Friday, June 11, 2010
On The Arrogance Of Priests
In preparation for teaching next year, I've been reading some fairly basic jurisprudence, mainly around a debate between H. L. A. Hart and Ronald Dworkin. The debate focuses on the question of the role of moral resources in filling out what a given system of law says, and so what law actually is. Roughly, Dworkin thinks that because accurately any given legal statute will require casting it in the best light possible, an accurate interpretation of any given statute and so what the law is involves using whatever appropriate set of true moral principles there are. Hart, on the other hand, thinks that the law may be indeterminate and that, in effect, the law is more or less whatever whomever the system designates as the relevant authority says it is, whether or not it has been interpreted in line with whatever appropriate set of true moral principles there are. Now, whatever else may be said in favour of either view, Dworkin's reasoning in favour of his claim involves a piece of rather interesting systematic blindness. Part of his argument depends on the thought that since law is a normative practice, it needs to be understood from the inside, from the point of view of its participants. For him, the relevant participants are lawyers, other lawyers in fact, since Dworkin himself is trained as a lawyer. So, on Dworkin's view, the people whose view of the law dictates what it is really like are those who make its decisions. The people who are actually subject to those decisions, wise or capricious, subtly reasoned or pieces of intellectualised brutality, apparently have no relevant understandings of the practice at all, nothing to bring to the project of understanding their fundamental character. Law is what lawyers do - or rather, wasn't that the other view?
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6 comments:
I don't think you can get out of it that easily. Law is what lawyers do and it is valuable in specifically law-like ways, which can be shown to be valuable in terms of their grounding in explicable moral principles... and Dworkin's back in the room. But, of course, Hart doesn't exclude lawyers arguing for the value of law in moral terms, or actually-existing legal systems genuinely being grounded in morality. My sympathies are with Dworkin, but I think he seriously underestimated Hart.
He wasn't the only one: Hart was a genius, and people have spent years trying and failing to prove his model of the law wrong. But I think one can be both a genius and a slippery bastard, and that Hart's model was in fact wrong... or wrong-ish... or not wrong as such but substantially misleading and incomplete... or something. (More reading needed.)
Have you read Nigel Simmonds' jurisprudence primer? It's excellent. If you can, I'd recommend reading the first edition (which can be done in a couple of days) and then reading the third. For my money Simmonds does land a glove on Hart a couple of times, in the third edition and in Law as a moral idea.
I think it's put quite well in the abstract to this week's JDG talk:
" The debate, it seems, degenerates into a difference of emphasis with the old natural lawyers insisting that unjust laws are not fully laws (i.e. not binding in conscience) and positivists insisting that they are laws, just immoral ones (i.e. not binding in conscience)."
http://www2.law.ox.ac.uk/jurisprudence/jdg/
Alternatively, I might put it in terms of positivists using 'law' in a purely descriptive sense and natural law types (including I suppose Dworkin, though not sure he fits the label) using it in an evaluative sense.
FWIW, I believe that Dworkin distinguishes several senses of 'law' in Justice in Robes, one of which is the seemingly evaluative ideal appealed to in the 'rule of law'.
The Laing paper certainly sounds interesting.
Well, I think what's really at dispute between Dworkin and Hart is whether judges make law, which puts the debate in a whole other context; for Dworkin at least it's about the role of the Supreme Court in the States, and whether or not Supreme Court Justices legislate, a power you might think ought not to be exercised by political appointees rather than accountable, elected officials. And of course the question of the value of law is not the same as and perhaps dependent on first answering the question of what it is in the first place: no positivist, I take it, is saying that the law is or isn't valuable, they're saying that the question of what law is is different from whether living under it is a good thing.
A creationist was arguing with a Darwinian. The creationist stated that it was absolutely, definitely, irrefutably true as a matter of fact that human beings are utterly distinct from all other animals. On the contrary, the Darwinian replied, it is absolutely, definitely, irrefutably true as a matter of fact that human beings are a species of ape. Along came a positivist, who proposed that the entire discussion should be suspended indefinitely, without prejudice to either party, in favour of developing a precise zoological definition of what is meant by "human being".
When advanced as a reply to claims that law has intrinsic value, the difference between "no it doesn't" and "let's defer any consideration of whether it does or not" perhaps isn't that great.
Phil,
in exactly what sense is saying 'law is whatever judges and other recognised sources of law say it is' supposed to be analogous a refusal not taking sides in a dispute over the definition of a natural kind which anyway do not exclude each other? Positivism is not a reply to the claim that law has intrinsic value; it's an answer to the question, what is law, and not only is it clearly possible for law to lack intrinsic value, but we need a reasonably well-settled sense of what law is at all in order to decide whether or not it has intrinsic value. Reading Dworkin, I find it very difficult not to think him an idiot.
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