The Postscript, by H.L.A. Hart
Hart’s rebutter to Dworkin’s doughnut. Obscurity and contestability of morals requires that Facts be taken into consideration, and the separation of powers justifies it. Plus weekend bonuses below..
H.L.A. Hart wrote:
THE POSTSCRIPT
… In this Postscript I attempt to reply to some of the wide-ranging criticisms urged by Dworkin in … his Taking Rights Seriously (1977) and A Matter of Principle (1985) and in his book Law's Empire (1986). …
(iii) Soft Positivism
… Dworkin's most fundamental criticism is that there is a deep inconsistency between soft positivism, which permits the identification of the law to depend on controversial matters of conformity with moral or other value judgments, and the general positivist 'picture' of law as essentially concerned to provide reliable public standards of conduct which can be identified with certainty as matters of plain fact without dependence on controversial moral arguments. To establish such inconsistency between soft positivism and the rest of my theory Dworkin would cite my account of the rule of recognition as curing, among other defects, the uncertainty of the imagined pre-legal regime of custom-type primary rules of obligation.
This criticism of soft positivism seems to me to exaggerate both the degree of certainty which a consistent positivist must attribute to a body of legal standards and the uncertainty which will result if the criteria of legal validity include conformity with specific moral principles or values. …
… Dworkin’s second criticism of the consistency of my version of soft positivism raises different and more complex issues concerning the determinacy and completeness of law. My view advanced in this book is that legal rules and principles identified in general terms by the criteria provided by the rule of recognition often have what I call frequently 'open texture', so that when the question is whether a given rule applies to a particular case the law fails to determine an answer either way and so proves partially indeterminate. Such cases are not merely 'hard cases', controversial in the sense that reasonable and informed lawyers may disagree about which answer is legally correct, but the law in such cases is fundamentally incomplete: it provides no answer to the questions at issue in such cases. They are legally unregulated and in order to reach a decision in such cases the courts must exercise the restricted law-making function which I call 'discretion'.
Dworkin rejects the idea that the law may be incomplete in this way and leave gaps to be filled by the exercise of such a law-creating discretion. This view he thinks is a mistaken inference from the fact that a proposition of law asserting the existence of a legal right or a legal duty may be controversial and so a matter about which reasonable and informed men may disagree, and when they do disagree there is often no way of demonstrating conclusively whether it is true or false. Such an inference is mistaken because when a proposition of law is thus controversial there may none the less still be 'facts of the matter' in virtue of which it is true or false, and though its truth or falsity cannot be demonstrated, arguments that it is true may still be assessed as better than arguments that it is false and vice versa. This distinction between law that is controversial and law that is incomplete or indeterminate is a matter of considerable importance for Dworkin's interpretive theory, since according to that theory a proposition of law is true only if in conjunction with other premisses it follows from principles which both best fit the legal system's institutional history and also provide the best moral justification for it. Hence for Dworkin the truth of any proposition of law ultimately depends on the truth of a moral judgment as to what best justifies and since for him moral judgments are essentially controversial, so are all propositions of law.
For Dworkin the idea of a criterion of legal validity the application of which involves a controversial moral judgment presents no theoretical difficulty; it can still be in his view a genuine test for pre-existing law because its controversial character is perfectly compatible with there being facts (in many cases moral facts) in virtue of which it is true. …
[But] a moral test can be a test for pre-existing law only if there are objective moral facts in virtue of which moral judgments are true. But that there are such objective moral facts is a controversial philosophical theory; if there are no such facts, a judge, told to apply a moral test, can only treat this as a call for the exercise by him of a law-making discretion in accordance with his best understanding of morality and its requirements and subject to whatever constraints on this are imposed by the legal system. …
… It is to be observed that some theorists, notably J. Raz, hold that whatever the status of moral judgments may be, whenever the law requires courts to apply moral standards to determining the law it thereby grants the courts discretion and directs them to use it according to their best moral judgment in making what is a new law; it does not thereby convert morality into pre-existing law.
3· THE NATURE OF RULES
(i) The Practice Theory of Rules
Dworkin's central criticism of the practice theory of rules is that it mistakenly takes a social rule to be constituted by its social practice and so treats the statement that such a rule exists merely as a statement of the external sociological fact that the practice-conditions for the existence of the rule are satisfied. That account cannot, so Dworkin argues, explain the normative character possessed by even the simplest conventional rule. For these rules establish duties and reasons for action to which appeal is made when such rules are cited, as they commonly are, in criticism of conduct and in support of demands for action. This reason-giving and duty-establishing feature of rules constitutes their distinctive normative character and shows that their existence cannot consist in a merely factual state of affairs as do the practices and attitudes which according to the practice theory constitute the existence of a social rule. According to Dworkin, a normative rule with these distinctive features can only exist if there is “a certain normative state of affairs”. I find these quoted words tantalizingly obscure …
(ii) Rules and Principles
For long the best known of Dworkin's criticisms of this book was that it mistakenly represents law as consisting solely of 'all-or-nothing' rules, and ignores a different kind of legal standard, namely legal principles, which play an important and distinctive part in legal reasoning and adjudication. Some critics who have found this defect in my work have conceived of it as a more or less isolated fault which I could repair simply by including legal principles along with legal rules as components of a legal system, and they have thought that I could do this without abandoning or seriously modifying any of the main themes of the book. But Dworkin, who was the first to press this line of criticism, has insisted that legal principles could only be included in my theory of law at the cost of surrender of its central doctrines. If I were to admit that law consists in part of principles I could not, according to him, consistently maintain, as I have done, that the law of a system is identified by criteria provided by a rule of recognition accepted in the practice of the courts, or that the courts exercise a genuine though interstitial law-making power or discretion in those cases where the existing explicit law fails to dictate a decision, or that there is no important necessary or conceptual connection between law and morality. These doctrines are not only central to my theory of law but are often taken to constitute the core of modern legal positivism; so their abandonment would be a matter of some moment. …
6. JUDICIAL DISCRETION
The sharpest direct conflict between the legal theory of this book and Dworkin's theory arises from my contention that in any legal system there will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete.
If in such cases the judge is to reach a decision and is not, as Bentham once advocated, to disclaim jurisdiction or to refer the points not regulated by the existing law to the legislature to decide, he must exercise his discretion and make law for the case instead of merely applying already pre-existing settled law. So in such legally unprovided-for or unregulated cases the judge both makes new law and applies the established law which both confers and constrains his law-making powers.
This picture of the law as in part indeterminate or incomplete and of the judge as filling the gaps by exercising a limited law-creating discretion is rejected by Dworkin as a misleading account both of the law and of judicial reasoning. He claims in effect that what is incomplete is not the law but the positivist's picture of it, and that this is so will emerge from his own 'interpretive' account of the law as including besides the explicit settled law identified by reference to its social sources, implicit legal principles which are those principles which both best fit or cohere with the explicit law and also provide the best moral justification for it. On this interpretive view, the law is never incomplete or indeterminate, so the judge never has occasion to step outside the law and exercise a law-creating power in order to reach a decision. It is therefore to such implicit principles, with their moral dimensions, that courts should turn in those 'hard cases' where the social sources of the law fail to determine a decision on some point of law.
It is important that the law-creating powers which I ascribe to the judges to regulate cases left partly unregulated by the law are different from those of a legislature: not only are the judge's powers subject to many constraints narrowing his choice from which a legislature may be quite free, but since the judge's powers are exercised only to dispose of particular instant cases he cannot use these to introduce large-scale reforms or new codes. So his powers are interstitial as well as subject to many substantive constraints. None the less there will be points where the existing law fails to dictate any decision as the correct one, and to decide cases where this is so the judge must exercise his law-making powers. But he must not do this arbitrarily: that is he must always have some general reasons justifying his decision and he must act as a conscientious legislator would by deciding according to his own beliefs and values. But if he satisfies these conditions he is entitled to follow standards or reasons for decision which are not dictated by the law and may differ from those followed by other judges faced with similar hard cases.
Against my account of the courts as exercising such a limited discretionary power to settle cases left incompletely regulated by the law, Dworkin directs three main criticisms. The first is that this account is a false description of the judicial process and of what courts do in 'hard cases'. To show this Dworkin appeals to the language used by judges and lawyers in describing the judge's task, and to the phenomenology of judicial decision-making. Judges, it is said, in deciding cases and lawyers pressing them to decide in their favour, do not speak of the judge as 'making' the law even in novel cases. Even in the hardest of such cases the judge often betrays no awareness that there are, as the positivist suggests, two completely different stages in the process of decision: one in which the judge first finds that the existing law fails to dictate a decision either way; and the other in which he then turns away from the existing law to make law for the parties de novo and ex post facto according to his idea of what is best.
Instead, [Dworkin] lawyers address the judge as if he was always concerned to discover and enforce existing law and the judge speaks as if the law were a gapless system of entitlements in which a solution for every case awaits his discovery, not his invention. There is no doubt that the familiar rhetoric of the judicial process encourages the idea that there are in a developed legal system no legally unregulated cases. But how seriously is this to be taken? There is of course a long European tradition and a doctrine of the division of powers which dramatizes the distinction between Legislator and Judge and insists that the Judge always is, what he is when the existing law is clear, the mere 'mouthpiece' of a law which he does not make or mould. But it is important to distinguish the ritual language used by judges and lawyers in deciding cases in their courts from their more reflective general statements about the judicial process. Judges of the stature of Oliver Wendell Holmes and Cardozo in the United States, or Lord Macmillan or Lord Radcliffe or Lord Reid in England, and a host of other lawyers, both academic and practising, have insisted that there are cases left incompletely regulated by the law where the judge has an inescapable though 'interstitial' law-making task, and that so far as the law is concerned many cases could be decided either way.
One principal consideration helps to explain resistance to the claim that judges sometimes both make and apply law and also elucidates the main features which distinguish judicial from a legislature's law-making. This is the importance characteristically attached by courts when deciding unregulated cases to proceeding by analogy so as to ensure that the new law they make, though it is new law, is in accordance with principles or underpinning reasons recognized as already having a footing in the existing law. It is true that when particular statutes or precedents prove indeterminate, or when the explicit law is silent, judges do not just push away their law books and start to legislate without further guidance from the law. Very often, in deciding such cases, they cite some general principle or some general aim or purpose which some considerable relevant area of the existing law can be understood as exemplifying or advancing and which points towards a determinate answer for the instant hard case. This indeed is the very nucleus of the 'constructive interpretation' which is so prominent a feature of Dworkin's theory of adjudication. But though this procedure certainly defers, it does not eliminate the moment for judicial law-making, since in any hard case different principles supporting competing analogies may present themselves and a judge will often have to choose between them, relying, like a conscientious legislator, on his sense of what is best and not on any already established order of priorities prescribed for him by law.
Only if for all such cases there was always to be found in the existing law some unique set of higher-order principles assigning relative weights or priorities to such competing lower-order principles, would the moment for judicial law-making be not merely deferred but eliminated.
Dworkin's other criticisms of my account of judicial discretion condemn it not as descriptively false but for endorsing a form of law-making which is undemocratic and unjust. Judges are not usually elected and in a democracy, so it is claimed, only the elected representatives of the people should have law-making powers. There are many answers to this criticism. That judges should be entrusted with law-making powers to deal with disputes which the law fails to regulate may be regarded as a necessary price to pay for avoiding the inconvenience of alternative methods of regulating them such as reference to the legislature; and the price may seem small if judges are constrained in the exercise of these powers and cannot fashion codes or wide reforms but only rules to deal with the specific issues thrown up by particular cases. Secondly, the delegation of limited legislative powers to the executive is a familiar feature of modern democracies and such delegation to the judiciary seems a no greater menace to democracy. In both forms of delegation an elected legislature will normally have residual control and may repeal or amend any subordinate laws which it finds unacceptable.
It is true that when, as in the USA, the legislature's powers are limited by a written constitution and the courts have extensive powers of review a democratically elected legislature may find itself unable to reverse a piece of judicial legislation. Then ultimate democratic control can be secured only through the cumbrous machinery of constitutional amendment. That is the price which must be paid for legal constraints on government.
Dworkin makes the further accusation that judicial law making is unjust and condemns it as a form of retrospective or ex post facto law-making which is, of course, commonly regarded as unjust. But the reason for regarding retrospective law-making as unjust is that it disappoints the justified expectations of those who, in acting, have relied on the assumption that the legal consequences of their acts will be determined by the known state of the law established at the time of their acts. This objection, however, even if it has force against a court's retrospective change or overruling of clearly established law, seems quite irrelevant in hard cases since these are cases which the law has left incompletely regulated and where there is no known state of clear established law to justify expectations.
[MGH: Keep reading BELOW for Weekend Bonuses relating to Hart’s subject.]
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The Source:
H.L.A.Hart, The Concept of Law, edited by Penelope A. Bulloch and Joseph Raz, Clarendon Press Oxford 1961, 1994
WEEKEND BONUS EXHIBITS
STANFORD ENCYCLOPEDIA WROTE:
[MGH: Potential misunderstandings about glaringly simple truths.]
Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits. The English jurist John Austin (1790–1859) formulated it thus: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” [1832/1995:157]. The positivist thesis does not say that law’s merits are unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not determine whether laws or legal systems exist. Whether a society has a legal system depends on the presence of certain structures of governance, not on the extent to which it satisfies ideals of justice, democracy, or the rule of law. What laws are in force in that system depends on what social standards its officials recognize as authoritative; for example, legislative enactments, judicial decisions, or social customs. The fact that a policy would be just, wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law, and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for doubting it. According to positivism, law is a matter of what has been posited (ordered, decided, practiced, tolerated, etc.). Austin thought the thesis “simple and glaring”. While it is probably the dominant view among analytically inclined philosophers of law, it is also the subject of competing interpretations together with persistent criticisms and misunderstandings.
[Stanford Encyclopedia of Philosophy (2003; full revision in 2019)].
DWORKIN WROTE:
[MGH: Potential master rules for cutting through or chipping doughnut holes.]
The concept of discretion was lifted by the positivists from ordinary language, and to understand it we must put it back in habitat for a moment. What does it mean, in ordinary life, to say that someone ‘has discretion?’ The first thing to notice is that the concept is out of place in all but very special contexts. For example, you would not say that I either do or do not have discretion to choose a house for my family. It is not true that I have ‘no discretion’ in making that choice, and yet it would be almost equally misleading to say that I do have discretion. The concept of discretion is at home in only one sort of context; when someone is in general charged with making decisions subject to standards set by a particular authority. It makes sense to speak of the discretion of a sergeant who is subject to orders of superiors, or the discretion of a sports official or contest judge who is governed by a rule book or the terms of the contest. Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept. It always makes sense to ask, ‘Discretion under which standards?’ or ‘Discretion as to which authority?’ Generally the context will make the answer to this plain, but in some cases the official may have discretion from one stand-point though not from another. …
We criticize each other’s acts in terms of these standards, and there is no reason not to do so when the acts are within the center rather than beyond the perimeter of the doughnut of special authority. …
Hart does say that a master rule might designate as law not only rules enacted by particular legal institutions, but rules established by custom as well. He has in mind a problem that bothered other positivists, including Austin. Many of our most ancient legal rules were never explicitly created by a legislature or a court. When they made their first appearance in legal opinions and texts, they were treated as already being part of the law because they represented the customary practice of the community, or some specialized part of it, like the business community. (The examples ordinarily given are rules of mercantile practice, like the rules governing what rights arise under a standard form of commercial paper.) Since Austin thought that all law was the command of a determinate sovereign, he held that these customary practices were not law until the courts (as agents of the sovereign) recognized them, and that the courts were indulging in a fiction in pretending otherwise. But that seemed arbitrary. If everyone thought custom might in itself be law, the fact that Austin’s theory said otherwise was not persuasive.
Hart reversed Austin on this point. The master rule, he says, might stipulate that some custom counts as law even before the courts recognize it. But he does not face the difficulty this raises for his general theory because he does not attempt to set out the criteria a master rule might use for this purpose. It cannot use, as its only criterion, the provision that the community regard the practice as morally binding, for this would not distinguish legal customary rules from moral customary rules, and of course not all of the community’s long-standing customary moral obligations are enforced at law. If, on the other hand, the test is whether the community regards the customary practice as legally binding, the whole point of the master rule is undercut, at least for this class of legal rules. The master rule, says Hart, marks the transformation from a primitive society to one with law, because it provides a test for determining social rules of law other than by measuring their acceptance. But if the master rule says merely that whatever other rules the community accepts as legally binding are legally binding, then it provides no such test at all, beyond the test we should use were there no master rule. The master rule becomes (for these cases) a non-rule of recognition; we might as well say that every primitive society has a secondary rule of recognition, namely the rule that whatever is accepted as binding is binding. Hart himself, in discussing international law, ridicules the idea that such a rule could be a rule of recognition, by describing the proposed rule as ‘an empty repetition of the mere fact that the society concerned . . . observes certain standards of conduct as obligatory rules’.
Hart’s treatment of custom amounts, indeed, to a confession that there are at least some rules of law that are not binding because they are valid under standards laid down by a master rule but are binding – like the master rule — because they are accepted as binding by the community. This chips at the neat pyramidal architecture we admired in Hart’s theory: we can no longer say that only the master rule is binding because of its acceptance, all other rules being valid under its terms. …
So we cannot adapt Hart’s version of positivism by modifying his rule of recognition to embrace principles. No tests of pedigree, relating principles to acts of legislation, can be formulated, nor can his concept of customary law, itself an exception to the first tenet of positivism, be made to serve without abandoning that tenet altogether. …
I conclude that if we treat principles as law we must reject the positivists’ first tenet, that the law of a community is distinguished from other social standards by some test in the form of a master rule. We have already decided that we must then abandon the second tenet — the doctrine of judicial discretion — or clarify it into triviality. What of the third tenet, the positivists’ theory of legal obligation?
This theory holds that a legal obligation exists when (and only when) an established rule of law imposes such an obligation. It follows from this that in a hard case — when no such established rule can be found — there is no legal obligation until the judge creates a new rule for the future. The judge may apply that new rule to the parties in the case, but this is ex post facto legislation, not the enforcement of an existing obligation.
The positivists’ doctrine of discretion (in the strong sense) required this view of legal obligation, because if a judge has discretion there can be no legal right or obligation — no entitlement — that he must enforce. Once we abandon that doctrine, however, and treat principles as law, we raise the possibility that a legal obligation might be imposed by a constellation of principles as well as by an established rule. We might want to say that a legal obligation exists whenever the case supporting such an obligation, in terms of binding legal principles of different sorts, is stronger than the case against it. …
… Positivism, on its own thesis, stops short of just those puzzling, hard cases that send us to look for theories of law. When we read these cases, the positivist remits us to a doctrine of discretion that leads nowhere and tells nothing. His picture of law as a system of rules has exercised a tenacious hold on our imagination, perhaps through its very simplicity. If we shake ourselves loose from this model of rules, we may be able to build a model truer to the complexity and sophistication of our own practices.
[Ronald Dworkin, Taking Rights Seriously, 1977]
QUENTIN SKINNER ON QUINTILIAN
[MGH: Potential behavioural dynamics of discretion on the demand side.]
Whereas Cicero concentrates on the res publica, Quintilian also considers the duties of a bonus civis [good citizen] under a monarchy, and does so in a way that clearly made his analysis seem even more relevant to his Renaissance audience. As well as pleading ‘before judges who are obliged to give judgment according to the law’, we may find ourselves ‘in attendance upon the emperor or some other magistrate who has discretion to arrive at his own verdict’. When this happens, we must follow a different approach, presenting our arguments less in forensic style than in the manner of someone offering advice about the most useful course of action to pursue. Quintilian subsequently extends these remarks to include the whole question of the appropriate demeanour for a citizen to adopt in pleading before a prince. We must never forget that ‘it will by no means be appropriate even to use the same voice, the same gestures and the same bearing as we would when appearing before the senate, the people or their magistrates’.
[Quentin Skinner, Reason and Rhetoric in the Philosophy of Hobbes, Cambridge 1996]
Evolutions of social order from the earliest humans to the present day and future machine age.