Law as justice

Social Philosophy and Policy

Volumn 18, Issue 1, 2001, Pages 115-145

  Moore, Michael S ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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[No Author keywords available]

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EID: 4043061172     PISSN: 02650525     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0265052501181057     Document Type: Article

References (108)

1. Michael Moore, "Law as a Functional Kind," in Robert George, ed., Natural Law Theories (Oxford: Oxford University Press, 1992), reprinted as chap. 9 of Michael Moore, Educating Oneself in Public: Critical Essays in Jurisprudence (Oxford: Oxford University Press, 2000).
2. Michael Moore, "Law as a Functional Kind," in Robert George, ed., Natural Law Theories (Oxford: Oxford University Press, 1992), reprinted as chap. 9 of Michael Moore, Educating Oneself in Public: Critical Essays in Jurisprudence (Oxford: Oxford University Press, 2000).
3. My views on the metaethical thesis are presented in Michael Moore, "Moral Reality," Wisconsin Law Review 1982, no. 6 (November/December 1982): 1061-156; Michael Moore, "Moral Reality Revisited," Michigan Law Review 90, no. 8 (August 1992): 2424-533; and Michael Moore, "Good without God," in Robert George, ed., Natural Law, Liberalism, and Morality (Oxford: Oxford University Press, 1995).
4. My views on the metaethical thesis are presented in Michael Moore, "Moral Reality," Wisconsin Law Review 1982, no. 6 (November/December 1982): 1061-156; Michael Moore, "Moral Reality Revisited," Michigan Law Review 90, no. 8 (August 1992): 2424-533; and Michael Moore, "Good without God," in Robert George, ed., Natural Law, Liberalism, and Morality (Oxford: Oxford University Press, 1995).
5. My views on the metaethical thesis are presented in Michael Moore, "Moral Reality," Wisconsin Law Review 1982, no. 6 (November/December 1982): 1061-156; Michael Moore, "Moral Reality Revisited," Michigan Law Review 90, no. 8 (August 1992): 2424-533; and Michael Moore, "Good without God," in Robert George, ed., Natural Law, Liberalism, and Morality (Oxford: Oxford University Press, 1995).
6. Moore, "Law as a Functional Kind."
7. These attributes are the concern of H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961); and Joseph Raz, The Concept of a Legal System (Oxford: Clarendon Press, 1970).
8. These attributes are the concern of H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961); and Joseph Raz, The Concept of a Legal System (Oxford: Clarendon Press, 1970).
9. Herbert Hart nicely distinguished this concern about laws from more general concerns about legal systems, in his "Positivism and the Separation of Law and Morality," Harvard Law Review 71, no. 4 (February 1958): 593-629.
10. On Bentham's distaste for the common law, see A. W. B. Simpson, "The Common Law and Legal Theory," in A. W. B. Simpson, ed., Oxford Essays in Jurisprudence, 2d ser. (Oxford: Oxford University Press, 1973); and Gerald Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1984).
11. On Bentham's distaste for the common law, see A. W. B. Simpson, "The Common Law and Legal Theory," in A. W. B. Simpson, ed., Oxford Essays in Jurisprudence, 2d ser. (Oxford: Oxford University Press, 1973); and Gerald Postema, Bentham and the Common Law Tradition (Oxford: Clarendon Press, 1984).
12. When Michael Detmold urges the unity of law and morality, this is what he seems to have in mind. See M. J. Detmold, The Unity of Law and Morality (London: Routledge and Kegan Paul, 1987).
13. On areas of law, see Michael Moore, "A Theory of Criminal Law Theories," in Dan Friedmann, ed., Tel Aviv University Studies in Law, vol. 8 (Tel Aviv, Israel: Tel Aviv University Press, 1990), revised and reprinted as chap. 1 of Moore, Placing Blame: A General Theory of the Criminal Law (Oxford: Clarendon Press, 1997).
14. On areas of law, see Michael Moore, "A Theory of Criminal Law Theories," in Dan Friedmann, ed., Tel Aviv University Studies in Law, vol. 8 (Tel Aviv, Israel: Tel Aviv University Press, 1990), revised and reprinted as chap. 1 of Moore, Placing Blame: A General Theory of the Criminal Law (Oxford: Clarendon Press, 1997).
15. Augustine, De Libero Arbitrio, I.v.11.
16. Thomas Aquinas, Summa Theologiae, I-II, q. 90, a. 4, in Anton C. Pegis, Basic Writings of Saint Thomas Aquinas (New York: Random House, 1945), 2:746-47.
17. Thomas Aquinas, Summa Theologiae, I-II, q. 90, a. 4, in Anton C. Pegis, Basic Writings of Saint Thomas Aquinas (New York: Random House, 1945), 2:746-47.
18. We can contrast this position with the legal positivism of Austin and Bentham, for whom there were two kinds of obligations: moral obligations and legal obligations. For them, legal obligations were not a kind of moral obligation; legal obligations were simply liability to legal sanctions. This is a very Pickwickian sense of "obligation," because in no real sense is one obligated by threats of painful consequences. As Hart put it, one may be obliged to yield to such threats without being obligated to yield to them. See Hart, The Concept of Law.
19. John Austin argues against a natural law position by using this sort of semantic analysis to analyze the meaning of "law." John Austin, The Province of Jurisprudence Determined, ed. H. L. A. Hart (New York: Noonday Press, 1954).
20. See, for example, Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986).
21. This is Hart's method in The Concept of Law.
22. In contemporary jurisprudence, this approach is most closely associated with Joseph Raz. See particularly Raz, Practical Reason and Norms (Oxford: Oxford University Press, 1975).
23. These two roles are worth distinguishing for purposes of argument even if one accepts Heidi Hurd's thesis that the obligation of judge and of citizen correspond with one another. Heidi Hurd, Moral Combat (Cambridge: Cambridge University Press, 1999). There are expository advantages served if we separate the roles because in various instances the tugs of intuition are different for the two roles.
24. See, for example, Thomas Hobbes, Leviathan (Oxford: Clarendon Press, 1909).
25. See Aquinas, Summa Theologiae; and John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980).
26. See Aquinas, Summa Theologiae; and John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980).
27. See Dworkin, Law's Empire.
28. See Lon Fuller, The Morality of Law, 2d ed. (New Haven, CT: Yale University Press, 1969).
29. This is the example used in the Hart/Fuller debate. Hart, "Positivism and the Separation of Law and Morality"; Lon Fuller, "Positivism and Fidelity to Law - A Reply to Professor Hart," Harvard law Review 71, no. 4 (February 1958): 630-72.
30. This is the example used in the Hart/Fuller debate. Hart, "Positivism and the Separation of Law and Morality"; Lon Fuller, "Positivism and Fidelity to Law - A Reply to Professor Hart," Harvard law Review 71, no. 4 (February 1958): 630-72.
31. See Michael Moore, "Precedent, Induction, and Ethical Generalization," in Laurence Goldstein, ed., Precedent in Law (Oxford: Oxford University Press, 1988).
32. See Moore, "A Theory of Criminal Law Theories."
33. Ruth Gavison suggests this objection. Ruth Gavison, "Natural Law, Positivism, and the Limits of Jurisprudence: A Modern Round," Yale Law Journal 91, no. 6 (May 1982): 1266-67. See also Daniel Robinson, "Antigone's Defense: A Critical Study of Natural Law Theory: Contemporary Essays," Review of Metaphysics 45, no. 2 (December 1991): 382.
34. Ruth Gavison suggests this objection. Ruth Gavison, "Natural Law, Positivism, and the Limits of Jurisprudence: A Modern Round," Yale Law Journal 91, no. 6 (May 1982): 1266-67. See also Daniel Robinson, "Antigone's Defense: A Critical Study of Natural Law Theory: Contemporary Essays," Review of Metaphysics 45, no. 2 (December 1991): 382.
35. Joel Feinberg, "The Dilemmas of Judges Who Must Interpret 'Immoral Laws,'" in Joel Feinberg and Jules Coleman, eds., Philosophy of Law, 6th ed. (Belmont, CA: Wordsworth/ Thomson Learning, 2000), 108-29.
36. Fuller, The Morality of Law.
37. H. L. A. Hart, "Book Review - The Morality of Law," Harvard Law Review 78, no. 6 (April 1965): 1281-96.
38. Grant Gilmore's nice paraphrase of Hart's point. Grant Gilmore, The Ages of American Law (New Haven, CT: Yale University Press, 1974), 111.
39. Lon Fuller, "What the Law Schools Can Contribute to the Making of Lawyers," Journal of Legal Education 1, no. 2 (Winter 1948): 204; Fuller, The Morality of Law, 152-86, 223-24; Fuller, "Fidelity to Law," 636, 643, 661; and Lon Fuller, "A Reply to Professors Cohen and Dworkin," Villanova Law Review 10, no. 4 (Summer 1965): 661-66.
40. Lon Fuller, "What the Law Schools Can Contribute to the Making of Lawyers," Journal of Legal Education 1, no. 2 (Winter 1948): 204; Fuller, The Morality of Law, 152-86, 223-24; Fuller, "Fidelity to Law," 636, 643, 661; and Lon Fuller, "A Reply to Professors Cohen and Dworkin," Villanova Law Review 10, no. 4 (Summer 1965): 661-66.
41. Lon Fuller, "What the Law Schools Can Contribute to the Making of Lawyers," Journal of Legal Education 1, no. 2 (Winter 1948): 204; Fuller, The Morality of Law, 152-86, 223-24; Fuller, "Fidelity to Law," 636, 643, 661; and Lon Fuller, "A Reply to Professors Cohen and Dworkin," Villanova Law Review 10, no. 4 (Summer 1965): 661-66.
42. Lon Fuller, "What the Law Schools Can Contribute to the Making of Lawyers," Journal of Legal Education 1, no. 2 (Winter 1948): 204; Fuller, The Morality of Law, 152-86, 223-24; Fuller, "Fidelity to Law," 636, 643, 661; and Lon Fuller, "A Reply to Professors Cohen and Dworkin," Villanova Law Review 10, no. 4 (Summer 1965): 661-66.
43. Finnis, Natural Law and Natural Rights.
44. Ibid., 154-55.
45. Ibid.
46. Dworkin, Law's Empire.
47. This is the view of Jerome Frank, Law and the Modern Mind (New York: Brentano's, 1930).
48. J. L. Austin, "A Plea for Excuses," Proceedings of the Aristotelian Society 57 (1957): 1-30.
49. H. L. A. Hart, "The Ascription of Responsibility and Rights," Proceedings of the Aristotelian Society 49 (1949): 171-94.
50. Fuller, "Fidelity to Law."
51. Aquinas, Summa Theologiae, I-II, q. 96, a. 6.
52. On Aquinas's side, see Fuller, "Fidelity to Law"; and Max Radin, "Statutory Interpretation," Harvard Law Review 43, no. 6 (April 1930): 863-90. On the other side, see, e.g., Frank Easterbrook, "Statute's Domains," University of Chicago Law Review 50, no. 2 (Spring 1983): 533-52.
53. On Aquinas's side, see Fuller, "Fidelity to Law"; and Max Radin, "Statutory Interpretation," Harvard Law Review 43, no. 6 (April 1930): 863-90. On the other side, see, e.g., Frank Easterbrook, "Statute's Domains," University of Chicago Law Review 50, no. 2 (Spring 1983): 533-52.
54. On Aquinas's side, see Fuller, "Fidelity to Law"; and Max Radin, "Statutory Interpretation," Harvard Law Review 43, no. 6 (April 1930): 863-90. On the other side, see, e.g., Frank Easterbrook, "Statute's Domains," University of Chicago Law Review 50, no. 2 (Spring 1983): 533-52.
55. Fuller, "Fidelity to Law."
56. See, e.g., Easterbrook, "Statute's Domains."
57. Compare Easterbrook's preaching in "Statute's Domains" with his practice in In re Erickson, 815 F.2d 1090 (7th Cir. 1987).
58. Oliver Wendell Holmes, Jr., quoted in Learned Hand, The Bill of Rights (Cambridge, MA: Harvard University Press, 1958), 18.
59. See, e.g., Joseph Raz, "Authority and Consent," Virginia Law Review 67, no. 1 (February 1981): 103-31.
60. For one of many critiques, see Michael Moore, "The Semantics of Judging," Southern California Law Review 54, no. 2 (January 1981): 256-70.
61. Dworkin stresses this point in his "The Forum of Principle," New York University Law Review 56, nos. 2-3 (May/June 1981): 469-518, reprinted in A Matter of Principle (Cambridge, MA: Harvard University Press, 1985). See also Moore, "The Semantics of Judging."
62. Dworkin stresses this point in his "The Forum of Principle," New York University Law Review 56, nos. 2-3 (May/June 1981): 469-518, reprinted in A Matter of Principle (Cambridge, MA: Harvard University Press, 1985). See also Moore, "The Semantics of Judging."
63. Dworkin stresses this point in his "The Forum of Principle," New York University Law Review 56, nos. 2-3 (May/June 1981): 469-518, reprinted in A Matter of Principle (Cambridge, MA: Harvard University Press, 1985). See also Moore, "The Semantics of Judging."
64. See Radin, "Statutory Interpretation"; Moore, "The Semantics of Judging"; and Antonin Scalia, A Matter of Interpretation, ed. Amy Gutmann (Princeton, NJ: Princeton University Press, 1997), 17.
65. See Radin, "Statutory Interpretation"; Moore, "The Semantics of Judging"; and Antonin Scalia, A Matter of Interpretation, ed. Amy Gutmann (Princeton, NJ: Princeton University Press, 1997), 17.
66. See Radin, "Statutory Interpretation"; Moore, "The Semantics of Judging"; and Antonin Scalia, A Matter of Interpretation, ed. Amy Gutmann (Princeton, NJ: Princeton University Press, 1997), 17.
67. Hart made this point against both Fuller and Dworkin. Hart, "Book Review - The Morality of Law"; Hart, "Comment," in Ruth Gavison, ed., Issues in Contemporary Legal Philosophy (Oxford: Oxford University Press, 1987).
68. Hart made this point against both Fuller and Dworkin. Hart, "Book Review - The Morality of Law"; Hart, "Comment," in Ruth Gavison, ed., Issues in Contemporary Legal Philosophy (Oxford: Oxford University Press, 1987).
69. This is one of Dworkin's favorite examples. Compare Dworkin, "Review of Cover's Justice Accused," Times Literary Supplement, December 5, 1975, with J. L. Mackie, "The Third Theory of Law," Philosophy and Public Affairs 7, no. 1 (Autumn 1977): 3-16; and with Joel Feinberg, "The Dilemmas of Judges Who Must Interpret 'Immoral Laws.'"
70. This is one of Dworkin's favorite examples. Compare Dworkin, "Review of Cover's Justice Accused," Times Literary Supplement, December 5, 1975, with J. L. Mackie, "The Third Theory of Law," Philosophy and Public Affairs 7, no. 1 (Autumn 1977): 3-16; and with Joel Feinberg, "The Dilemmas of Judges Who Must Interpret 'Immoral Laws.'"
71. This is one of Dworkin's favorite examples. Compare Dworkin, "Review of Cover's Justice Accused," Times Literary Supplement, December 5, 1975, with J. L. Mackie, "The Third Theory of Law," Philosophy and Public Affairs 7, no. 1 (Autumn 1977): 3-16; and with Joel Feinberg, "The Dilemmas of Judges Who Must Interpret 'Immoral Laws.'"
72. This example is Kenneth Stem's, from his "Either-or or Neither-nor," in Sidney Hook, ed., Law and Philosophy (New York: New York University Press, 1963), 249-50.
73. Kirby v. United States, 74 U.S. (7 Wall.) 482 (1869).
74. I defend this view of statutory interpretation at length in Michael Moore, "A Natural Law Theory of Interpretation," Southern California Law Review 58, no. 2 (January 1985): 277-398.
75. Aquinas, Summa Theologiae, I-II, q. 90, a. 1.
76. Oliver Wendell Holmes, "The Path of the Law," Harvard Law Review 10, no. 8 (March 1897): 457-68.
77. See, e.g., Hart, The Concept of Law.
78. This is Raz's term. Joseph Raz, The Authority of Law (Oxford: Oxford University Press, 1979).
79. Ibid.
80. This is Hart's view in The Concept of Law.
81. I defend the possibility of this kind of external jurisprudence against Dworkin and others in Michael Moore, "Hart's Concluding Scientific Postscript," Legal Theory 4, no. 3 (September 1998): 301-27; and in Moore, Educating Oneself in Public, chaps. 1, 3.
82. I defend the possibility of this kind of external jurisprudence against Dworkin and others in Michael Moore, "Hart's Concluding Scientific Postscript," Legal Theory 4, no. 3 (September 1998): 301-27; and in Moore, Educating Oneself in Public, chaps. 1, 3.
83. Andrei Marmor, Interpretation and Legal Theory (Oxford: Oxford University Press, 1992).
84. H. L. A. Hart, "American Jurisprudence through English Eyes: The Nightmare and the Noble Dream," Georgia Law Review 11, no. 5 (September 1977): 969-89, reprinted in H. L. A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983).
85. H. L. A. Hart, "American Jurisprudence through English Eyes: The Nightmare and the Noble Dream," Georgia Law Review 11, no. 5 (September 1977): 969-89, reprinted in H. L. A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983).
86. In Hart's The Concept of Law, judges must regard the rule of recognition as obligatory for a legal system to exist.
87. It is perhaps almost as intuitive that Kirby's legal rights and obligations were the same as those the judge was obligated to discover in his decision. Still, I leave for another day the question of whether the laws of cases necessarily obligate citizens as well as judges. (In this regard, however, see Hurd, Moral Combat.) If they do, this stronger first step of the traditional argument for natural law makes the second step easier, since in comparison to judicial obligations, which express just those values defining a discrete role, citizens' obligations are more easily seen as an expression of all the values there are.
88. In the Anglo-American legal system, we have for centuries tempered the desire for finality in legal judgments with a desire to reopen "final" judgments in order to correct serious substantive or procedural errors. At common law, this was accomplished procedurally by the ancient writs of coram nobis and audita querela, and in Equity, by bills in equity seeking injunctions against the enforcement of legal judgments. (See J. W. Moore, Moore's Federal Practice, 3rd ed. [New York: M. Bender, 1999], sees. 60 App. 105-8.) Even under current federal American law, the old view that courts have inherent power to reopen their own judgments survives; Federal Rule of Civil Procedure 60(b) enumerates five traditional grounds for reopening a judgment and then adds a safety-valve provision specifying that a judgment can also be reopened for "any other reason justifying relief from the operation of the judgment." Under this provision, "[t]he degree of unfairness may properly be considered in determining whether a court is justified in disturbing the finality of a judgment." Moore, Moore's Federal Practice, sec. 60 App. 37. As courts recognize, this "catch-all" or safety-valve provision is a "grand reservoir of equitable power to do justice in a particular case." Campion v. Alton Steamship Co., 608 F.2d 96, 106 (5th Cir. 1979). Currently, the above-referenced procedures for reopening a judgment are available only to the court that rendered the judgment. However, when the degree of injustice caused by an erroneous judgment is serious enough, a "collateral attack" on that judgment can be launched from a different court. See, e.g., Fay v. Noia, 372 U.S. 391 (1963), and Townsend v. Sain, 372 U.S. 293 (1963), where collateral review of state court factual findings was allowed by the U.S. Supreme Court in order to protect constitutional values. In a civil context, see Feinberg, "The Dilemmas of Judges Who Must Interpret 'Immoral Laws,'" for a discussion of the various techniques used by state court judges in the antebellum North to avoid giving "full faith and credit" to Southern court findings pertaining to escaped slaves.
89. In the Anglo-American legal system, we have for centuries tempered the desire for finality in legal judgments with a desire to reopen "final" judgments in order to correct serious substantive or procedural errors. At common law, this was accomplished procedurally by the ancient writs of coram nobis and audita querela, and in Equity, by bills in equity seeking injunctions against the enforcement of legal judgments. (See J. W. Moore, Moore's Federal Practice, 3rd ed. [New York: M. Bender, 1999], sees. 60 App. 105-8.) Even under current federal American law, the old view that courts have inherent power to reopen their own judgments survives; Federal Rule of Civil Procedure 60(b) enumerates five traditional grounds for reopening a judgment and then adds a safety-valve provision specifying that a judgment can also be reopened for "any other reason justifying relief from the operation of the judgment." Under this provision, "[t]he degree of unfairness may properly be considered in determining whether a court is justified in disturbing the finality of a judgment." Moore, Moore's Federal Practice, sec. 60 App. 37. As courts recognize, this "catch-all" or safety-valve provision is a "grand reservoir of equitable power to do justice in a particular case." Campion v. Alton Steamship Co., 608 F.2d 96, 106 (5th Cir. 1979). Currently, the above-referenced procedures for reopening a judgment are available only to the court that rendered the judgment. However, when the degree of injustice caused by an erroneous judgment is serious enough, a "collateral attack" on that judgment can be launched from a different court. See, e.g., Fay v. Noia, 372 U.S. 391 (1963), and Townsend v. Sain, 372 U.S. 293 (1963), where collateral review of state court factual findings was allowed by the U.S. Supreme Court in order to protect constitutional values. In a civil context, see Feinberg, "The Dilemmas of Judges Who Must Interpret 'Immoral Laws,'" for a discussion of the various techniques used by state court judges in the antebellum North to avoid giving "full faith and credit" to Southern court findings pertaining to escaped slaves.
90. In the Anglo-American legal system, we have for centuries tempered the desire for finality in legal judgments with a desire to reopen "final" judgments in order to correct serious substantive or procedural errors. At common law, this was accomplished procedurally by the ancient writs of coram nobis and audita querela, and in Equity, by bills in equity seeking injunctions against the enforcement of legal judgments. (See J. W. Moore, Moore's Federal Practice, 3rd ed. [New York: M. Bender, 1999], sees. 60 App. 105-8.) Even under current federal American law, the old view that courts have inherent power to reopen their own judgments survives; Federal Rule of Civil Procedure 60(b) enumerates five traditional grounds for reopening a judgment and then adds a safety-valve provision specifying that a judgment can also be reopened for "any other reason justifying relief from the operation of the judgment." Under this provision, "[t]he degree of unfairness may properly be considered in determining whether a court is justified in disturbing the finality of a judgment." Moore, Moore's Federal Practice, sec. 60 App. 37. As courts recognize, this "catch-all" or safety-valve provision is a "grand reservoir of equitable power to do justice in a particular case." Campion v. Alton Steamship Co., 608 F.2d 96, 106 (5th Cir. 1979). Currently, the above-referenced procedures for reopening a judgment are available only to the court that rendered the judgment. However, when the degree of injustice caused by an erroneous judgment is serious enough, a "collateral attack" on that judgment can be launched from a different court. See, e.g., Fay v. Noia, 372 U.S. 391 (1963), and Townsend v. Sain, 372 U.S. 293 (1963), where collateral review of state court factual findings was allowed by the U.S. Supreme Court in order to protect constitutional values. In a civil context, see Feinberg, "The Dilemmas of Judges Who Must Interpret 'Immoral Laws,'" for a discussion of the various techniques used by state court judges in the antebellum North to avoid giving "full faith and credit" to Southern court findings pertaining to escaped slaves.
91. Anglo-American law, as formally stated, is different from what I am arguing for in this essay. See, e.g., United States v. United Mine Workers, 330 U.S. 258, 294 (1947), in which it is stated that "[a]n injunction . . . must be obeyed . . . however erroneous the action of the court may be[.]" If our law really means this, it is bad law. I doubt, however, that our law does mean this. To give the proper incentives to most people, it is doubtlessly useful to utter such categorical, exceptionless pronouncements; in actuality, however, courts merely slap on the wrists actors like Martin Luther King when those actors violate judicial orders (subsequently determined to be erroneous for very good reasons.)
92. Union Pacific Ry. v. Cappier, 72 Pac. 281 (Kansas 1903).
93. Ronald Dworkin, "The Model of Rules," University of Chicago Law Review 35, no. 1 (Autumn 1967): 14-54.
94. Ronald Dworkin, "Hard Cases," Harvard Law Review 88, no. 6 (April 1975): 1057-109.
95. Michael Moore, "Legal Principles Revisited," Iowa Law Review 82, no. 3 (March 1997): 867-91, reprinted as chap. 7 of Moore, Educating Oneself in Public.
96. Michael Moore, "Legal Principles Revisited," Iowa Law Review 82, no. 3 (March 1997): 867-91, reprinted as chap. 7 of Moore, Educating Oneself in Public.
97. Ibid., 873 n. 40.
98. Ibid., 875-76.
99. This is Hans Kelsen's view. See Hans Kelsen, "The Pure Theory of Law," Law Quarterly Review 51, no. 203 (July 1935): 528. "There is no such thing, of course, as a genuine gap, in the sense that a legal dispute could not be decided according to the valid norms, owing to the omission of a provision directed to the concrete case. . . . The law says not only that a person is obligated to a certain behavior . . . but also that a person is free to do or not to do what he is not obligated to do."
100. W. Page Keeton, Prosser and Keeton on Torts, 5th ed. (St. Paul, MN: West Publishing Co., 1984), 56-57.
101. Austin, "A Plea for Excuses."
102. A good example of such deep positivism can be found in Rolph Sartorius, Individual Conduct and Social Norms (Encino, CA: Dickenson Publishing, 1975).
103. See Moore, Placing Blame, 14-18.
104. See generally Moore, "Precedent."
105. Ibid.
106. Ibid. See also Moore, "Legal Principles Revisited," discussing Dworkin's commitment to seeing equality (rather than integrity) as the function of the common law.
107. Ibid. See also Moore, "Legal Principles Revisited," discussing Dworkin's commitment to seeing equality (rather than integrity) as the function of the common law.
108. Susan Dimock, "The Natural Law Theory of St. Thomas Aquinas," in Feinberg and Coleman, eds., Philosophy of Law, 31.