Speaker 1Hotter and hotter, the sisters of the sun are gonna rock me on the water, rock me on the water, sister will you soothe my fevered breath, rock me on the water, I'll get down to the seas, I'll get down to the seas, I'll get down to the seas.
Speaker 2Hi everyone, this is Scott Shapiro, that was Jackson Brown, Rock Me on the Water, feeling like it would be good to be on the water, be in nature, but still quarantining here in New York City, so it's Sunday, I normally record an episode of the podcast on Saturday, but I had a traumatic experience yesterday, I was locked out of my Twitter account, and I was gonna tell a story of how I was locked out and the movement Unlock Scott that I fomented, but then I realized that actually it's really not very interesting, to me it was, because it happened to me, but it didn't happen to anybody else, so I'm gonna skip that, and I'm gonna go right into talking about jurisprudence, which is presumably why you accidentally started listening to this thing. Okay, so last episode we talked about the Hart-Dworkin debate, and I mentioned then that it was kind of stupid that I did the Hart-Dworkin debate before talking about Hart on interpretation, I'm sorry, I did it out of order, but it would be helpful to have an episode on the Hart-Dworkin debate before people, students took exams, but anyway, let's just jump right in to talking about Hart on interpretation, and the famous No Vehicles in the Park example. Okay, so in order to understand Hart on interpretation, we have to really see what he was arguing against. He was trying to find a middle ground between a doctrine that often goes by the name of formalism, and what lied on the other extreme, which is a doctrine often going, which goes by the name of legal realism. So what Hart wanted to do is he wanted to say that both formalism and realism, there's some truth in both those views, but really the correct view is somewhere in the middle, and that's what he tries to lay out in chapter seven of the concept of law. Like I said, you know, there's this view called formalism, and it's unclear exactly what formalism is. Outside of the United States, formalism is not considered a bad thing. In the United States, it's considered to be obviously wrong, and silly, and stupid, and so what I want to see if I can do is characterize what formalism is, at least in the American conception of formalism. So formalism, I think, is committed to four basic theses. One is that judges must always apply the law. So it's kind of a doctrine of judicial restraint. If there's law in a particular matter, judges are required to apply it. They can't override the law. That's the first thing. The second thesis is what one might call determinism, that is, or determinacy. Probably that's a better word. Okay. That's a better way to describe it, which is to say that for any question that arises, the law has an answer. So it's not only the case that judges, according to the first thesis, have to apply the law, but also that there's always law to apply. So there's never a case that a question arises for a judge that a judge doesn't have recourse to the law to answer. So there's always a right answer to a legal question. Now, if there's always a right answer to a legal question, the law must be arranged in some way so that it's possible to discover what the answer is. And one way the law can't be arranged is just like a list of rules, because if there's just a list of rules, then there'd have to be an infinite number of rules. Okay. Okay. And obviously, there's no infinite number of rules. So the formalist believes in the third thesis, which I'll call conceptualism, which is the idea that in order to derive the law, one has to know and learn a set of very general principles from which it's possible through a, a method like conceptual analysis to interpret those concepts to derive what the answer is in a particular case. So instead of there being an infinite number of rules, there's kind of like a handful of very general principles in any area of law. And what a judge is supposed to do is supposed to analyze the concepts in these principles in order to answer legal questions that the judge has faced. And finally, the fourth thesis is what I'll call the amorality of adjudication. The idea here is that what judges are supposed to do is not supposed to inject their own conception of morality. We're actually even engaged in moral reasoning when determining what the law is. What they're supposed to do is they're supposed to figure out what the principles are, analyze those concepts, derive the answer from those principles and those concepts. Without the introduction of moral considerations. Okay, so formalism seems to involve four theses. One is that, um, judicial restraint judge always must apply the law. Then there's, uh, legal determinacy that there's always law to apply conceptualism that the laws ranged, um, through the, uh, derivation of legal answers from a set of general high-level principles, uh, which contain, um, analyzable concepts, and then the amorality of adjudication that when judges engage in this process, the judges must apply the law. So, um, there's, uh, legal determinacy that there's always law to apply conceptualism that the laws ranged, um, through the, uh, derivation of legal answers from a set of general high-level principles, uh, which contain, um, analyzable concepts, and then the amorality of adjudication that when judges engage in this process, the judges must apply the law. They're supposed to not use moral reasoning the way formalists used to speak about it. It's a bit confusing to, to talk about it this way, but it kind of gets at the amorality idea. That is, that they're supposed to engage in conceptual analysis and, and logic. Okay, so they're supposed to engage in inductive and deductive logic to derive from general principles what the law is and then apply it in those particular cases. Now, one of the reasons why Hart wanted to distinguish his view from formalism, it, well, one is because formalism is dumb, um, and I'll, I'll explain why I think that in a moment, but also it's because a lot of people thought that, and still do, think, um, that positivism implies formalism. That is, that positivism is the idea that the law, legal facts, ultimately are determined by social facts alone, not by moral facts, and formalism is, is committed to the idea that judges don't use moral reasoning when deciding cases. So the thought was that, well, if the law doesn't depend on social, on moral facts, that's, that makes you a positivist. Then that means that there's no moral facts to use when judges are deciding cases, so therefore that must mean that positivists are necessarily formalists, and since formalism is bad or wrong, that means that positivism must be bad or wrong. So one of the things that I think Hart wanted to do was he wanted to say, no, no, no, no, we're, positivism is not committed to the law. So one of the things that I think Hart wanted to do was he wanted to say, no, no, no, we're, positivists are necessarily formalists, and since formalism is bad or wrong, that means that positivists are necessarily formalists. I think formalism is dumb because it seems pretty obvious that judicial opinions are filled with moral arguments. I mean, gosh, if you read judicial opinions, you see that judges talk about what justice requires. They talk about what virtuous behavior is, which procedures are fair. They talk about the long and short-term effects of what their decisions are, who can be trusted to implement which decisions, who's most competent, which incentives best promote compliance. They talk about which rights people have against the government, what values a system should promote. I mean, they just talk all the time about. They talk about moral considerations. I mean, that's one of the things that law students are taught when they go to law school. It's not so much like they're taught these are the rules, but rather they're taught kinds of considerations that go into good decisions in general in the law, but also good judicial decisions. You learn about things like slippery slopes. If you let people. Do this, then the then other things will happen, which are morally bad. So we got to stop people from doing certain things so that they don't do the really bad of the bad moral things we talk about who who's got the deep pockets, you know, where liability should should rest because this these people have more money than other people in there. The better insurers of certain types of losses. We talk about, you know, whether they're conflicts of interest, you know, whether people have fair warning about whether certain behavior is permissible or not permissible. Talk about what democracy requires. We talk about what fundamental rights people have. I mean, it's just just really kind of obvious that these kinds of considerations go into judicial decision making. When courts decide cases based on precedent, for example, sometimes they'll read the case narrowly, sometimes they'll read it broadly, sometimes they'll distinguish it. And these all seem to be, again, morally inflected decisions, not always. But it's kind of obtuse to think that judges aren't using policy considerations to determine how to read cases, precedents or cases. Or how to or how to read statutes take take cases like whether materials have been published or obscene or not, whether they shock the conscience. It's hard to see how that that's not a moral judgment or whether. The use of copyrighted materials is fair use or whether a contract violates public policy or what a reasonable person would do under the circumstances. These are all normative concepts that it seems really hard to believe that judges are not engaged in moral reasoning when they're applying principles or statutes that. Embody these concepts. And then there are other things like in constitutional analysis, we talk about strict scrutiny, whether statute infringes a fundamental right or discriminates against a suspect class or whether it narrowly tailored to effectuate a compelling state interest. Or if you're in Europe, talk about proportionality analysis. I mean, it's really hard to think that. Adjudication is amoral. Roscoe Pound used to make fun of people who thought that he would say he called that slot machine jurisprudence as if judges are slot machines, or he called them mechanical jurisprudence as if judges are machines. And that seems a mistake. Anyway, we have reasons to reject formalism. On its own right. But it's also the case that Hart wants to argue that positivism does not imply formalism. In fact, it implies the opposite. It implies anti-formalism. And this is the argument that I'm going to make right after we come back from the break. But let me just take us out of this part. Part one, just a little bit more Jackson Brown. Okay, we're back. Part two, positivism does not imply formalism. In fact, it implies the opposite, implies anti-formalism. Why? Well, what Hart argues is that positivism. you would think that positivism implies formalism already only if you already assume formalism. Why? Look, if you, if, if you thought the law was determinant and that there's always law to apply and judges always are supposed to apply the law and never rely on morality when deciding cases, then yes, you would, it would follow that the law doesn't depend on moral facts, right? I mean, if you thought that the law encompasses everything, there's law for every single question and judges are supposed to apply the law and they're never supposed to use moral reasoning in adjudication, then of course, it would follow that law doesn't depend on moral facts. But that's because you've already assumed the formalism is true. But what Hart is going to argue, positivism does not imply formalism. Why? Well, Hart says, let's try to think of the way in which law guides conduct. So remember, this is a very fundamental, ideal idea. We encountered it a couple episodes ago. The idea that the fundamental function of law is to guide conduct. And Hart says, well, how does law guide conduct? Well, it does it in one of two ways, right? It does it through precedent through authoritative examples or does it through authoritative general commands through, through, through rules. And in both cases, it's just not possible to guide conduct in a complete way. Why? I think it was what we'll take, you know, taking off your hat in church. One way you can guide conduct is by pointing to some person or some action and say, do that, or don't do that. So if an adult takes off their hat, they're going to do that. And if they don't take off their hat, their hat? Is a synagogue a church? There's lots of questions that are left open by saying men have to take their hat off in church. So in either case, either by precedent or by general rule, there's going to be gaps, Hart points out, and there's no way that you're going to be able to fill them. So in the case of the authoritative example, you can point to other examples, but the question is still going to arise, well, okay, so you pointed to another example, but like, so now behavior has to be similar to those two examples, but there's still an infinite number of similarity standards that apply to two examples. So you can do the three or four. It's still the case that you can still ask of those four examples, well, how similar or how different does a behavior have to be in order to come within that precedent? In terms of using a general standard, which has general terms in it, which is what we would, in modern legal systems, is kind of the main way in which guidance is given through statutory or through administrative regulations. What Hart wanted to argue, and what he does argue in chapter seven of the concept of law, is that even if you use general terms in a standard, you're not going to, give anybody a complete specification of what behavior falls within or outside the rule. And that's because by using general terms in natural language, they have what he calls an open texture, which we would, in more modern terminology, we would refer to as vagueness. That is, it's not clear who a man is, or what a church is. That is, there are certain clear instances of men and churches and hats, but then there are borderline cases. And there's no way in natural language to get rid of that vagueness, that open texture. In a previous article, called "Positivism and Separation of Law and Morals" that he published before the concept of law, Hart introduces this idea of core and penumbra. He says his general terms have these settled core instances, like if you talk about vehicles, cars are vehicles, trucks are vehicles. So that's in the core of the term vehicle, but there's going to be associated with any term, like vehicle, penumbra. Kind of an area of vagueness that it won't, it'll be neither true nor false that an example, a given exemplar either falls within or without it. So to use the example that Hart uses in that article, "No Vehicles in the Park," you'll know that cars are not allowed in, let's say, Central Park, trucks won't be allowed in Hyde Park. But then what about riding lawn mowers or electric bicycles? Do they count as vehicles? And what's a park? Is the Madison Square Park, which is like a little crappy little park on 23rd Street, I mean, is that a park that then "No Vehicles in the Park" applies to? And one of the things that's really important when talking about Hart on vagueness and open texture is to recognize that this is not something you can get around by introducing more rules. Because if you try to introduce more rules in order to answer questions about vagueness, you're not going to be able to get around that. So, if you try to introduce more rules in order to answer questions about vagueness, you're not going to be able to get around by introducing more rules. Because if you try to introduce more rules in order to answer questions about vagueness, you're not going to be able to get around by introducing more rules in order to answer questions about vagueness. So, you can introduce rules that says, "Okay, riding lawn mowers can't go into the park either." There's going to be questions about, "What do you mean by a riding lawn mower? What if the lawn mower doesn't work and you're just using it as a recreational vehicle? Does that count as a riding lawn mower?" You can't get around the open texture of natural language by introducing more natural language because that additional natural language will have its own open texture. One thought that people have had is that, I mean, Dworkin argued this in an early article, is that you could have these kind of higher order rules that would say that when a rule is vague, decide for the defendant or decide for the plaintiff or something like that. We have rules like that in the criminal law. There's a rule of lenity which says that when a criminal statute is vague, you should decide for the defendant. But you could have, Dworkin argues, higher order rules that deal specifically with open texture and vagueness by saying that when you encounter an area of indeterminacy, an area of vagueness, decide for one party or the other. The problem with that is, the reason why that's not going to get rid of open texture and the indeterminacy of law is because vagueness and open texture are themselves vague and open textured. That is, this is the phenomenon known as higher order vagueness. The example that I use is, so take somebody like in Seinfeld. So George Costanza is bald. So I think that George is a perfect example of somebody who's in the core. That's what's funny about George in part is that he's bald and he feels self-conscious about it. Not that there's a reason to, but he does. But in the first season, George was balding. And at least in the early episodes, it wasn't really clear whether he was going to be bald or not. But in the early episodes, it wasn't really clear whether he was going to be bald or not. So even whether somebody is bald or not, there can be vagueness about that. So George Costanza, it's not a clear case of vagueness. It's a vague case of vagueness. Because it's not clear whether George is bald there. So you kind of can't get away from kind of the open texture and vagueness of natural language. And if you're going to use natural language in order to provide guidance for subjects in a legal system, you're going to run into indeterminacy. And I think in general, I call this the limits of the social argument. If I had to put it very broadly, I would say that insofar as positivism believes that the law is set of standards that are picked out socially through acts of guidance, the law is going to be necessarily indeterminant because it's not possible to pick out standards socially in ways that cover every conceivable case. Because either you pick it out through authoritative example, in which case there'd be question, how similar does something have to be in order to fall within that precedent? Or you're using general terms and natural language to guide conduct. And there's always going to be the question, well, what happens when you're in the open texture, you're in the penumbra of the general term that you've used to guide conduct. I know I'm beaming this to death, but it's really important that if you're a positivist and you're really think that what the law is are standards that are picked out through some social act of guidance, then there's always going to be cases where you're going to ask, well, did the law guide me to do this or not to do this? And there, it's not going to be the case that the law has an answer. It'll be neither true nor false that the law requires or does not require this behavior. So you could say of the riding lawnmower, are you prohibited from driving the riding lawnmower into the park? And the response to that will be, it's neither true nor false. There's a gap. There's an indeterminacy in those cases. Now, since these are the kind of cases that normally get to court, I don't think you're going to be able to get away with it. I think you're going to be able to get away with it. I don't think you're going to be able to get away with it. Judges are going to have to rely on normative considerations and moral considerations to decide those cases because there's nothing, there's no law that can decide those cases. Judges are going to to rely on. So we could put the point as follows. It's not just the case that positivism doesn't imply formalism. Positivism by privileging social acts of guidance implies anti-formalism and also requires judges not, it won't only be the case that the law is indeterminate in many cases, but judges are going to have to rely on moral consideration to decide cases because they're going to run out of law to apply. Okay. So the law has gaps and judges are going to have to reach beyond the law in order to decide those cases. And so when people say, ha, ha, positivists, you can't explain why judges are relying on morality and policy considerations in adjudication. The positivist says, so of course I can. The way I do it is by pointing out that the law ran out. And because the law ran out, judges have to rely on policy considerations like fairness and rights, and democracy, and fair warning, and things like that in order to decide the case. One more point, and we're going to come back to it in part three, which is that when judges are applying morality to decide cases, they're making new law. So judges may act like they're finding the law, but in reality, what they're doing is they're making new law. Okay. Let me take a break here and let me talk about legal realism and Hart's critique of certain forms of legal realism and real skepticism. Okay. Back in a bit.
Speaker 1Okay. Running on empty, Jackson Brown. I hope you're not
Speaker 2running on empty. I hope you're doing okay. See how I work. See how I work. See how I work. See how I work. See how I work. See how I work. I hope you're doing in the song to the content of the podcast. I'm really good at this. Actually, I'm listening to this Jackson Brown podcast. I kind of like Jackson Brown and it's really cool that there's a Jackson Brown podcast. My only thing about the podcast that I think is, it's just, it's a really good podcast. But I think it's really funny when two people are talking about music, it kind of ruts you apart. And I think it's really funny when two people are talking about music, it kind of ruts you in order to know what legal realism is, at least historically, you kind of have to see it as a reaction to formalism. So when the formalists are saying, well, there are these general principles that you, that judges analyze and in using logic and conceptual analysis derive in a, without using policy considerations, the realists said, you know, bullshit. What judges are doing is they are taking these principles, which are so abstract as to be somewhat meaningless and kind of using them as ciphers in order to be able to make decisions that they think are best based on policy considerations. So, I mean, I think Holmes said it best when he said, general propositions do not decide concrete cases. The idea is that, by the way, Carl Schmitt also made that point too, which is that like when you have these general cases, you're gonna have to apply them in particular instances. And there's no way that you're gonna be able to get from those general principles to the particular case without using normative reasoning. And it's disingenuous for courts to pretend otherwise. Other things that would, that realists were reacting to is that even this idea that judges are studying precedent to decide what the principles are to begin with, and that they're figuring that out through some process of induction. That doesn't work either because as, you know, philosophers of science have pointed out, you know, it's not a, it's not a very complex idea. That is, that the, that theory, you know, that, you know, theories that the, that the evidence is not enough to determine a theory. Theories always are determined on the basis of considerations that are not deter, that are not specified by the evidence. Theories are supposed to go beyond the evidence. They have to go beyond the evidence. And the same thing with general principles. Judges, when they look at past cases is just not enough cases. In order to be able to say, this is the principle. What they have to be doing is they have to be engaged in some form of policy reasoning in order to come up with these general principles. Hart himself used, I don't, I don't believe he talked about legal realism as such. He talked about what he called rule skepticism. The idea that when judges, when they make reference to a rule, they're not really following the rule. They're using it as window dressing. And what Hart wanted to say is that certain kinds of rule skepticism are just incoherent. You can't be a legal realist about everything. You can't be a real skeptic about everything. And some of the reasons to be a skeptic about rules involve just conceptual competence. - Right. - And some of the reasons to be a skeptic about rules involve just conceptual competence. So the first thing Hart says is that, like, you can't be a total rule skeptic and a total legal realist about secondary rules. and a total legal realist about secondary rules. Why? Because what we have been talking about in the past few episodes is that the law is a union of primary and secondary rules. It rests on a foundation of rule of recognition, rule of change, rule of adjudication. And these are rules that are specified by the law. - Right. - And these are rules that are specified by the law. - Right. - And these are rules that are specified in the constitutional law of a legal system. And these are rules that are specified in the constitutional law of a legal system. So you can't be a skeptic about those rules. Because if you're a skeptic about those rules, you wouldn't have a legal system. So there's kind of a limit to how. You can't say courts never follow the law You can't say courts never follow the law because there wouldn't be courts without law that constituted the courts. So you can't be a thorough-going, real skeptic about the secondary rules. the primary rules which we said was a necessary condition for the existence of a legal system okay so the you can't be a thoroughgoing skeptic about this the secondary rules can't be a thoroughgoing skeptic about the primary rules really the only kind of skepticism you skepticism you can have is about the kinds of complicated cases that you read about in your case books and in supreme court decisions but those are cases that are hard and those are cases that are in the penumbra that are in the open texture so it's not kind of surprising that it looks like judges are not applying the law in those cases because in many of those instances there's no law to apply you one one um important source of skepticism that hart points to um which is a which is based on the confusion i i would just like to uh talk about right now because i think you see you see it um all the time when people talk about um things like impeachment what what what what hart said it was one of the the reasons why people are skeptical about the law um and skeptical about that judges are following the law when they decide cases is because they confuse finality with infallibility that is they confuse the idea that when a court like the supreme court decides the case it's final and you can't challenge it with the idea that what they're doing is they're not doing what they're doing is infallible that they can't be wrong now a decision can be final and still be fallible in fact the reason why we make a big deal over making certain decisions to be final is because we think they're fallible we just don't want people to challenge them because there won't ever be a so here's an example where i think the distinction between finality and fallibility is that we don't want people to challenge them because they won't be able to challenge them and so i think that's the reason why i think that's the reason why i think the distinction between finality and fallibility always gets run together so take impeachment the constitution says you impeach the president um if the if um presidents committed a high crime or misdemeanor and so the question is what's a high crime and misdemeanor so some people are very skeptical about what uh that about that standard that is high crime and misdemeanor i think gerald ford famously said a high crime and misdemeanor is whatever the senate thinks it is now the that's understood in the way that it was meant i think that's a mistake um it is true that nobody can challenge the senate's decision about conviction so you know whether president trump by um uh by doing what he did um he was acquitted by the senate there's nothing that anyone could do about that so the decision's final but you could say no no no the senate made the wrong decision um they were quite fallible um uh because there was a standard there high crime and misdemeanor and you know trying to um trying to you know use um uh high crime and misdemeanor um he was acquitted by the senate there's nothing that anyone could do about that so the decision's final but you could say no no no the senate made the wrong decision um they were quite fallible um uh because there was a standard there high crime and misdemeanor and you know trying to um trying to you know use um military aid in order to further your presidential um ambitions political ambitions um to dig up dirt on your opponent you think that's that's pretty much uh in the core of high crime or misdemeanor um and so the senate made the wrong decision it's just that their decision is final so the fact that you can't challenge what the senate is saying doesn't mean that the constitutional provision on impeachment is empty and one could be one is totally skeptical about it um uh rather um what i think you have to say is that no there is a standard there's just there's no way for obvious reasons um uh there's no way to challenge the decision that the senate makes in that particular case okay um so you know that none of this really challenges the sense in which lots of times we say you know there's an expression that says but we're all real legal realists now and that there's a sense in which that's true well in several ways one is the fact that you know we're not formalists in the traditional sense of formalism um and number two i think we're properly skeptical about what judges say in legal cases that is they may act like they're deciding the law they're deciding the case according to law but you know come on we know that lots of times they're either lying or they're self-deceived or politically it's impossible or very delicate for them to kind of say no we're really in the penumbra and we're going to decide according to our view about policy and morality um we have to pretend like we're calling balls and strikes um but really they're making law and we should we've all kind of grown up and realized that that's in fact the case now you know from the previous episode that this is precisely what dworkin challenges dworkin challenges the idea that when judges are looking to morality um and legal principles i'm sorry principles uh moral principles to decide cases that they are making law no he thinks that they're still finding law he just thinks that the law depends on moral facts as well um but there's a sense i think in which when we say we're all legal realists now we all have appropriate skepticism about what judges are claiming they're doing when they're deciding cases at the end of chapter seven hart says look um the rule of recognition you know that is going to have open texture too and in those cases which are going to be the cases that get to the supreme court they're going to be the constitutional cases that fall within the open texture of the constitutional text and um and applicable precedent then when judges act like they're just applying the rule of recognition or applying constitutional law we should recognize that they're not um and here he the famous line that he uses that here the only thing the only thing that succeeds is success that is when it comes to resolving questions involving the rule of recognition there's a kind of game of chicken there's a gambit that judges are engaged in and they will make a decision and if other people accept it then it will be the law going forward because a new extension of the social practice will have been formed so while they're making the the decision it's not part of the rule of recognition but when it is accepted it becomes part of the decision and it's not part of the rule of recognition but when it is accepted it becomes part of the rule of recognition the rule of recognition is extended or changed as the case may be here nothing succeeds like success it's the fact of acceptance which which makes it the case that it's that it's was correctly decided only looking back from the future in the present it's an attempt to make new law and if they succeed then the rule of recognition is extended or changed as the case may be here nothing succeeds like success it's the fact of acceptance which which makes it the case that it's that it's was correctly decided only looking back from the future in the present it's an attempt to make new law and if they succeed then that's what the law will be and if they don't they won't okay let me um move on just very quickly to fuller's critique of hard fuller wrote a critique of hearts lecture um which was in a way a praxis of the concept of law um and i posted that on the google docs um it's it's it's a very interesting uh article it's also very confusing and confused um And he raises a lot, a lot of issues. Phil is a very interesting person who has got a lot of interesting ideas. He isn't really the clearest of thinkers, in my humble opinion. But I want to talk about the part where he criticizes Hart on interpretation. So one of the things he says is that on Hart's picture, what a judge is supposed to do when they're presented, let's say, with a statute or some kind of regulation that says no vehicles in the park, what they're supposed to do is figure out what the core vehicle is in park and figure out does the case involve something that falls within the core of those terms. And if it does, then it's not allowed in the park. If it doesn't, falls outside the core, then it is allowed. And if it's independent. Then there's going to be questions about what to, how to extend the rule. But what Fuller says is that this doesn't really seem like the right way to analyze how a judge would go about thinking about no vehicles in the park. He gives the example of a war memorial. Let's say if he took a working Jeep and put it on a pedestal in a park, that would be a vehicle and in a park. That seems perfectly acceptable. The other example he gives is that you can't sleep in a railway station. Well, what if a businessman kind of nods off at 3 a.m. while waiting for his train? That also doesn't seem to be, it's kind of a jerky thing to do. A police officer came over and woke him up. If he nodded off, even though it falls within the term of sleeping, the guy is definitely asleep. And he's in the railway station and it is at night, 3 a.m. But this doesn't seem right. And what Fuller is pushing here is what is often called purpose of interpretation. That is, you're supposed to think about what was purpose. The purpose of no vehicles in the park was to, you know, safety, recreation, whatever the case may be. Or not sleeping in the railway station is supposed to ensure that, you know, people don't use the railway station as their home. It doesn't involve a customer who's waiting for a train who nods off. And so what Fuller says is that this picture that Hart's giving of just, I mean, I think we would probably describe it now as a textual analysis of statutory interpretation seems to be off because what we think the better thing to do is to engage in, to ask ourselves, what's the purpose of the rule? And does the War Memorial fall into, for the purpose of the rule or not? And it seems like having a War Memorial would not seem to fall afoul of the purpose of the no vehicles in the park rule. And so therefore Hart, is there something wrong with Hart's analysis of Corponumbra? We can talk about whether that's right or wrong. But when, and what we will talk about this extensively in later episodes, but one thing that Fuller, the point that Fuller wants to make, which I think is really off is he says that because we want, we think that judges should approach legal interpretation by considering the statute's purpose or the regulation's purpose, it's a, it's a mistake to think that law and morality are, are separate. What a judge is doing in the case of looking to purpose is trying to figure out what, what, what ought you to do and what does the law want you to do? You're looking to what not just is the case, but what ought to be the case. And so Hart's positivism is, is by separating law from morality can't explain the, the intuition that looking to purpose is really important when we talk about legal interpretation. Now, I think that this is off because it's perfectly possible to talk about the purpose of a statute without thinking about morality. You can think about what purpose did the legislators have in mind? Why did they, they enact this statute? You know, what were they, what were they trying to achieve in in enacting this regulation? And those are social facts and you can ask, well, what behavior would further the purpose that legislators in fact had. And that itself is just a descriptive question. Would this follow with this further, the purpose that these individuals had in this particular case. So I think that Fuller's critique of Hart wears onto something when talking about the importance of purpose of interpretation, I think is off when he tries to derive from that, that somehow this is anti-positivistic anyway, this is a very short discussion of Fuller. But I'm going to end it here cause I am running on empty and I should leave you all take care and I'll have Jackson Browne take us out.
Speaker 1I don't know if that was enough to get me out. Running on empty. Running high. Running into the sun, but I'm running behind.
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