1. Shapiro, on Hart's way out
1. First Argument
a. Inclusive legal positivism won't work because having rules of
recognition (RoR) that include morality as part of the law means
that the rules/laws validated by them won't make a practical
difference.
b. Put differently: If you accept a RoR that says something like
'morality is law' then the laws that are validated by it, which are
moral rules, don't make a practical difference.
i.
Green: BUT Shapiro's argument proves too much, for the
above example:
1. Imagine an RoR - what congress says is law
2. By virtue of accepting the RoR, you've accepted the
infinite number of possible laws that's Identified in
it (Securities & Exchange act, an Act like the SEA
but with slightly different content, etc)
3. So according to this, you don't really need laws.
You've accepted the RoR, and everything that is law
is identified in the RoR, so you only need facts that
trigger RoR, th laws themselves don’t make a
practical difference.
a. Facts (semantically) can be as simple as
person x did action y or congress has said
that z is law.
4. From this it follows that either
a. you don't need laws at all except for the
RoR, or
b. there's something wrong with his argument
2. Second Argument
a. This is directed at the form of inclusive legal positivism of in
which Morality is a necessary, not sufficient, condition for law.
b. Put differently: Legal rules are valid UNLESS they violate a moral
principle (moral principles is necessary condition).
i.
Shapiro's problem - in order to think about whether the law
is valid, you have to refer to the same reasons for action
that the law is meant to displace.
1. E.g. Congress's statutes on employees' pay are valid
law UNLESS they are grossly unfair (moral
principle)
2. But gross unfairness is one of the reasons for action
the law was meant to displace
ii.
Green’s question:
1. Why not say that Congress is preempting certain
reasons for action but not gross unfairness? Why
assume that gross unfairness is one of the reasons
for action the law was meant to displace?
2. Shapiro’s response: the problem is that the validity
of the law, its very existence as law, depends upon
its not being grossly unfair. There is no problem
with a valid law that does not displace the reason
for action of gross unfairness. But such a law does
not have its validity depend upon its not being
grossly unfair.
3. In saying that the law is not valid if it is grossly
unfair, it is suggested that the law preempts all
reasons for action including gross unfairness
.
iii.
But if that’s true, then in requiring one to
consider gross unfairness, one is required to
consider the same reasons for action the law
is meant to displace
For the exclusive legal positivist in contrast, the
constitutional provision that says that congress’s statutes on
employees’ pay are valid unless they are grossly unfair
must be reinterpreted
1. Not being grossly unfair is not a condition for valid
law. Instead, congress’s statutes are valid but do
not preempt the reason for action of gross
unfairness
2. The equal protection clause would be another
example. Although this looks like a condition for
the validity of law, for the exclusive legal positivist
it must be reinterpreted. In effect the EPC is
limiting the preemptive scope of every law that
Congress passes. It's not a necessary condition for
valid law, it's simply a limitation on the preemptive
force of valid laws.
a. So the law can be valid even though it
violates equal protection, but it can't
preempt the reasons for action tied to equal
protection.
b. To say otherwise is to argue that the law is
meant to preempt all other reasons of action,
including other law/morals. That's
incoherent bc it requires you to take into
account the things that the law is supposed
to preempt.
3. Doctor example
a. "Take the blue pill." That order preempts all
of your medical reasons for action. That's a
valid medical directive, even if it doesn't
preempt ALL reasons for action (e.g. gun to
head, religious objections, etc).
i.
Exclusive legal positivist - the
directive is valid, but it's only
partially preemptive of your reasons
for action
b. Imagine that a Dr. said instead “ ‘Take the
Blue Pill’ – this directive is valid if isn’t
overridden by nonmedical (e.g. religious)
considerations
i.
This doesn't work because you have
to consider those non-medical
reasons for action to determine the
validity of directive. Although the
doctor appeared to have condition
the validity of his directive upon its
not violating non-medical reasons for
action, what he really did was issued
a valid medical directive that
preempted only medical and not nonmedical reasons for action.
c. Reality - it's a valid medical directive right
now, to the extent that it displaces medical
reasons. But it's not dependent on or
preemptive of things that a medical directive
doesn't displace (e.g. gun to head, religion).
4. In the same way, law must be valid without
morality
.
But the function of provisions that refer to
morality like the equal protection clause is
that they limit the preemptive scope of the
law to not include those relevant moral
considerations
a. In our legal system the isolation of the
preemptive scope of the law is probably
only with respect and judges
.
If Congress passes a statute that
preempts many reasons for action
that the judge might consider
otherwise. But because of the equal
protection clause equal protection is
a moral reason for action that is not
preempt
i.
The judge can (indeed must)
consider that reason for action in
determining whether he should strike
down the law.
3. Sum up: the inclusive & exlclusive legal positivist agree on whether
judges look to morality to decide legal questions, but they disagree as to
which part of the law is LAW and which part is only morality.
2. Brink, Legal theory
1. Theory of hard cases among positivists - gap in the law that a judge has to
fill in (acting like a legislator)
a. Created by the semantic properties of the words in the legal rules
i.
e.g. no vehicles in the park - include stroller?
b. Meaning of a word is exhausted by the criteria for using the word
that people accept at a particular moment
i.
Water 1. Then: liquid, transparent, potable;
2. Now: H2O
3. Intentionalists with these positions are talking past
each other
c. Extensionalists argue that the meaning of the term is not the same
as the criteria people use in connection with the term
.
Although people thought water in the past was a
transparent tasteless potable liquid, they were wrong about
the meaning of their own word
i.
Water meant H2O
d. Under an Extensionalists theory Fidelity to the meaning of the
constitution does not necessarily = fidelity to what was in the
minds of the founders
i.
The meaning of the term can outstrip what's in the minds of
the people who use the term at the time they use it
ii.
e.g. gold standard - heavy yellow metal v. atomic AU gold;
toxic - what's actually toxic, not what ppl thought was toxic
at the time
e. Natural kind v. Moral terms
i.
To say that someone is incorrect when they argue that, for
example, slavery is just, is to imply that people share a
concept of justice, it even though they might have different
criteria for using the concept
ii.
Scalia - ppl who wrote constitution wouldn't have called
execution cruel & unusual
1. Specific v. general intent to refer to a given criteria
(e.g. specific - water=H2O v. general - water =
whatever I'm pointing to at this moment)
2. Presumption in favor of specific intent would
constrain judges in their discretion, but has other
negative consequences too