Ryu and Sewell on The Hart-Dworkin Debate

Angelo Ryu and Trenton Sewell, both of the University of Oxford, have published The Hart-Dworkin Debate.

This encyclopedia entry discusses the Hart-Dworkin debate, understood as the literature developed around the viability of Hartian positivism in light of the arguments Dworkin either laid out or inspired. The focus is on two arguments: the argument from principles and the argument from theoretical disagreement. First, can Hart adequately account for the role of principles in law? The entry considers three variants of this argument. Second, can Hart adequately account for the existence of law in practices whose officials disagree on why certain empirical facts make a given legal proposition true? The entry considers both semantic and non-semantic variants of this argument.

Download the entry from SSRN at the link.

Bernick on Horrifying Jurisprudence @NIU_Law

Evan D. Bernick, Northern Illinois University College of Law, has published Horrifying Jurisprudence as a Northern Illinois University College of Law Legal Studies Research Paper. Here is the abstract.

This Essay uses the horror video game Alan Wake 2 as a jumping-off point to discuss and critique horrifying jurisprudence—accounts of law that evoke the emotion of horror. By centering on a horror writer whose storytelling shapes the real world, Alan Wake 2 invites analogies to legal interpretation. Legal interpretation often involves storytelling and produces real-life horrors. No legal philosopher captures the narrative and horrific elements of lawmaking as vividly as Robert Cover. Challenging Ronald Dworkin’s optimistic account of judges as chain-novelists who can creatively bend the arc of the law towards justice, Cover contends that judges are generally uncreative members of violence-dispensing organizations. They spend most of their time killing—physically and metaphysically, destroying bodies and entire worlds. More horrific still is the vision articulated by the most memorable character in Cormac McCarthy’s Blood Meridian, Judge Holden. The Judge embraces as inevitable the killing that Cover laments and denies a hope that Cover left open—that of messianic legal transformation from without the system. Although Alan Wake 2 isn’t about jurisprudence, it depicts transformative acts of democratic storytelling for which there are analogues in ongoing resistance to unjust legal systems. As horrific as legal systems can be, things are not so bad as Cover and McCarthy suggest. We can transform what might appear to be inescapable loops of domination into empowering spirals. We don’t have to create horrors.

Download the Essay from SSRN at the link.

Lehtimäki on Two Tales of Finding the Content of Law @hybridial

Mika Lehtimäki, University of Oxford Faculty of Law, has published Two Tales of Finding the Content of Law. Here is the abstract.

The paper examines two different views of understanding the content of law and truth of our legal propositions, arguing that this largely depends on our point of view on law. However, furthering our understanding of the nature of law also depends on our ability to elucidate law’s relation to morality, the nature of normative claims made by law and the relationship between validity of legal norms and their justification. These factors determine and restrict the way we can ascertain the content of law. I examine in the paper, on the one hand, Joseph Raz’s statement on the scope of justifiable implication of the content on authoritative directives and intentions on law-makers and, on the other hand, Ronald Dworkin’s account on the role of integrity in identification and justification of legal norms. This means comparing Raz's argument that identification of law cannot rely on substantive political or moral argumentation and Dworkin’s account of law as integrity, which relies inherently on political morality, understanding the content of law as transparent to the scheme of principles justifying our authoritative directives. I argue in this paper that Raz’s and Dworkin’s views are incompatible concerning their relationships to morality, their justificatory aspects and ascertainment of legal content. However, they show that conceptual truths about law should correspond to our actual legal practices and that there may be space for refinements in their respective theories. But this leads to pluralistic views on law that remain to be explored.

Download the article from SSRN at the link.

ICYMI: Davison-Vecchione on How the EU Is Like the Marvel Universe @dejdavisonvec

ICYMI: Daniel Davison-Vecchione, Department of Sociology, University of Cambridge, has published How is the EU like the Marvel Universe? Legal Experientialism and Law as a Shared Universe at 30 Law and Literature 185 (2017). Here is the abstract.

This article considers the ontological and epistemological questions about European Union (EU) law raised by the phenomenon known as constitutional pluralism, and the challenge this presents to theories of law based on the concept of a legal system. It does so by heuristically comparing the EU legal order and the “Marvel Universe” of Marvel Comics, as both an extension and critique of Ronald Dworkin's analogy between interpreting law and writing a chain novel. The article explicates the concept of a “storyworld” in narrative theory and discusses the Marvel Universe's significance in this respect. It then outlines the similarities between EU law and the Marvel Universe, using the concept of a storyworld to build and apply a theoretical framework that can move beyond orthodox views of constitutional pluralism. Lastly, the article uses these insights to begin laying the groundwork for a new theory of law termed “legal experientialism,” which understands law as an irreducible world that is both experienced and constructed through our collective interpretive practices.

Schlag on Reason as a Fundamental Concept in International Law @ColoLaw

Pierre Schlag, University of Colorado Law School, is publishing Reason in Fundamental Concepts for International Law (Jean d'Aspremont & Sahib Singh, eds., Edward Elgar Publishing, 2018). Here is the abstract.

This brief essay, prepared for a compendium of fundamental concepts in international law, explores the character of reason in law. The particular focus here is on the challenges that reason confronts when faced with a law whose authorities, aesthetics, and self-idealization are resistant to reason. By focusing on a close reading of some passages from Ronald Dworkin’s “Law’s Empire,” the essay shows how the “partisans of reason” who seek to represent law as a reasoned endeavor rhetorically prepare their grounds by engaging in a suspect reductionism and purification. That is to say, they recast law into reason’s idea of law (a pale imitation of the former). With this rhetorical work out of the way, the partisans of reason proceed to show that, in law, reason rules. This widespread and largely successful substitution of reason’s image of law for law itself often goes unnoticed. Not only does this substitution do damage to the collective intellect, but to reason itself. And this — at a political-legal moment when a rigorous and widespread understanding of the uses and limits of reason might be of considerable help.

Download the essay from SSRN at the link.

Adrian Vermeule's New Book on Law's Abnegation: From Law's Empire To Administrative State @avermeule

ICYMI: Adrian Vermeule, Professor of Law, Harvard University, has published Law’s Abnegation: From Law’s Empire to the Administrative State (Harvard University Press, 2016). Here from the publisher's website is a description of the book's contents.

Ronald Dworkin once imagined law as an empire and judges as its princes. But over time, the arc of law has bent steadily toward deference to the administrative state. Adrian Vermeule argues that law has freely abandoned its imperial pretensions, and has done so for internal legal reasons.freely abandoned its imperial pretensions, and has done so for internal legal reasons. In area after area, judges and lawyers, working out the logical implications of legal principles, have come to believe that administrators should be granted broad leeway to set policy, determine facts, interpret ambiguous statutes, and even define the boundaries of their own jurisdiction. Agencies have greater democratic legitimacy and technical competence to confront many issues than lawyers and judges do. And as the questions confronting the state involving climate change, terrorism, and biotechnology (to name a few) have become ever more complex, legal logic increasingly indicates that abnegation is the wisest course of action. As Law’s Abnegation makes clear, the state did not shove law out of the way. The judiciary voluntarily relegated itself to the margins of power. The last and greatest triumph of legalism was to depose itself.

Wendel on Sally Yates, Ronald Dworkin, and the Best View of the Law

W. Bradley Wendel, Cornell University School of Law, is publishing Sally Yates, Ronald Dworkin, and the Best View of the Law in Michigan Law Review Online. Here is the abstract.

In her letter to President Trump, Acting Attorney General Sally Yates stated that her refusal to enforce the executive order banning travel from seven Muslim-majority countries was "informed by [her] best view of what the law is after consideration of all the facts." Yates's claim that legal advisor should be informed by the best view of the law sounds very much like the position of Ronald Dworkin, who argued that a judge should determine the legal rights and duties of the litigants by constructing the best possible interpretation of the principles of justice, fairness, and procedural due process, considered from the standpoint of the community's political morality. I do not know whether Yates was thinking about Dworkin when she wrote her letter, but I wish to use this essay to seek to persuade legal advisors – whether to the government or a private client – that their role is not to construct an interpretation of the law that represents the best constructive interpretation of political morality. There are two reasons for denying that lawyers should seek the best view of the law. First, Dworkin's jurisprudential vision has always sat uncomfortably with the fact of moral pluralism. He has very little to say about the possibility that a faithful reconstruction of the community's moral principles will establish that there are multiple moral narratives potentially bearing on the same question of legal interpretation. The second reason is the need to preserve the legitimacy of law as a normative system that resists reduction to either political preferences or raw power. The capacity of the legal profession to resist the naked exercise of power depends on the perception that there is a difference between what is lawful and what is in someone's interests, whether those of the President or of some imagined cabal of liberal opponents. By referring to the obligation to "seek justice and stand for what is right," Yates left herself open to the criticism that she was acting as a partisan who objected to Trump's executive order on policy ground, not an impartial gatekeeper advising the administration on the legality of its proposal.

Download the article from SSRN at the link.

Kramer on Moral Realism as a Moral Doctrine

Matthew H. Kramer, Churchill College, Cambridge University; University of Cambridge - Faculty of Law, has published There's Nothing Quasi About Quasi-Realism: Moral Realism as a Moral Doctrine as University of Cambridge Faculty of Law Research Paper No. 42/2016. Here is the abstract.

This paper seeks to clarify and defend the proposition that moral realism is best elaborated as a moral doctrine. I begin by upholding Ronald Dworkin’s anti-Archimedean critique of the error theory against some strictures by Michael Smith, and I then briefly suggest how a proponent of moral realism as a moral doctrine would respond to Smith’s defense of the Archimedeanism of expressivism. Thereafter, this paper moves to its chief endeavor. By differentiating clearly between expressivism and quasi-realism (or moral realism as a moral doctrine), the paper highlights both their distinctness and their compatibility. In so doing, it underscores the affinities between Blackburnian quasi-realism and moral realism as a moral doctrine. Finally, this paper contends ─ in line with my earlier work on these matters ─ that moral realism as a moral doctrine points to the need for some reorienting of meta-ethical enquiries rather than for the abandoning of them.

Download the article from SSRN at the link.

Balkin's Review of Fleming's Fidelity to Our Imperfect Constitution

Jack M. Balkin, Yale Law School, is publishing History, Rights, and the Moral Reading in the Boston University Law Review (2016). Here is the abstract.

James Fleming's book, Fidelity to Our Imperfect Constitution, argues for a "moral reading" of the Constitution, a phrase made famous by Ronald Dworkin. But Fleming's version of the moral reading differs from Dworkin's in two important ways. First, Fleming argues that Dworkin's attempt to explain and justify judicial protection of constitutional rights in terms of democratic self-government is unduly strained. Moreover, in the quest to re-characterize all of these rights as supporting democracy, there is the danger that we will distort their most valuable features. I show why Fleming's insight is correct. I use the example of the First Amendment's guarantees of speech and press, which many scholars have assumed offers the strongest case for a democracy-based justification of rights. Second, Dworkin spent relatively little time worrying about how historical argument figured into a moral reading of the Constitution, other than to criticize originalism. Building on Dworkin's argument that good interpretations must satisfy the two dimensions of "fit" and "justification," Fleming asserts that history can be quite important to moral readings. I argue that Fleming offers a better account than Dworkin of why history matters -- and should matter -- to a moral reading of the Constitution. I show how his account connects with my own work on how lawyers use history in constitutional argument.

Download the text of the review from SSRN at the link.

Legal Constitutionalism In the Irish Constitutional Tradition

Tom Hickey, Dublin City University, is publishing Judges as God's Philosophers: Re-Thinking 'Principle' in Constitutional Adjudication in Judges, Politics and the Irish Constitution (L. Cahillane, J. Gallen and T. Hickey (eds.), Manchester University Press, 2016). Here is the abstract.

This chapter identifies and critiques two strands of 'legal constitutionalism' in the Irish constitutional tradition: a classical 'minimal state' strand and a contemporary Rawlsian/Dworkinian strand. It argues against both on the basis that, in different ways, they fail to account for the political and contestable nature of rights. The chapter argues for a model of constitutionalism that accounts for the principled contribution that judicial review can make to public deliberation and outcomes, but that similarly accounts for its potential weaknesses.

Download the chapter from SSRN at the link.

Mercy and Law

Daniel Peixoto Murata, University of Sao Paulo, has published Can Javert Forgive Valjean? - The Myth of Merciful Law. Here is the abstract.

I intend in this paper to discuss the complex relation between the ideas of mercy and law. First, I will attempt to present an account of how mercy works and the possibility of distinguishing it from forgiveness, for then explain why by its own nature mercy is incompatible with law. Secondly, I will depict law as an argumentative practice regarding the interpretation of rights, and how rights by their very structure aren’t receptive to mercy’s logics. Finally, I will briefly say why I believe that even if merciful law is a myth, law can still claim legitimacy in an unjust world.

Download the article from SSRN at the link. "A shorter and simpler version of this essay appeared at the Glasgow University Law Society Law Review 2014-2015, as “A Dworkinian Approach to Law and Mercy”."--Author.

The Influence of Robert M. Cover

Roy Andrew Partain, Soongsil College of Law, has published Ecologies of Paideic Law: Environmental Law and Robert M. Coverʼs Jurisprudence of 'Nomos and Narratives' , at 24 Hanyang Law Review 423 (2013). Here is the abstract.

This article provides an extensive introduction to the legal philosophy of Robert M. Cover and begins a discussion on how his principles of jurisgenesis could be applied in environmental law. This article suggests that a deeper appreciation of Cover’s jurisprudence could better assist in the development of climate change legislation.
Robert M. Cover was a legal scholar at Yale Law School who died in 1986, tragically early in his career, leaving many aspects of his innovative jurisprudence incomplete. Despite those circumstances, he has become one of the top-most cited legal scholars in American jurisprudence. In particular, he is best known for his “Nomos and Narratives” theory of law. Cover’s legal philosophy holds that the laws and narrative traditions of a culture cannot be critically separated, that they must be understood to operate intertwined. Further, he argued certain aspects of the narrative cultures must be included in the concept of law, in the corpus juris, alongside more explicit forms such as constitutions, legislations, and judicial decisions. Thus, Cover argued, legal scholars have been overly focused on one type of law to the neglect of other types of law.

Cover introduced the concept of paideic jurisgenesis and of jurispathic judges to counter the legal theories of H.L.A. Hart, Hans Kelsen, and Ronald Dworkin. Cover’s theory provides a more complete framework to answer Dworkin’s question of how judges resolve ‘hard’ legal cases. A ‘hard’ case exists when both sides of an adversarial courtroom can provide sound legal support for their arguments; Dworkin posited that jurisprudence is simply the investigation of how judges resolve that conflict. Whereas Hart, Kelsen and Dworkin saw a shortage of law, of a need to explain how law was created by judges, Cover concluded to the contrary that law actually existed in over-supply and that judges act to eliminate surplus laws to resolve ‘hard’ problems.

Cover balanced the development of paideic laws, i.e. narratively evolved laws, with the controls of imperial, i.e. governmental, legislation and jurispathic judges. Cover named this universe of legal meaning and context-rich interpretations ‘nomos’, borrowing from the Greek language for ‘law’. Cover proposed that social groups created laws via social cohesive narratives of obligations, coercion, and socially-endorsed enforcement. But this organic process of legislation could create too many overlapping legal systems as each society contains multiple social groups. Legislatures were seen by Cover as providing a democratic process to select Kelsenian Grundnormen to better align the diverse legal narratives of multiple social groups. Cover then saw the key role of judges as jurispathic, to eliminate legal chaos when too much law exists.

A legal scholar, in Cover’s world, has two roles. First, to observe and appreciate the organic and paideic narratives that create the laws in the legal scholar’s nomos-verse. Second, to provide the legal scientific understandings necessary to support the judiciary’s jurispathic duties. In both cases, a legal scholar has the opportunity to engage and interact in the development of law. A legal scholar can become engaged in the development of the paideic narratives and social dialogs that create paideic law. A scholar can assist in the development of the imperial legal structures that provide stability and unity to the social group. Cover was particularly interested in the development of Human Rights and Civil Rights laws, but his theories and techniques have found applications in many other areas of law.

This article provides a preliminary example of Cover’s theories in regards to the development of climate change legislation. The article takes notice of the historical problems to develop and enforce climate change legislation. The article examines Cover’s theories to uncover the practical legal and policy tools suggested by his theories of jurisprudence. The article suggests a list of methods wherein Cover’s theories could be applied to climate change legislation.

Donwload the article from SSRN at the link. 

Jeremy Waldron and Jus Gentium

Kevin Toh, San Francisco State University, is publiishing Legal Relativism and Jus Gentium in the APA Newsletter. Here is the abstract.

In "Partly Laws Common to All Mankind," Jeremy Waldron advocates what could be called "the doctrine of jus gentium," according to which, roughly, courts sitting in one country must give some weight in their legal deliberations to some principles that have been accepted or adopted by the legal systems of many other countries. Waldron's arguments for this doctrine raise questions and worries about exactly what the content of the doctrine is, and what justification could be offered for it. Several different versions of the doctrine come into the picture as Waldron argues for jus gentium, and while some versions are plausible, some others are not. Unfortunately, the most plausible of the versions seems to be excluded by Waldron's commitment to a Dworkinian conception of the nature of law. This paper ends up recommending that Waldron drop his commitment to that conception of the nature of law in favor of the plausible version of the doctrine of jus gentium.
This paper is a contribution to a symposium on Jeremy Waldron's work organized by the American Philosophical Association. A revised version will be published in a forthcoming issue of the APA Newsletter on Philosophy and Law, with Waldron's reply.

Download the full text of the essay from SSRN at the link. 

Historicizing Ronald Dworkin

Mark Walters, Queen's University Faculty of Law, has published "Hercules as Legal Humanist: Historicizing Dworkin's Jurisprudence," as Queen's University Legal Studies Research Paper 07-01. Here is the abstract.

Although H.L.A. Hart presented his legal theory "as part of the history of an idea", the theory of law developed by Hart's most famous critic, Ronald Dworkin, seems to be without a history. Dworkin does insist that his theory of law, "law-as-integrity", explains traditional common law method. But he has shown no real interest in the history of theorizing about that method, in part because he wishes to distance his own work from traditional schools of natural law. In this article, I revisit early theories of common law reasoning and show how, despite key differences, these theories share much in common with Dworkin's jurisprudence. Writers on the early-modern common law embraced insights drawn from Renaissance humanism to reach conclusions about the relationship between law and philosophy, the importance of coherence, interpretation and truth, and integrity, equality and the case-law method that foreshadow Dworkin's theory of law-as-integrity. If jurisprudence really is an aspect of normative political theory, as Dworkin suggests, then theories of law should be located within evolving traditions of political and intellectual thought. Law-as-integrity has a history to which it can lay claim, and that history is located in the humanist explanations of the early-modern common law.

Download the entire paper from SSRN here.