes fit, that is, which ones recommend behavior that actually exists, and then which purposes are best justified. And then we try to pick the purpose. And then we try to pick the purpose which has the best mixture of fit and justification. Now, what Dworkin's going to do is he's going to say that the disagreements that we find about the grounds of law in legal systems are really disagreements about what moral purposes best fit and justify legal practice. And he's going to go through, he's going to make detailed arguments, and he's going to come out with a story. And he's going to come out with a story. And he's going to come out with a certain view about what the grounds of law are in a particular legal system. And he'll call that law's integrity. And we're going to talk about that next week. We'll do a rehash of what we talked about. And then I'll go through Dworkin's arguments, and we'll evaluate them. And let me take us out with a little bit more. And we'll talk
Speaker 2about that next week. I'm 19 years old.
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