Now Hart Dworkin Debate

Now Hart Dworkin debate

Start with methodological issue

-View about conceptual analysis

-What determines the content of the concept?

Is it the criteria that we currently associate with the concept?

-if so then if disagreement about criteria we have different concepts and so are talking past one another

-Is Hart committed to this view?

NO – as we have seen Hart is committed to the idea of reflective equilibrium – the content of a concept can be other than the criteria that people currently associate with it.

-Green: need to draw a distinction between agreement fixing the content of the concept of law and it being the case according to the content of the concept that agreement fixes the content of the law of a jurisdiction

Hart does not think that agreement fixes the content of the concept of law (it is determined by reflective equilibrium)
But he does think it follows from the content of the concept of law that agreement among officials in a jurisdiction fixes the content of the law of that jurisdiction

Dworkin against Hart on Adjudication

-One question is whether judge makes or finds law in a hard case

-talk like they find law

-Indeed if they were making law judges would apparently be acting unfairly because they would be applying new rules retroactively

-And judges would be acting undemocratically

-Dworkin argues that under Hart’s theory judges must be exercising discretion in hard cases

-Since there is no agreement among officials about the answer to the hard case, under Hart’s theory there can be no law on the matter

a) Riggs v Palmer

- grandson murdered grandfather, may he inherit under the will?

- OK under statute

- BUT the majority on the court of appeals says no inheritance because no one may be permitted to profit from his own wrong

- this is a hard case because judges disagree about the resolution and it is resolved by appeal to moral principles

- Dworkin argues that for Hart this must be an example of judges looking to morality to create a new legal rule

- problem, judges act as if there is a preexisting answer

- lawyers argue as if there is

- how can we explain this?

Dworkin – law is the best moral justification of the existing legal materials

-That can explain how there is an answer despite legal disagreement

-What is Hart’s answer?

-Inclusive legal positivism

-Morality can be introduced into law through social facts

-Example of 14th A – it is a matter of social facts, but refers to morality (equal protection)

-But not all moral principles are introduced into the law – only those identified by social facts

In the end, for Hart claims law is still about agreement

So inclusive legal positivism is Hart’s response to Dworkin’s first criticism

What is Dworkin’s second criticism?

Theoretical disagreement

-People think there is a right answer although they disagree even about the criteria for valid law

-Inclusive legal positivism assumes that there is agreement on the criteria for law, even though those criteria might be moral

-But Dworkin claims that there can be disagreement about criteria as well, even though people think there is a right answer to that question

Hart’s theory has a hard time answering this

To repeat:

-Two fundamental criticisms of Hart

-For Hart law is determined by official agreement

-- no agreement then no law

-But in hard cases judges disagree – and yet think there is a preexisting answer

They answer by appeal to moral principles

-How does Dw explain this?

-Law is not exhausted by agreement

-It is the best moral interpretation of those materials officials agree is upon

-There is a fact of the matter about what the best moral interpretation is

Hart’s response – inclusive legal positivism

-Morality can be included within the law if it is identified by social facts

-If it is then the moral answers will determine legal answers even if moral answers are contentious

-Agreement on criteria of law but disagreement about their application

Dw’s response – there may not be agreement about the criteria of law – “theoretical disagreements”

That is a more serious problem for Hart

-Many positivists claim that in cases of theoretical disagreements there is simply no legal answer

Shapiro On Authority:

Criticism: submission to authority is both irrational and hostile to autonomy
Irrational: when you submit to an authority, you are doing something that is contrary to the balance of reasons of which you are aware, which is irrational
You have allowed authority to usurp your reasoning process
Rationality: : the idea that an agent should act in accordance to the balance of reasons of which the agent is aware
I.e. I am going to stop at the stop sign because my balance of reasons tells me I should do so
Submission to authority usurps this process
Autonomy: the ability to think for oneself, and reason through what one ought to do…
Submission to authority replaces that because one no longer reasons through what one should do; he/she just does
Issue: there’s no obligation to be autonomous…?
Shapiro’s Understanding of Autonomy: an autonomous agent only recognizes content-dependent reasons for action, because these reasons for action are the only ones that morality would allow
If an authority existed, it would be able to create a moral reason to X simply by saying X and to create a moral reason to not X simply by saying not X – such a power over moral reasons for action seems impossible and someone who took an authority that had such power would not be behaving autonomously, in the relevant sense
That this is a different criticism from the rationality criticism can be seen by considering promises
Someone who does what someone else says because he has promised to do what that person says is behaving rationally in the relevant sense, because he is acting on the balance of reasons of which he is aware – but there would still be a problem with autonomy in such a case, because of the content independent nature of the obligation

a third problem with authority

a)Everyone agrees that authority is limited: under certain circumstances one is justified in disobeying the authority

b)But in order to determine whether one should disobey the authority, it appears that one must consider the balance of reasons of which one is aware

c)But if one is considering the balance of reasons one cannot be submitting to the authority

(1)You cannot engage in reasoning about whether you ought to do what the authority said

d)Thus, anyone who submits to the authority would apparently have to do so absolutely, without considering the possibility of disobedience

(1)Since absolute submission to an authority is unjustified, authority therefore must be impossible

How to solve the puzzle – perhaps we should understand authority differently
Ladenson’s Theory: legitimate authorities issue directives that do not themselves provide reasons for action; what provides the reasons for action is the probability of punishment – under Ladenson’s theory a legitimate authority is simply one who may permissibly punish
Thus, under this theory, autonomy and rationality are kept intact
Shapiro’s Counter-argument: the authority feels permitted to punish violations only because it thinks the orders themselves create duties
Raz’s Theory on Authority:

Dependence Thesis:The authority sums up some reasons for action, not just sending out random orders

Normal Justification Thesis: The authority provides a service or aiding to normal people, that they are more likely to satisfy the reasons for action the authority took into account by obeying the authority than by acting on their own reasoning.

Preemption thesis: The authority’s directive preempts the reasons that the authority took into account.If you considered the reasons the authority took into account again that would be double counting

a)The authority cannot give orders like “you have to do the right thing”, because that would require people to use their own reasoning to decide what is the right thing to do. The authority’s order would not provide assistance to people.

b)Solves the Irrationality Problem:

Submission to the authority is itself a reasoned decision that makes it more likely to satisfy one’s reasons for action

c)Autonomy Problem:

The authority does not claim an arbitrary power to make wrong things right or right things wrong - The authority is sensitive to the pre-existing reasons for action

d)If the authority is not reasonable (corrupted or…) and not aiding you in your reasoning - It is not an authority at all.
You don’t need to do whatever it says.

Thus, Raz is able to explain why authorities can be legitimately disobeyed
You are not supposed to figure out whether the authority is wrong when determining whether to follow its direction.
Otherwise you would be considering the preexisting reasons for action and not submitting to the authority
But if the authority’s directive is clearly wrong, you can tell that the authority is not sensitive to the pre-existing reasons for action.
In this process, you do not need to actually weigh your reasons for action

e)An authority is not usually an authority about everything, but about a particular thing

Doctor: “Take this pill.” - Preempting medical reasons for action
If the patient has religious problem with the pill, he could override the doctor’s advice because the doctor’s authority only preempting some reasons for action - Not including religious reasons

Inclusive Legal Positivism is contrary to Raz’s theory of authority

14th Amendment: Equal Protection - Moral quality
Problem:
In order to figure out whether it is a law, you have to figure out whether it satisfies Equal Protection
That means you have to use your underline reasons for action
The exclusive legal positivist concludes from this that morality cannot be a criterion for law
Thus, for the exclusive legal positivist, the morality part cannot be part of the law - But the law obligates the judges to think outside the law - morality.
Green: Is it also possible for facts that they cannot be part of the law?
Sometimes the reasons for action, which are preempted by law, are factual ones
Law cannot refer to the factual reasons for action that it claims to displace
An example would be a court’s judgment for the plaintiff that says that the judgment is not binding if the defendant did not in fact do it
Thus, certain facts cannot be included in the law either

Shapiro’s Criticismof Raz’s Approach: 5 scenario Raz claims where authority may exist
Expertise:
Example: Doctor said, “take the blue pill.”
Raz’s theory:
When the government issues the regulation, it creates a reason for action that displaces the reasons for action that originally has - You don’t need to consider all the reasons.
When you follow the government’s regulation, it is more likely that you will abide by your reasons for action than think it by yourself
Simpler Theory:
The regulation is not a reason to action, but a reason to believe about my reasons to action. Then based on that belief, a person will make a decision by consider all the reasons.
So when the gov’t says take the blue pill I believe that there are medical reasons to do so. With that new belief I act on the balance of reasons of which I am aware.
Bias:
Giving the dispute to an arbitrator because we know in that situation we are more likely to do what we ought to do than when we try to figure it out ourselves
Problem:
- why not understand the arbitrator as creating a reason for belief
The arbitrator’s decision for the other side gives me a reason to believe that the other side is right
With that new belief I act and the balance of reasons of which I am aware.
Costliness of Deliberation
Rather than thinking about every reason to decide what is a good choice, we can rely on the authority - The government has made it cheaper to do the right thing than we all make our own reasoning by ourselves.
Problem:
- Once again, this may still be a reason to believe, rather than reasons for action
The government simply provides us a reason to believe that pre-existing reasons for action favor doing the thing the authority says
With that new belief I act on the basis of the reasons for action of which I am aware
Coordination:
Example: Which side of the street should I drive on?
Cannot make the right decision individually because it depends on what everyone else think which side they should drive
Government said, “drive on the right.”
Raz: This instruction/order supplants your reasons for action
Problem: It creates a new belief - Other people are likely to drive on the right side

Because it is now salient

Prisoner’s Dilemmas
Examples where everyone making rational choice of dominant strategy makes everyone worse off
eg should I pollute?
Either other people are going to pollute or they are not
If they are going to pollute then I might as well – my pollution won’t make the messed up water and air any worse
If they are not, then I might as well pollute – my pollution won’t make the wonderful water and air any worse
So I might as well pollute no matter what
But everyone has the same reasoning and we end up with a polluted world

PD can also arise ifassume the people are not selfish, but that they are attempting to act on the basis of the moral reasons for action of which they are aware.
Either other people are going to pollute or they are not
If they are going to pollute then I have no moral reason not to pollute – my pollution won’t make the messed up water and air any worse
If they are not, then I I have not moral reason not to pollute – my pollution won’t make the wonderful water and air any worse
So it is morally permissible to pollute no matter what
But everyone has the same reasoning and we end up with a polluted world

Is Raz right that the authority will help you to make the right decision not to pollute.
How does authority solve this problem without sanctions?
Note: everyone agrees that a system of sanctioning defectors is a possibility for overcoming prisoner’s dilemmas.
Assume the selfish version of the PD
If the authority gets you not to pollute, isn’t it really encouraging you to act against your (selfish) reasons for actions? How is the authority helping you abide by the reasons that apply to you?
Assume the moral version of PD
If you already have a moral reason not to pollute even when every other person does, then you would not pollute even there is no authority
So the authority is unnecessary
On the other hand if you don’t have a moral reason not to pollute when every other person does, then how does the authority’s directive solve the problem? – doesn’t it give the wrong answer?
How about this idea
Even though my action will not make a practical difference, I have a reason not to pollute if other people in general are also not polluting (this is tied to the duty of fair play). On the other hand, if other people are polluting, I have no moral reason to not pollute.
This puts me into a coordination problem. I need an assurance that other people will not pollute
But how can the gov’t give me this assurance without sanctions? And even if it can, all it has done is given me a reason for belief, not a reason for action.

-Don’t confuse authority in Raz’s sense with the power to compel obedience

-An authority can be on Mars communicating to us via radio

Shapiro: one problem is that for Raz is we seem to be making a decision to follow the authority

-But if we decide to follow the authority, then the reasons that recommend the following the authority are sufficient to do what the authority says

-We appear to be acting on the balance of reasons of which we are aware after all

Shapiro’s solution – authority has the same purposes that Raz suggests but we follow authorities by making it such that we do what they say w/o deliberating

-We in effect bind ourselves

Consider the phenomenon of planning

Say I have a plan to cook dinner

-Having made that plan and should not reconsider it absent compelling circumstances

-The plan makes it rational not too decide

Now for problem with inclusive legal positivism – Shapiro’s argument

-already saw Raz’s arg for excl legal positivism

-can’t be an authority if determining the existence or content of the authoritative utterance means looking to the underlying reasons for action the authority is supposed to displace

Shapiro’s argument

-starts with a great account of philosophy of law in general

-how can we make sense of legal institution’s claim to legal authority

-any claim of legal auth presupposes legal rules granting it

-chickens – authorities

-eggs – rules granting it

-Austin – chicken approach (a lawmaker without an authorizing law)