Legal Realism

-Hart’s critique is commonly considered the end of legal realism among philosophers

  • we should read Cohen to see if Hart was right about realist views

1st position Hart attributed to the realists is the view that the law is indeterminate because of the language within which legal rules are formulated

  • the result is that the law consists simply of the decisions of courts and the prediction of them
  • Hart argues these the realists’ claims about indeterminacy are overblown
  • true, language has open texture
  • central cases, and then penumbra
  • but within the central cases it is clear that the rule applies

-Green: is it true that indeterminacy in language is the only reason that the law is indeterminate?

-what about canons of interpretation?

  • such canons can allow one to ignore plain language too

second position: The argument from judicial supremacy.

-because of the doctrine of judicial supremacy even judgments that haveerroneous interpretations of statutes (and other laws) are legally binding

  • a statute, it seems, can’t be law since it has no effect in the legal system –
    - officials are obligated to obey the judgment, not the statute
  • the statute must be something that the judge takes into account (to a greater or lesser extent) when creating the law

Problem: even if the argument from judicial supremacy worked, it would not show that the law is what courts say it is in every legal system, or even in every legal system with courts

- not every legal system has to have judicial supremacy (or does it?)

In addition, if all law is a court’s decisions, what about the law that identifies a court’s decisions (e.g. rules of jurisdiction)?

but more importantly…

-even in those legal systems where judicial supremacy exists, there is no reason to believe that the law is simply what a court says it is

- if it were really true that the law is what a court says it is we would have no grounds for criticizing court decisions

- difference between baseball and scorer’s discretion –

- cannot criticizescorer in game of scorer’s discretion – can in baseball

problem with Hart’s argument:

-he considers only weak judicial supremacy – the obligation of officials to respect the particular judgment - e.g. that D must pay P $100,000

what about strong judicial supremacy – fact that the court’s interpretation of the law is binding on officials going forward

-umpires do not have strong supremacy

Cohen – how much is this like Hart’s caricature of realism?

What are his criticisms of legal rules?

-1st criticizes certain types of legal rules

-Example of presence of a corp. as reason for personal jurisdiction

-does not provide guidance to a court because it is really the conclusion of an argument based on other (moral and factual) considerations

Is that true of all legal rules for Cohen?

-no

-Any suggestion of radical indeterminacy in law? No

-Any suggestion of appeal to judicial supremacy to say law is what a court says it is? No

-What is his motivation for prediction theory?

-reducing law to social facts

-then a court should make a moral decision about what to do given those facts

-allows the law to be more accurately described and moral judgment about whether to follow the law to be more accurate

-C does not say that the law is the decision the court that gets the case will issue, but that the law is what courts in general will decide

-But Hart rejects the prediction theory even understood this way

-missing the internal point of view–the fact that officials point to standards (legal norms) as the reasons for their decisions rather than pointing to social facts about official practice and their consequences for morality or prudence

Notice…

Shapiro can explain through planning theory of law why officials end their justification with legal norms rather than pointing to the moral and prudential consequences of social facts about legal practices – legal norms are plans

So can Dworkin – legal norms are associative obligations identified through the moral interpretation of legal practices – can deviate from straight moral obligations

now briefly – the moral impact theory of law - Greenberg

this is a theory of law and theory of legal interpretation

legal obligations are all-things-considered moral obligations generated by acts of legal institutions

start with his account of standard picture

-claims that philosophers of law are committed to it (with exception of Dworkin)

under standard picture legal content is primarily determined by the linguistic or mental contents associated with authoritative legal texts

Compare Dworkin

-principles that are the result of the moral interpretation of legal practices are used to determine the legal content of a statute

example of us v smith case

-was trading a gun for drugs the “use” of a gun in connect with a drug trafficking or violent crime?

-lots of considerations, including moral considerations, taken into account by both sides of case

-the moral impact theory can explain why and the weight that each gets

-

Problem:

what about this: A gov’t enacts a law to persecute a group –

this changes moral profile (should fight the government)

but the moral duty to fight the gov’t is not a legal obligation

Greenberg adds that the moral obligations must be created in the “legally proper way”

-worry that this is ad hoc (or circular)

Is there a moral duty to obey the law for Greenberg

-Yes – but not a moral duty to obey the content of directives – law os different from the content of directives

-Is there an overriding moral duty to obey the law - Yes

How do you identify a legal institution under Greenberg’s theory – don’t they have to be identified through law?