Throwing light on the role of moral principles in the law: Further Reflections

Legal Theory

Volumn 8, Issue 1, 2002, Pages 115-143

  Kramer, Matthew H ^a  

^a CHURCHILL COLLEGE   (United Kingdom)

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EID: 31144455751     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325202081041     Document Type: Article

References (12)

1. Id atthew Kramer, How Moral Principles Can Enter into the Law, 6 LEGAL THEORY 83 (2000). I was responding there largely to Scott Shapiro, On Hart's Way Out, 4 LEGAL THEORY 469 (1998) (hereinafter cited as Shapiro, “Way”). I wish to thank Wil Waluchow, Emran Mian, and Jules Coleman for some enlightening exchanges of views on the issues discussed herein.
2. Scott Shapiro, Law, Morality, and the Guidance of Conduct, 6 LEGAL THEORY 127 (2000) (hereinafter cited as Shapiro, “Law”); Jules Coleman, Constraints on the Criteria of Legality, 6 LEGAL THEORY 171(2000) (hereinafter cited as Coleman, “Constraints”).
3. Slightly odd, in my view, is the suggestion that the notion of “applicability conditions” is any less clearly a technical concept than is the notion of a “partially exclusionary scope.”
4. Hart himself, in the essay where he analyzed legal norms as content-independent peremptory reasons for action, referred to the kind of situation that I am envisaging. His remarks quite plainly tally with my interpretation of his mature conception of authoritative norms: “[T]he giving of a promise is intended to be a reason not merely for the promisor doing the action when the time comes but for excluding normal free deliberation about the merits of doing it…. This is true even though the range of possible actions which one may validly promise to do is not unlimited and does not include grossly immoral actions or those intended to be harmful to the promisee.” H.L.A. Hart, Commands and Authoritative Reasons, in ESSAYS ON BENTHAM 243, 255 (Oxford: Clarendon Press, 1982).
5. H.L.A. Hart, THE CONCEPT OF LAW 199, 70 (Oxford: Clarendon Press, 1961) (hereinafter cited as Concept). See also H.L.A. Hart, Positivism and the Separation of Law and Morals, in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 49, 54-55 (Oxford: Clarendon Press, 1983). (The essay just cited was originally published in 71 HARV. L. REV. 593 [1958].) I am of course aware that laws in the United States are sometimes found to be unconstitutional as applied, rather than unconstitutional tout court.While highlighting the latter type of unconstitutionality-the type usually under consideration in the debates over Inclusive Legal Positivism-Iamin no way denying the former.
6. H.L.A. Hart, Postscript, in 2 THE CONCEPT OF LAW 238, 247 (Oxford: Clarendon Press, 1994).
7. Among the relevant publications by Coleman are the following: Incorporationism, Conventionality, and the Practical Difference Thesis, 4 LEGAL THEORY 381 (1998) (hereinafter cited as Coleman, “Incorporationism”); Second Thoughts and Other First Impressions, in ANALYZING LAW 257, 258-78 (Brian Bix ed., Oxford: Oxford University Press, 1998); Authority and Reason, in THE AUTONOMY OF LAW 287 (Robert George ed., Oxford: Clarendon Press, 1996) (hereinafter cited as Coleman, “Authority”); Negative and Positive Positivism, in MARKETS, MORALS, AND THE LAW 3, 12-27 (Cambridge: Cambridge University Press, 1988). For Soper's pioneering contribution, see his Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute, 75 MICH. L. REV. 473, 509-15 (1977).
8. I have argued elsewhere that Hart's discussion of the minimum content of natural law is fully consistent with legal positivism's insistence on the separability of law and morality. See my IN DEFENSE OF LEGAL POSITIVISM ch. 9 (Oxford: Oxford University Press, 1999).
9. At one juncture, Shapiro points out that a robustly Incorporationist Rule of Recognition could obtain in a legal system with only two judges, “both of whom are twin sisters, attend the same church[,] and are like-minded on ethical issues” (Shapiro, “Law,” 156). As is attested by my earlier article's several references to the possibility of a robustly Incorporationist Rule of Recognition in the legal system of an extremely small and homogeneous society, I have no wish whatsoever to dispute the truth of Shapiro's observation. All the same, his observation is irrelevant to the sorts of societies on which I am concentrating. With reference to medium-scale and largescale societies, where multitudes of executive/administrative officials as well as judicial officials are obligated and empowered to engage in the activity of law-ascertainment, a scenario of a twojudge legal regime (with no executive/administrative officials, apparently) is perilously close to the Austinian depiction of the sovereign as a single person. Hart aptly labeled the latter depiction as “a disastrously confusing piece of mythology” (Hart, Concept, 110).
10. Ronald Dworkin, Id. note 8, at 56, 62-63.
11. For some suggestive remarks on this point, see Ronald Dworkin, Is There Really No Right Answer in Hard Cases? in A MATTER OF PRINCIPLE 119, 128-30 (Cambridge, MA: Harvard University Press, 1985).
12. I should respond briefly to Kenneth Himma, Incorporationism and the Objectivity of Moral Norms, 5 LEGAL THEORY 415 (1999), which mounts several criticisms of my Coming to Grips with the Law: In Defense of Positive Legal Positivism, 5 LEGAL THEORY 171 (1999). Although I do not disagree with many of Himma's substantive positions, I am deeply puzzled by his apparent belief that those positions serve to rectify missteps in my article. Himma persistently endeavors to draw my attention to points (such as the nonequivalence of moral realism and moral objectivism) that were in fact repeatedly emphasized in my article. Exactly why he offers this superfluous instruction is quite unclear. Still, discovering that one's own contentions have been reaffirmed by a critic is rather encouraging-even though the reaffirmations have strangely been presented as corrections.