We left off last time with some dissatisfaction. Hart had said that judges must legislate when the rules do not determine their decision in a particular case. He made a reasonable case that something like this has to happen in any system of rules. No rule is going to list all the possible vehicles, for instance.
But what is unsatisfying in both Hart and Holmes is that nothing is said about the constraints on how judges legislate. Legislators can legislate by promoting the interests of a particular class in society: that’s what they are elected to do in a representative democracy, after all. But it would be very odd if judges were allowed to do that. At least, they aren’t allowed to do that in our system. (OK, OK: they aren’t allowed to say that they do that in our system.) Anyway, the point is that it cannot be as simple as saying that they just legislate, period.
Dworkin went right at this problem. He thinks that judges employ what he calls “principles” in making their decisions and that we can’t understand what judges do unless we include principles in our account of the nature of law. If he makes his case, then Hart’s theory is incomplete. Law is not just a system of rules but must include principles as well.
Our discussion followed the structure of Dworkin’s article. I said that Dworkin tried to show that Hart faces a dilemma. He can say that principles are not part of the law or that they are part of the law. His position would be compromised either way, according to Dworkin.
We were quick with the first option, that principles are not part of the law. When Hart responded to Dworkin himself, his comments all concerned the second option, so that’s where we concentrated our attention.See Hart’s Postscript to the second edition of The Concept of Law.
For the second option, that principles are part of the law, we spent a fair amount of time talking about the distinction between rules and principles: Dworkin said they are different in kind, Hart said the differences are more a matter of degree.
Having thought about it, I’m not sure that this is the central point. I have two reasons for thinking that.
First, it seems pretty obvious to me that Hart’s theory can explain how the law contains some elements that look very much like what Dworkin called principles. In the American legal system, the rule of recognition treats the Constitution as a source of law. But it’s trivial to find parts of the Constitution that are broad statements of value, much like the principle that no one should profit from their own wrong. Since Hart’s theory can handle the Constitution as a source of law, it can handle laws that look like principles.
Second, I think the central question is whether there could be a rule of recognition that would identify all of what Dworkin calls principles. If not, the central part of Hart’s theory would be wrong as there would be valid parts of the law (the principles) that cannot be identified by a rule of recognition.
I do not know if that is right or not. But it seems to me that’s the main issue.
Josh C. was slightly offended by Dworkin on the grounds that he seems to be giving up on identifying the law. I think that’s a shrewd observation. In my opinion, Dworkin did not think that there could be a definitive theory of what the law is; the analytical exercise that Hart was engaged in is hopeless. Rather, he thought the boundaries of the law are always a matter of interpretation.
I don’t mean that he thought that one view was as good as the next. The article we read was the first part of his attempt to work out his own opinions. His book Law’s Empire was his statement of how principle impose constraints on judges rather than giving them complete leeway.
So one way to see what we’ve been doing is that we’ve been tracing the evolution of ideas. Hart’s criticisms of Austin and the realists lead to his theory. Dworkin’s criticisms of Hart lead to his view.
One point Dworkin made about the positivists is that if judges are legislating, then the parties whose cases are being decided are being punished (or rewarded) based on the law that is made after they did the things that brought them to court.
That seems pretty bad. How can it be fair to require a person to comply with a law that doesn’t exist until later?
At the same time, however, I’m not sure Dworkin himself made a great leap forward with this problem. According to him, judges settle questions about legal rights and duties by consulting an indeterminate mass of principles whose interpretation and weight are matters of judgment. The person trying to comply with the law can be just as much in the dark about how the case will be decided as the one who faces a judge who makes the law up in deciding the case.
So one thing I take away from this discussion is that we have an ideal that probably can’t be met. Our ideal is that the law is settled in advance such that it is possible for someone who is sincerely trying to comply with the law to do so. But there may be areas of the law where private citizens cannot know if they are in compliance or not because what the law is is too unsettled.
As Josh O. noted at the very end of class, maybe the realists had a point.