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. For example, legislators can legislate by promoting the interests of their constituents: 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. 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.
Dworkin tried to show that Hart faces a dilemma. He has to choose between saying that principles are part of the law and saying that they are not part of the law. Neither alternative is palatable for Hart and there is no third option.
We were quick with the first option, that principles are not part of the law. Hart had been working on a written response to Dworkin that was published in the postscript of the second edition of The Concept of Law. While Hart’s remarks were incomplete, his comments all concerned the second option, so that’s where we concentrated our attention.
I tried to show that Hart could use the rule of recognition to identify some of what Dworkin calls principles as part of the law. Whatever rule of recognition is employed in the US clearly includes the Constitution as part of the law and the Constitution also clearly has parts that have the features of principles.
Lane did not think this could work. Hart’s theory is that the law is the union of primary and secondary rules. Treating principles as law would be like treating the penumbral areas as settled law. That, as Lane saw it, was something that Hart wanted to resist. He wanted to say that a specific resolution of the penumbral cases becomes law only after judicial legislation. The law does not say that a scooter is a vehicle for the purpose of the law forbidding vehicles in the park until a judge decides that it does. I’m not sure what Hart would do with that.
And as Mollie and Claire reminded us, it is not enough for Hart to show that some principles can be identified by a rule of recognition. He has to show that all the principles used by judges can be identified by rules of recognition.
Dworkin expressed skepticism that this could be done. It is not as easy as saying “whatever is passed by the legislature (following the rules, etc.) is law.” Nor would it do to have something empty like “the principles that count as law are the ones that are accepted as counting as law.” That says nothing about how to recognize the principles that belong to the law and distinguish them from those that do not.
Could the answer be that judges establish which principles count as the law, as (I think) Peter suggested? The relevant rule of recognition would say judges can make principles part of the law. Perhaps!
Dworkin himself seems to have been inclined to say that the origins of principles are irrelevant; it’s their substance, specifically their appropriateness, that matters. For Hart, it’s the other way around: laws are determined by their origins. For Hart, a law is a rule that comes from a source that can make laws, no matter how stupid the rule is. For Dworkin, a principle has to make sense, no matter what its source is.
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.
Maybe the realists had a point!
Holmes’s lecture, “The Path of the Law,” was originally published in 1897 on pages 457–478 of the Harvard Law Review. That is what is posted on Sakai for our class.
The Harvard Law Review subsequently republished the lecture on its 100th anniversary in 1997 on pages 991-1009. That is what is sitting in the folder in my desk with “Philosophy of Law Readings” written on it.
In short, when I remember Holmes having written something on page 1000, I am wrong: the article we read does not have a page 1000. But I’m not crazy: an article with the exact same title and content and published in the same journal does have a page 1000.
I don’t mind being wrong, so long as I’m not crazy.