Speaker 1I really need you tonight Forever's gonna start tonight Forever's gonna start tonight All the time I was falling in love Now I'm only falling apart
Speaker 2There's nothing I can do A total eclipse of the heart
Speaker 3Okay, hi, how is everyone doing?
Speaker 4This is episode 7, I'm Scott Shapiro of the Jurisprudence Course Podcast Today we are going to talk about Hart's solution to the chicken-egg puzzle And his response to Hume's challenge and to see whether that works Spoiler alert, it doesn't It doesn't It's kind of sad that Philosophy is all about killing the father This big eatable complex You have Austin And then we talk about his theory And then Hart comes along and he beats up on Austin Beats him to a pulp We talk about how great Hart's theory is And then we talk about how great Hart's theory is And then we talk about how great Hart's theory is or hard to get. interpretation here although i think it's um it's it's there it just doesn't put it in these these terms i i think i think heart would have opted for what nowadays uh meta-ethicists would call expressivism so the idea here would be that there are no normative facts in the world there are just descriptive facts but we can take different attitudes towards descriptive facts we can either take a descriptive attitude a theoretical engagement with a with descriptive facts or we can take a normative practical attitude towards those descriptive facts and depending on how we do that we'll be able to derive different forms of judgment let me give you an example okay so let's say somebody has coronavirus somebody has covid now you could you could describe that in one of two ways you can say this person has a infectious biological agent and if you get near that person you can catch the virus and perhaps get sick so you can you can you and you can talk about how infectious this person is and how many people they are likely to affect so this is kind of an epidemiological approach to this person's having this pathogen but you can also take a normative attitude towards the fact that somebody has coronavirus that is you can you can you can say that person is to be avoided stay away from that person right so the to be avoidedness is not some additional fact to the fact that they're infectious it's just a different attitude you're taking to the fact of their being contagious okay so we distinguish between facts and judgments so there's only one fact there person has this virus they're they're contagious but we can either have a theoretical judgment about them that is they're contagious or we can have a normative attitude towards them that is they are to be avoided okay so what's good about this way of thinking is that it doesn't it's parsimonious you're not multiplying entities without necessity she's saying there's only one kind of fact in the world but we can just engage with that one fact in different ways either theoretically by studying it or normatively by we can just engage with that one fact in different ways either theoretically by studying it or normatively but we can just engage with that one fact in different ways either theoretically by studying it or normatively affecting how we respond to people who have that who are who have that condition now i think this is what hart thought about the rule of recognition it's not like they're so he thought that all laws ultimately ultimately depends on social facts alone and so something as law if you can trace it's you can trace it it's um origin to some social practice the rule of recognition but that social practice can it can be engaged with either descriptively that is by saying hey these people act in a certain way and they criticize each other when there's deviations from acting in that way or one can have one can approach it normatively you say hey certain people acting a certain way and that practice ought to continue and if i'm a legal official i can engage with it by taking the internal point of view towards it so the when i when i said that you can address the social practice of rule recognition either descriptively theoretically or normatively the way hart would have put it i think is you could have either you could take the external point of view towards the practice and just describe it this is what people do or you can take the internal point of view towards it that is you can take that as a to be followedness that is you commit yourself to taking that pattern of behavior as a reason for action you can engage with something scientific externally or i will say legally so this is how the judge would reason about the social practice the judge because the judge is a judge and takes the internal point of view towards the practice what the judge is doing is saying you know there's a social fact of a practice and i'm going to take the internal point of view towards the practice and i'm going to take the internal point of view towards it and that's normative judgment and from that normative judgment i'm going to derive certain other normative judgments about what duties i have in particular cases so i'm not deriving an ought from an is by taking myself to have certain duties legal duties because of a certain social practice what i'm doing is i'm deriving a normative judgment about what i should do and what i shouldn't do and what i shouldn't do and what i shouldn't do and what i should do now from my normative judgment about taking the internal point of view towards the practice so i'm actually deriving an ought from an ought and you say but where's the there's just social facts there and harvard said yeah yeah but there are no normative facts ever all there are different ways of responding to social facts and the law when you when you're engaged in legal practice you're taking the social practice of rule recognition as being binding on you and so what you're doing is you are deriving an ought from your general internal point of view of approaching that social practice from the perspective of oughtness okay so basically i mean it's really neat i think you're taking the social practice of rule recognition as being binding on you and so what solution to the to the chicken egg puzzle and hume's challenge say you know social rules are social practices you don't need authority to make them and you don't need normative facts in order to be able to derive legal obligations and legal duties from those social facts all you need is to take a normative attitude the internal point of view and that way we can see how all law ultimately depends on social facts alone because when you are engaged in legal practice you are taking the normative attitude towards these social facts okay i hope that's somewhat clear what i'm going to do i'm going to take a break break now um uh and i'm going to pick up on whether heart was right to say that social rules are social practices and then in part three i will talk about whether heart was right to say that social rules are social practices and then in part two i will talk about whether heart was right to think that um the proper way to respond to hume's challenges by saying that there are these multiple ways of engaging with social facts okay i will see you in a bit
Speaker 1was in another lifetime one
Speaker 2of toil and blood when blackness was a virtue the road was full of mud i came in from the wilderness a creature void of form come in she said i'll give you shelter from the star
Speaker 4okay um appropriate song for sheltering in place um i hope everyone out there is is safe and healthy um writing out this um horrible pandemic um okay let's talk about heart's solution to the chicken egg puzzle was heart right to say that social rules were social practices now i'm bringing it up now Um, because the answer is no, uh, if it was right, I wouldn't be talking. talking about it. Why? Well, first thing to notice is it just seems like what Gilbert Ryle used to call a category mistake. This is a famous Gilbert Ryle example from the concept of mind. He'd say, you know, somebody's showing you around the university and they say, you know, here's the, here's the dormitory, here's the library, here are the classrooms, here's the gym. And the other person says, yes, yes, yes, yes. But where's the university? Said, but no, no, you don't understand. This is, that's what the university just is these things. Well, no, no, I don't understand. But like, I know you said, here's the gymnasium, here are the classrooms, the library, but I want to, I want to see the university. So the person who's saying, I want to see the university is making a category mistake. The person who's saying, I want to see the university is making a category mistake. It doesn't realize that the university just is the collection of these things. And it seems like Hart's making a category mistake too, by saying that social rules are social practices. Why? Well, rules seem to be abstract. They seem to be abstract entities. Whereas practices are concrete particulars. One way to see this, is that, you know, it seems as if rules have infinite domains. So if you wanted to describe the taking off your hat when you go into church, you would say, if you were being formal about it, you'd say for all X, if X is walking into a church and X is an adult, then X should take off their hat. So I'd say it's like for all X, it seems as if there's a kind of infinite domain there. They're just, they're finite entities. You know, there's only been examples of that person taking off their hat, that person taking off their hat, that person taking off their hat, that person not taking off their hat, and other people saying, hey, dude, take off your hat. So it seems as though rules can't be social practices because they're occupied different metaphysical realms. Now, one of the things, one of the things that Hart is kind of grappling with is he's trying to respond to what's sometimes called Scandinavian realism, Scandinavian realism was kind of, which was, um, uh, pounded by philosophers such as Alf Ross and Alex Hagerstrom were very skeptical about rules. And cause they were like, where's the rule? Show it to me. I don't see the rule. And they were, um, they were realists in the sense that they wanted to say that rules are just predictions about what people will do. And Hart thought that that was a mistake. Rules aren't just predictions about what people do. They have this internal aspect. Um, but Hart in, in, in his attempt to make rules not seem metaphysically weird, he said he identified the rule with the, in his attempt to make rules not seem metaphysically weird, he said he identified the rule with the the rule with the, but it seems as if you can do that because rules do seem to be abstract. It is a mistake to, to, to say, where's the rule. Um, you can't say where's the rule much as like, you can't say where's the game or where's the poem. You can give particular instances of it, um, or different formulations of it, but you, you, it's an abstract entity, like saying like, where's the number three. You can show that you can point to the a numeral three, but you can't point to the number three. Okay. Now one response to this, um, you might give, you say, well, no, when he said that rules are social practices, he didn't, he maybe Hart should have, shouldn't have said that he shouldn't have identified the rule with the practice. He would, he should have said, said was the social rules are generated from social practices. So they supervene on them. They're created by them. Rules are created by social practices. They go away when the social practices are not there anymore. But they're not to be identified with them. The response that I'm imagining is something like what non-reductive materialists would say about the mind. They would say, you know, the mind is not the brain, but the mind is generated by the brain. Mental states are generated by brain states, even though mental states aren't brain states. Now, can Hart say this? Because if he were to say this, we'd still be able to solve the chicken-egg puzzle by saying, you know, social rules are not social practices, but they're created by social practices. Unfortunately. Unfortunately, that doesn't work either because it's kind of, it's not true that social rules are created by social practices. Let me give you an example. So, before it became a rule that people were supposed to wear their face masks when they left the house, everyone in our house would wear a face mask when we left the house. Just because none of us wanted to catch COVID. We didn't have a rule that said you got to wear your face mask when you leave the house. Just everyone did it because that was just the rational thing to do. And if I saw, you know, my kids or my wife, you know, leaving the house or going into a supermarket without their face masks, I'd say, hey, put on your face mask. And not because there's a rule to put on your face. Put on your face. Put on your face mask when you go out or go into a supermarket is just because none of us want to catch the, the, the illness. And so it seems as if we, at least in our house, had and still have a social practice of wearing face masks when we leave the house. But there was no rule either in our house or in the community where face masks, there is one now. It was created by, I don't know. Who was exactly created by the, the, the, the mayor with the city council or the governor, somebody, somebody made it. I don't know who did it. But before that we had a social practice, but there was no social rule. Here's another rule. You're, you're not supposed to take your laptop into the shower. Now, if somebody in our house took their laptop into the shower. You're not supposed to take your laptop into the shower. I just said then. So let me rephrase it. Okay. It's not even true that social practices give rise to social rules because we can have social practices that don't give rise to social rules. Like don't bring your laptop into the shower and don't leave the house without your face mask. Okay. Now it's true that some social practices give rise to social rules, but you can't just say, social practices give rise to social rules. And so therefore we've solved the chicken egg puzzle because we want to know what kinds of social practices give rise to social rules. And then we'd want to know whether the social practice of rule recognition is a kind of social practice which gives rise to a social rule. Okay. Now some positivists try to provide. An answer for Hart because it was kind of recognized that there were social practices that didn't give rise to social rules. So it wasn't clear that Hart's theory of law identifying the rule of recognition with the social practice was adequate to give a positivistic response to the chicken egg puzzle puzzle because not all social practices give rise to social rules. They said, no, there are certain kinds of, social practices that give rise to social rules. I'm going to describe what they are. The P these later positive has said, and you know what? The rule of recognition is that kind of social practice. Okay. And let me give you, let me, let me give you an example of a social practice that gives rise to social. rules, and then the argument why the rule of recognition is that kind of social practice or is generated by that kind of social practice. And these are what philosophers call coordination conventions. What is a coordination convention? A coordination convention is a recurring solution to a coordination problem. What is a coordination problem? A coordination problem is a problem whereby the players strictly prefer coordinating on some solution on the condition that other people also follow that solution. So an example would be should I drive on the left side of the road or the right side of the road? Now if there's no convention about what to do, left side or right side, drivers care that everyone pick the same side. If it's the left, they want to drive on the left. If everyone picks the right, they want to drive on the right. Now we drive on the right in the United States, so we would we would kind of prefer that people drive on the right over driving on the left, but if everyone else drove on the left, we would prefer to drive on the left. Okay? So the idea is that there's this preference for conformity above all, and there's an arbitrariness to it. We don't we care much less about any particular solution than we care that we all follow the same solution. So the idea that some people had, and so conventions, coordination conventions are solutions to coordination problems. So if there's a practice of driving on the left side, well then, the convention is to drive on the left side. And we can then say, well, there's a rule to drive on the left side. And if there's a practice to drive on the right side, then we can say there's a rule to drive on the right side, because that's the convention for tipping. You may say, well, how much should I tip the waitstaff? You can say, what's the convention here? Is it 10%? Is it 15%? Is it 20%? And you say, well, that's what people around here tip 20%. That is a solution to a coordination problem. They've picked 20% as being, I think, the right way of expressing your gratitude and remuneration towards the waitstaff. And the fact that everyone acts that way gives you a reason to act that way. So coordination conventions are social practices which give rise to social rules. And the idea that positivists wanted to give for heart was to say that whether you should follow one kind of rule of recognition versus another. versus another is a coordination problem. We care to follow the same sets of rules and the same sets of legal authorities. If everyone followed the United States Constitution, we want to follow the United States Constitution in the United States. But if everyone in the United States followed the French Constitution, then we'd want to follow the French Constitution. Now, it just so happens that everyone in the United States follows the United States Constitution, which makes it the convention on this way of thinking to follow the United States Constitution, the practice of following the United States Constitution, thereby making it the case that that's what the rule is. And so here what we have is a response to the problem we noted earlier about hearts, which is that the rule of recognition is the key solution to the chicken egg puzzle. We said, "Wait a second, not all social practices generate social rules. How do we know that the rule of recognition is generated by a social practice of the right sort?" And these positivists responded by saying, "Well, you know what, social practices, which are our coordination conventions, they give rise to social rules." And the choice of a rule of recognition is, I think, the most important part of what we're trying to do. Is a solution to coordination problem. It's a coordination convention. Coordination conventions are social practices which give rise to social rules. So therefore, the rule of recognition is a rule which is generated by a social practice. Okay, so I hope you followed that so far. Is that correct? No. Let me, let me, let me try to get this right. Is that correct? No. try to give you two reasons to think that thinking of the rule of recognition as being a solution to a coronation problem is just wrong. Okay. The first one is, is that when you, you, you, you follow a coronation convention because other people are following the coronation convention, you drive on the left side because other people driving on the left side, you drive on the right side because other people driving on the right side. Is it true that officials in the United States are following the United States constitution because other officials are following it? Well, they might, they may not, but they might not. They might do it because they think it's the most awesomest constitution. Or of course the framers were geniuses. Or because, um, they made an oath to follow the United States constitution or because they're just trying to pick up their paycheck. There's no reason to assume that what judges, the reason why judges are following the rule of recognition is because it's a solution to coronation problem because other people are doing it. They could have, lots of reasons for doing it. In fact, it seems kind of stupid to think that you're following the United States constitution because everyone else is doing it. It's not like driving on the left side of the road versus driving on the right side of the road. It doesn't seem arbitrary. You follow your constitution because you have certain kind of political connection to it. You like it, you respect it. Um, you think it, um, is normative in the sense that you're following the normative commitments of, of the, of the, of the United States constitution, you're following the normative commitments of, of the United States constitution. You're following the normative commitments of, of the United States constitution. You're following the normative commitments which we're imputing to judges, but we should understand that judges could have lots of reasons for doing as they do, and a theory of law shouldn't insist that judges are motivated for any particular reason whatsoever. There's another reason why thinking of the rule of recognition is not a coronation convention, but frankly, I'm bored of this subject. It's just not going to work. The rule of recognition is not a solution to coronation problem. I think it's not a good way to look at it. I'm just going to end part two right now and pick up part three and talk about Hart's solution, a purported solution to Hume's challenge. Be back in a sec.
Speaker 1Don't go for second best, baby. Put your love to the test. You know you know you've got to make him express how he feels. And baby, man, you know your love is real.
Speaker 5Long stem closes all the way to your heart, but he needs to start with your heart.
Speaker 4Okay, part three, episode seven. Let's wrap this up. Let's wrap this thing up. But before we do that, as promised, my famous roast chicken recipe is a recipe that we use every time that we do chicken, roast chicken. Now, it's not exactly my recipe. It's actually Alice Waters' recipe. So when I said it was my recipe, that might have been an exaggeration. It might have actually been a huge lie. But I'm making good on it. So this is what you do. do. Take your chick. get a chicken okay and and spatchcock it meaning take out the back um you can have your butcher do it or you or you could just like take out the back of the chicken and save it tip the wings also and save the um the uh the gizzard and stuff for stock um because that that the you can't eat the back and you can't eat the tips of the wings um and it's good for stock and you can throw in some vegetables and you and make a risotto the next day um this is the spice rub to put on the chicken so when you take out the back then flatten out the chicken okay and it i find it just it the skin is crispier um and it's um uh cooks faster so for the spice rub take a teaspoon of fennel seed and and put it in a in a um in a mortar and pestle and grind it and put in um about half a teaspoon of um of peppercorns and grind that too uh one and a half teaspoons of of uh kosher salt um and then about a quarter teaspoon of cayenne peppers although what i do is i i um and then i put in some time too so what i do is i i grind the the fennel seed and the pepper and then i put in the salt and time and then i kind of just shake the cayenne pepper on top of the chicken which is good um because it's pretty because the red red flakes um on the pale skin looks kind of pretty um and i do it on both sides and i put it in for the oven for about 40 minutes 45 minutes on 425 and it turns out really good so i i i hope i hope you like it um if you get anything out of this uh podcast um at least the uh this recipe um uh you'll you'll have not wasted your time okay so let's talk about um heart's expressivism so remember for heart the idea is that when we talk about legal facts you know legal facts are just social facts but where we take a particular normative attitude towards those social facts which you call the internal point of view now recall from last episode of the episode before that you can take the internal point of view for any reason whatsoever you just have to be committed to those social facts um in order to take the internal point of view and so when you're expressing yourself by saying you're legally obligated to act in a certain way what you're doing is you're expressing your the internal point of view towards um those social facts so if you're if you say well you know you're legally obligated now to wear your face mask what you're doing is you're taking the internal point of view towards the practice of uh recognizing certain rules which has certain characteristics namely that they were um uh approved by the governor or the mayor and the city council or whoever did it but what you're doing is you're expressing the internal point of view towards certain social facts okay and what's good about not thinking the internal point of view is a moral point of view although it's possible you take the internal point of view for the moral point of view but you could do it just because what you're trying to do is you're trying to you know advance your career or take home your paycheck or for whatever reason the the what's good about that um is that hearts not assuming that um officials or whoever engages in legal reasoning has to have certain kinds of motivation towards the law they can have any kind of motivation towards being committed to following the law um and so what heart wants to do is be ecumenical as possible okay unfortunately this does cause um this ecumenicism and this expressivism towards um legal obligations and the rule of recognition causes certain problems which are really fatal i think to the view and here here here here are two problems the first problem is let's say the bad man let's say yeah the bad man um only follows the law because he doesn't want to get punished all right so he thinks well what what is the law in this jurisdiction and um will i get punished for it so what the bad man is doing is he's engaging in legal reasoning he's trying to figure out what the law is so that he can avoid breaking it because he doesn't want to get punished but the bad man doesn't take the internal point of view towards the law he's the bad man he doesn't think he's supposed to follow the law and he only cares about the law because he doesn't want to get punished so it seems as if when the bad man says you know i'm not gonna do that because i'm legally prohibited from doing that he's not taking the internal point of view towards the law he's doing the opposite but he's engaged in legal reasoning the problem seems to be is that you can have you don't have to be committed to the law in order to figure out what the law is and so when you say oh i mean like let's let's let's say you're uh you're uh a law student taking uh uh taking a final and you're trying to fit and you get a final and you're trying to get a final and you get a fact pattern and he's trying to figure out what's the law say about this fact pattern you don't have to be taking the internal point of view towards the law you just want to pass your the test and but you're still engaged in legal reasoning that's how you pass the test so it seems like you can engage in legal reasoning and not take the internal point of view towards the law so hart's solution to hume's challenge by saying that when you're engaged in legal reasoning you're taking the internal point of view towards certain social facts doesn't seem to be right because you can engage in legal reasoning even if you don't take the internal point of view towards those social facts so that doesn't work here's another problem remember he said you can have any reason for adopting the internal point of view even selfish reasons like you just want to pick up your paycheck so now imagine the judge says to the defendant oh you know you're going to go to jail because you broke the law and so what if the defendant says wait a second judge when you say i broke the law you're expressing the internal point of view towards the rule of recognition but your commitment to the law just is that you want to pick up your paycheck so how can i be punished for doing something where the very commitment that you're expressing doesn't apply to me that is the defendant saying you're saying i did something wrong but the only reason why you're saying i did something wrong is because you want to pick up your paycheck how does you're wanting to pick up your paycheck translate into me doing anything wrong now hart was kind of aware of this problem the problem is if you want to say that to engage in legal reasoning is to express the internal point of view and you think you can have selfish reasons for adopting the internal point of view then when the judge criticizes the defendant the judge is criticizing the defendant for reading the law and the judge is criticizing the defendant for reading the law the judge is criticizing the defendant for reading the law and the judge is criticizing the defendant for reading the law right how does the judges wanting to pick up their paycheck have anything to say about what the defendant was supposed to do now hart's response to that was to say that when the judge says you're legally obligated let's say to pay your taxes and you didn't what the word legally does in this case is it is it's an expression of discretion of what the judge is allowed to do to the defendant. So to say that the defendant is legally obligated to pay their taxes is to say that the judge is permitted to punish the defendant if they don't pay their taxes. It's a statement about how the judge responds to the defendant rather than what the reasons the defendant has. But that seems like Hart is making the same mistake that he accused Kelson of making. Remember, Kelson had said that all laws are really duty-imposing on judges to impose sanctions, and Hart said, Kelson, the law is not about judges and legal officials. In the main, it's about what citizens are supposed to do. They're supposed to guide the conduct of citizens. But Hart's making the same mistake. Hart's saying to say that the defendant is legally obligated to pay their taxes is to say that the judge is allowed to punish the defendant if he doesn't pay their taxes. But that's to make statements of legal obligation be about the judge rather than the defendant. And that's whack, right? When you say you did something wrong, defendant, because you didn't pay your taxes, it seems like you're saying something about what the defendant was supposed to do, not about what you, the judge, is allowed to do to the defendant. In fact, it seems like the judge is allowed to do something to the defendant because the defendant didn't do something that they were supposed to do. But that's not explainable under Hart's theory. Anyway, I hope this was understandable. Just to recap, we said that Hart tried to solve the chicken-egg problem by associating social rules with social practices, and Humes challenged by saying that to say that you're legally obligated to act in a certain way is to express the internal point of view towards certain social facts so that there don't have to be certain special normative facts out there, just a normative orientation towards social facts. And we said that Hart's solution to the chicken-egg puzzle didn't work because, first of all, social rules aren't social practices. They belong to different metaphysical categories. And so, categories. Number two, not all social rules are generated from social practices. Lots of social practices don't generate social rules. And the kinds of social practices that do generate social rules that positivists have picked up on, namely coordination conventions, seem to be the wrong description of the social practice of rule recognition. As for Hart's solution to Hume's challenge, it seems as if Hart was wrong to say that to engage in legal reasoning is to engage in and to express the internal point of view towards the law, because people who, like the bad man, or the anarchist, or the law student, or somebody who's apathetic, they can engage in legal reasoning without actually taking the internal point of view, number one. And number two is, if you can take the internal point of view for any reason whatsoever, it seems very hard to see how you can use the law to criticize people if the reasons that you're taking towards the law are purely self-regarding. Anyway, I don't think Hart's particular solutions work, but let me just step in. Let me step back for a second just to say that I think Hart was right to say that the law rests on rules, and those rules have to be understood in terms of certain types of normative commitments. And that to say that you're legally obligated to act in a certain way is to express your commitments. It's just not clear what those commitments are and how when you say you're legally obligated, you're actually expressing those commitments. I think he's right to, as we say in philosophy, he's in the neighborhood. His solution is not right, but it's near right. It's in the same ballpark as the right solution. So what we're going to do is, next week, next episode, we'll pick up on what I think the right solution is to these problems by talking about the planning theory, and then we'll talk about the Hart-Dworkin debate, and we'll move on from there. But anyway, please stay safe and see you next time. Take care. Bye-bye. Wait, let me take us out with some.
Speaker 3Damn, my phone is jamming. Oh, there we go. Sorry about this. Oh, right, I have to turn them.
Speaker 5Because I got something to
Speaker 1say about it, and it goes something like this. Don't go for second best, say best. Put your lover to the test.
Speaker 5You know, you know you've got to make him express how he feels. And baby, then you know your love is real. You don't need a diamond ring or 18 carat gold. Ticket, but I'm as blue as a boy can be. Walking in Memphis, just walking with my feet 10 feet off a beam. Walking in Memphis, but do I really feel the way I feel?
Speaker 4Hi, everyone. It's Scott Shapiro, and this is episode eight of the Jurisprudence Course podcast. Today, we're going to be doing the Hart-Dworkin debate, and in honor of that, I played Walking in Memphis, Dworkin in Memphis. This was suggested to me by Jeremy Robson on Twitter. I just want to say I fucking hate this song. I have always hated Walking in Memphis, but it is kind of funny, Dworkin in Memphis. Also, because Dworkin was such a Yankee, he would always talk like this. And so the idea of him walking in Memphis is kind of funny. What I want to do today is I'd like to go through at least the first act of the Hart-Dworkin debate, and that'll become clear in later episodes. But what I'd like to do is talk about the model of rules, which was Dworkin's kind of main critique against Hart, and try to explain what he was objecting to in Hart's theory, and why it matters. I think a lot of people have this sense when they read the model of rules and think about the Hart-Dworkin debate, is they can't quite figure out why it's even a debate. It seems like Dworkin mischaracterizes Hart's position all the time, and it seems like they're talking past each other. And what I want to do, in this episode, is try to show that there really is a debate, and it's very important. And then I'll try to show how some disagreements that positivists have had among themselves, so-called the disagreement between exclusive and inclusive legal positivism, really emerge from different ways of responding to Dworkin's challenge in the model of rules. Okay, so part one will be laying out, like, the first part of Dworkin's critique, and part two will pick up with the second half of the article, the model of rules. And then part three will be a discussion of how positivists have tried to respond to Hart's, to Dworkin's critique. Okay, so let us start. The first thing I want you all to notice, I do this when I'm teaching a class, I begin by looking at the article itself, the model of rules, in which I posted a link on the on the Google page, which is in my Twitter bio, so you can look at it yourself. But the article, called the model of rules, is, or sometimes, I think it was reprinted as, is the law just a model of rules? The title, the subtitle, begins embarrassing questions. And what, and I always ask students, what do you think Dworkin is referring to when he talks about embarrassing questions? And what he's, what he's alluding to is the very beginning of, you know, the, you know, of Hart's concept, a concept of law. In chapter one of the concept of law, Hart begins persistent questions, talking about, the question is, why is it that jurisprudence is concerned with the question, what is law? And what Dworkin wants to argue is that Hart really didn't manage to answer the question, what is law? Um, so it should embarrass us that there are features of legal practice that legal philosophers haven't actually been able to respond to. Dworkin argues, I think, quite correctly, that the reason why we're interested in the question, what is law, is because we want to know what our legal obligations are. If something isn't law, then we may not have an obligation to listen to it. If something is the law, and we think there's an obligation to obey the law, then we will have an obligation. So the question, what is law, has very important practical implications, Dworkin is arguing, and it's embarrassing that philosophers haven't given an adequate account of it. What Dworkin does is he sets out his own view somewhat indirectly by critiquing what he takes to be Hart's view. He calls it the positivist view, and he says that Hart represents the best version of the positivist view. And he lays out three theses. So what I want to do is I want to go through two of the theses very carefully, but let me just summarize what the three theses of positivism that Dworkin takes to be constitutive of the positivist program, and then he's going to attack it. Okay? So just a summary is that every legal system, the first thesis is that every legal system has a master. Test, which distinguishes legal norms by their pedigree. That is by the way that they were created rather than what they are. That will, this is what we'll, we'll say over and over again in this episode that, um, uh, the pedigree of a norm is it's, it's, it's institutional source. Was it enacted by the, by Congress or by an administrative agency or by the chief sitting under a palm tree somewhere? That's its pedigree. Its content is, is it good rule or not? And what Dworkin is saying is that the first thesis of positivism is that every legal system has a master test, which distinguishes law from non-law based on its pedigree. That is its manner of creation rather than its content. Okay. The second one is that when the rules run out, judges exercise discretion. And the third is that there can be no legal obligations in the absence of legal rule. Okay. So those are the three theses. And let me, I want to go through them carefully because this is actually very important to try to see what Dworkin is attacking when he is attacking positivism and what he calls the model of rules, because he's going to take positivism to be the model of rules. And he's going to argue that the law contains more than just rules, and so therefore positivism can't be correct. So let me go through it carefully. This is a quote from the article. Um, there's the first thesis. The law of any community can be identified and distinguished by specific criteria, by tests having to do not with their content, but with their pedigree or the manner in which they were adopted or developed. Okay. Now, just notice that the Dworkin is kind of alluding to the two hearts doctrine of the rule of recognition. He doesn't use that, that term. Um, he talks about a test, a community's test for distinguishing law from non-law, but what he's referring to is the rule of recognition. Um, two things to note. It's really odd, uh, in Dworkin's, characterization of the rule of recognition that he doesn't make reference to the one feature that Hart insisted on, which was that the rule of recognition be a social rule. That is Dworkin's is saying that the rule of recognition has to be a master test in the community, but he doesn't, uh, specify that that master test has to be a social rule. That is, it has to be practiced from the internal point of view. And the second thing, which is odd about Dworkin's characterization, is that he says that the rule of recognition has to identify rules based on their pedigree, their manner of creation, their institutional source, rather than their content. Now, if you've read Hart and you heard me, and you've listened to the other episodes, um, you'll notice that I never said anything. Uh, Hart never said anything about, uh, the pedigree of rules being, uh, part of the rule of recognition or that the only thing that can be law is, um, that it bears a property that is social in nature. The only thing he seemed to require is that the rule of recognition be a social rule, but he didn't require that that social rule, I distinguish law from non-law based on its pedigree. Okay. So, you know, what, what, what is, what is Dworkin talking about? He, on the one hand, he doesn't get the social nature of the rule of recognition correctly. Then he imputes this weird pedigree criteria to the rule of recognition, which Hart never insisted upon. Anyway, let me, I just want to flag that because it's very important, um, going forward. Let me talk about the, the second thesis of positivism, which was when, when the rules ran out, judges, let me read what Dworkin says. He says the set of these valid legal rules is exhaustive of the law so that if someone, someone's case is not clearly covered by a rule, uh, because there's no, none that seem appropriate or those that seem appropriate or vague, or for some other reason, then that case cannot be decided by applying the law. It must be decided by some official, like a judge exercising his discretion. Okay. So the idea here seems to be that when the rules run out, judges exercise discretion, the rules being those rules identified by the rule of recognition. Now, I think a lot of people, when they read this, they were really confused because, I mean, it's just seems, it seems trivially true that the law just is what the rule, what the legal rules are. I mean, what's, of course, when the legal rules run out, the law runs out. I mean, what, what, what else is the law except for these legal rules? Now, it, it becomes clear in the article that Dworkin is using a very specific characterization of what a rule is. Namely, it's some, a norm that what he ha, what he says is, has an all or nothing character to it, as opposed to what he calls a principle, which is not all or nothing, but rather has what he calls a dimension of weight. So an example that he gives for a rule is, you know, the speed limit, don't, don't drive more than 55 miles per hour. You know, that's, that applies in an all or nothing manner. Or you need two witnesses to sign to two witnesses for a will to be a valid will. So that's like an all or nothing, um, uh, standard. But there are these other things at Dworkin claims, which he calls principles, which aren't all or nothing. They are, they have a dimension of weight. There's something that you're supposed to weigh in the balance. So rules can't conflict because a rule is conclusive, um, and you can't have two conclusive standards conflicting. Um, whereas principles, since they have a dimension of weight, it's like, imagine you have a, um, a scale and you're putting some principles on one side and some principles on the other. Um, and whichever, uh, is the weightier, uh, set of principles, well, that will determine the case. And what Dworkin is claiming is that positivists like Hart assume that the law consists only in all or nothing standards. It never consists in these principles, which have a dimension of weight. The example that he gives for, he gives several examples, but the most famous is the case of, of the use of principles. In the law is Riggs versus Palmer. Now, just a little, little side note. Um, uh, well, I'll tell a little quick story. Let me just say what Riggs versus Palmer is. So Riggs versus Palmer is a case in which this guy, Elmer Palmer hates, well, I shouldn't say he's a bad, he's a bad hombre. He's a bad dude. And, um, he, he's afraid that his grandfather is going to cut him out of the will. because he's a bad guy. And so he decides that he's going to kill his grandfather before he can change the will. And he does, he kills his grandfather, and then he gets convicted of murder, and he has the chutzpah to the gall to go to the probate court and says, well, can I at least get my money? And the court has to decide whether it's going to allow Eleanor Palmer to collect his bequest under the will. Now, the court, it's a very interesting decision. It's a split decision, actually. The majority goes through the statute of wills and notes that there are, you know, exceptions for murdering beneficiaries. You have to have two witnesses. It has to be in writing, blah, blah, blah. They never mention anything about murdering beneficiaries. But the court says, nonetheless, even though the rule doesn't say anything about excluding beneficiaries who murder the testator, nonetheless, the common law contains a principle which says nobody should profit from their own wrong. And because of this principle, it's a very weighty principle, the court says that Eleanor Palmer is not permitted to collect under the law. So this is an example of where the court doesn't recognize just a rule that is set out in the statute of wills, but also a principle which no person should profit from their own wrong, which when, when applied to the case renders Eleanor Palmer ineligible to collect under the bequest because he murdered the beneficiary. Now, my little funny story, and then I'm gonna end part one, is that I was teaching this other course a long time ago called Elements of Law. And there was a law that said, you know, you can't collect under the bequest because he murdered the beneficiary. And there's a, there's a whole series of cases called Slayer cases. That's where the, where a beneficiary kills in some way the, the somebody that he, he, she, they are trying to collect from. So after Rings vs. Palmer, there's another case involving a, a beneficiary who kills, I believe his wife to collect under the life insurance policy. So this is not a will, but a life insurance policy. And the court says that, you know, you can't collect under the life insurance policy, just, just like you can't collect under the will. What was really interesting is that the, that the person who kills his wife is named Elmer. And the court says that, you know, you can't collect under the life insurance policy, just, just like you can collect under the will. So, you know, I'm going to go back to the first case, which is Elmer. Also, so in Elmer, Riggs versus Palmer, it's Elmer Palmer. In this case, it was Elmer. And I, as I have, as I say, as I was a young, young, young teacher, and I, I made a classic mistake. I say, the, the, what you learn from the Slayer cases is never name your kid or marry somebody named Elmer. And then, of course, I go one step further and say, because it's such a bad name that they end up becoming murderers. And it was a stupid joke. And it was particularly stupid because as soon as I said it, as soon as I said it, I knew the mistake I had made. So there's a hundred people in the class. And I said to, I said, okay, anybody here's father, brother, husband named Elmer. And of course, student right in the front raises her hand. So just like, don't make fun of people's names. That was the lesson I learned. Okay. Take a little break. We'll come right back and we will follow up on Dworkin's continuing critique of Hart.
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