I wanted to explain an objection that is often raised against positivism, that it lacks a theory of adjudication in hard cases. That means that it doesn’t offer judges any guidance in making decisions in cases where the written law is indeterminate.
This is complicated by the fact that we were comparing the positivists with the realists. The realists also lack a theory of adjudication. They say that judicial decisions determine the law, but don’t tell judges how to go about making those decisions.
The four point argument we were discussing is inspired by some remarks that the realists made, but isn’t clearly an argument that they endorsed.
This, implicitly, was Ryan’s question. The legal positivists and the legal realists gave us theories of what the law is. Giving us a theory of adjudication would be something else. Why hold them responsible for something that they didn’t try to do? We didn’t object that they didn’t give us a theory of gravitational force either, after all.
I think Ryan’s point is well taken. Those who disagree with him think it’s important that judges stick to adjudicating questions of law. That is, they think that judges should only settle cases by determining what the law is, where “what the law is” is settled prior to their decision.
Hart thinks that their impatience with what he calls penumbral cases is unwarranted. No system of laws will cover all possibilities. So judges have to either refuse to render verdicts in some cases or legislate.
When we read the case of the Speluncean explorers, we’ll see how different legal philosophies might make a difference to how judges settle cases.