Coming to grips with the law: In Defense of Positive Legal Positivism

Legal Theory

Volumn 5, Issue 2, 1999, Pages 171-200

  Kramer, Matthew H ^a  

^a CHURCHILL COLLEGE   (United Kingdom)

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EID: 85007621762     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325299052039     Document Type: Article

References (12)

1. Despair concerning this point suffuses the “Postscript” to the second edition of H.L.A. Hart's THE CONCEPT OF LAW 238 (1994) [hereinafter Hart, “Postscript”]. See also Brian Bix, JURISPRUDENCE: THEORY AND CONTEXT 97-99 (1996); Nigel Simmonds, Why Conventionalism Does Not Collapse into Pragmatism, 49 CAMBRIDGE L. J. 63 (1990); Philip Soper, Dworkin's Domain, 100 HARV. L. REV. 1166, 1167-68, 1170-75 (1987). The principal texts by Dworkin which I consider in this essay are TAKING RIGHTS SERIOUSLY (1978) [hereinafter TRS]; A Reply by Ronald Dworkin, in RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE 247 (Marshall Cohen ed., 1984) [hereinafter “Reply”]; LAW'S EMPIRE (1986) [hereinafter LE]; Legal Theory and the Problem of Sense, in ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY 9 (Ruth Gavison ed., 1987) [hereinafter “Theory”]; Objectivity and Truth: You'd Better Believe It, 25 PHIL. & PUB. AFF. 87 (1996) [hereinafter “Objectivity”]. (The overall book edited by Ruth Gavison will hereinafter be cited as Gavison, ISSUES; and the overall book edited by Marshall Cohen will hereinafter be cited as Cohen, DWORKIN.) This essay comprises slightly more than one-third of a long chapter on Dworkin from my forthcoming book LAW WITHOUT TRIMMINGS: A DEFENSE OF LEGAL POSITIVISM. I have made numerous modifications to facilitate the abridgment of the chapter. I thank the editors and the anonymous readers for their helpful suggestions.
2. See, e.g., John Finnis, On Reason and Authority in Law's Empire, 6 LAW & PHIL. 357, 367-68 (1987); Ruth Gavison, “Comment,” in Gavison, ISSUES, at 21, 25-27; H.L.A. Hart, “Comment,” in Gavison, ISSUES, at 35, 36-40 [hereinafter cited as Hart, “Comment”]; Hart, “Postscript,” at 246-47. Cf. Steven Burton, Ronald Dworkin and Legal Positivism, 73 IOWA L. REV. 109-13, 128-29 (1987); P.H. Nowell-Smith, Dworkin v. Hart Appealed: A Meta-ethical Inquiry, 13 METAPHILOSOPHY 1, 9-10 (1982).
3. On the distinction between “positive” and “negative” positivism, see Jules Coleman, Negative and Positive Positivism, in MARKETS, MORALS AND THE LAW 3 (1988).
4. For some accounts of Dworkin's position, see Andrei Marmor, INTERPRETATION AND LEGAL THEORY 3-9 (1992); Charles Silver, Elmer's Case: A Legal Positivist Replies to Dworkin, 6 LAW & PHIL. 381, 386-87 (1987); John Stick, Literary Imperialism: Assessing the Results of Dworkin's Interpretive Turn in Law's Empire, 34 UCLA L. REV. 371, 376-81 (1986). For Dworkin's earlier attack on Hart's notion of the Rule of Recognition, see especially TRS, chs. 2, 3.
5. For some of the many previous ripostes to Dworkin on this point, see, e.g., Michael Bayles, Hart vs. Dworkin, 10 LAW & PHIL. 349, 353-61 (1991); Jules Coleman, INTERPRETATION AND LEGAL THEORY note 3, at 12-27; Jules Coleman, On the Relationship Between Law and Morality, 2 RATIO JURIS 66, 72-75 (1989); Jules Coleman, Authority and Reason, in THE AUTONOMY OF LAW 287, 289-96 (Robert George ed., 1996); Hart, “Postscript,” at 254-59; Charles Silver, INTERPRETATION AND LEGAL THEORY note 5, at 387-90. Also clearly relevant are some of the remarks in Gerald Postema, “Protestant” Interpretation and Social Practices, 6 LAW & PHIL. 283, 300, 301, 315-16 (1987). Throughout this discussion I take the Hartian view that each legal system has one overall Rule of Recognition made up of numerous criteria (some of which might not be clearly ranked). I do not see any reason to stipulate that some criteria are separate Rules of Recognition. For such a stipulation, see Joseph Raz, THE AUTHORITY OF LAW 95-96 (1979).
6. I need not altogether deny Frederick Schauer's claim that, within a Dworkinian world, legal rules quite frequently give way to their underlying reasons when there are serious clashes between the two. See Frederick Schauer, The Jurisprudence of Reasons, 85MICH. L. REV. 847 (1987). I need only contend that circumstances involving such clashes-circumstances likely to generate difficult appellate cases-are vastly outnumbered by the myriad circumstances in which such clashes do not occur. Schauer would probably agree. While avouching that “[a]s a descriptive enterprise, [Dworkin's work] seems much more accurately to characterize the nature ofmuchof appellate adjudication than did its positivist opponents,” he doubts “whether [Dworkin's jurisprudence] accurately characterizes the idea of law itself” (id. at 870).
7. For an early example, see E. Philip Soper, Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute, in Cohen, DWORKIN, at 3, 16-19.
8. This point (in a different context) is emphasized in Matthew Kramer, HOBBES AND THE PARADOXES OF POLITICAL ORIGINS 99-122 (1997).
9. Thomas Hobbes, LEVIATHAN 110 (Richard Tuck ed., 1991). Hobbes's pithily stated point is developed at greater length (without reference to Hobbes) in William Boardman, Coordination and the Moral Obligation to Obey the Law, 97 ETHICS 546, 552-53 (1987). As elegantly concise as Hobbes is the Book of Isaiah: “Justice is turned back, and righteousness stands afar off; for truth has fallen in the public squares, and uprightness cannot enter. Truth is lacking, and he who departs from evil makes himself a prey” (Isaiah 59:14-15). For another snag in the conviction/convention dichotomy, see Nigel Simmonds, HOBBES AND THE PARADOXES OF POLITICAL ORIGINS note 1, at 77-79. Cf. John Stick, HOBBES AND THE PARADOXES OF POLITICAL ORIGINS note 5, at 412-13. I should note, incidentally, that I shall herein be using the terms “conventionalist” and “conventionalism” only with reference to the convention/conviction dichotomy, rather than with all the connotations attached to those terms in the fourth chapter of Law's Empire.
10. For a somewhat more nuanced view of chess, see TRS, at 101-105.
11. For the most sustained challenge to Dworkin on this issue, see W.J. Waluchow, INCLUSIVE LEGAL POSITIVISM (1994), chs. 6,7.
12. For a recent statement from this school, see Eleni Mitrophanous, Soft Positivism, 17 OXFORD J. LEGAL STUD. 621 (1997).