Law, morality, and the guidance of conduct

Legal Theory

Volumn 6, Issue 2, 2000, Pages 127-170

  Shapiro, Scott J ^a  

^a YESHIVA UNIVERSITY   (United States)

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EID: 85016690251     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325200062017     Document Type: Article

References (62)

1. See, e.g., Jules Coleman, Negative and Positive Positivism, J. LEGAL STUD. 139 (1982), reprinted in Jules L. Coleman, MARKETS, MORALS AND THE LAW 3 (1988).
2. Southern Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917).
3. See Ronald Dworkin, The Model of Rules I, in TAKING RIGHTS SERIOUSLY 14 (1977). For an extensive discussion of the Hart/Dworkin debate, see Scott J. Shapiro, On Hart's Way Out, 4 LEGAL THEORY 469, 477-89 (1998).
4. Jules Coleman, Negative and Positive Positivism, The Model of Rules I note 1.
5. See Jules Coleman, Incorporationism, Conventionality, and the Practical Difference Thesis, 4 LEGAL THEORY 381 (1998).
6. See H.L.A. Hart, THE CONCEPT OF LAW 249 (Penelope A. Bullock & Joseph Raz eds., 2d ed. 1994).
7. See Shapiro, THE CONCEPT OF LAW 249 note 3.
8. See Joseph Raz, THE CONCEPT OF A LEGAL SYSTEM, 200 (2d ed. 1980). Needless to say, Raz also rejects inclusive legal positivism.
9. See Kenneth Himma, H.L.A. Hart and the Practical Difference Thesis, 6 LEGAL THEORY 1-43 (2000); WillWaluchow, Authority and the Practical Difference Thesis, 6 LEGAL THEORY 45-81(2000); Matthew Kramer, How Moral Principles Can Enter Into the Law, 6 LEGAL THEORY 83-108(2000).
10. Shapiro, H.L.A. Hart and the Practical Difference Thesis note 3, at 502-5.
11. Himma, H.L.A. Hart and the Practical Difference Thesis note 3 note 9.
12. I have made every effort to keep each section as self-contained as possible. In this way, the reader may skip discussions that are not of interest.
13. Himma, I have made every effort to keep each section as self-contained as possible. note 9, at 16.
14. For the sake of simplicity, I am presupposing the Limit Assumption. See David Lewis, COUNTERFACTUALS 19-21 (1973).
15. Himma refers to it as (MG2). Himma, For the sake of simplicity note 9, at 21.
16. As I mentioned in Section I, this is not the characterization of practical difference that I offered in the original article. According to that characterization, a legal rule R guides a person P to do A only if P might not have done A if he had not appealed to R. The three differences mentioned in the text between (4) and (1), however, apply, mutatis mutandis, to this older characterization as well.
17. According to the Lewis-Stalnaker semantics, might-counterfactuals bear the same relation to would-counterfactuals as possibility bears to necessity, i.e., that of duality. Just as “It is possible that B” is equivalent to “It is not the case that it is necessary that not-B,” “If B were the case, then C might be the case” is equivalent to “It is not the case that if B were the case, then not-C would be the case.” A might-conditional is true just in case some of the closest worlds to the actual world where the antecedent is true is also a world where the consequent is true. If there are no words where R is not a rule, then it trivially follows that “P might not have done A if R had not been a rule” is false. Hence, (3) is true.
18. Himma, According to the Lewis-Stalnaker semantics, might-counterfactuals bear the same relation to would-counterfactuals as possibility bears to necessity note 9, at 21-23.
19. The last clause “but continued to be guided by the inclusive rule of recognition” is added to ensure that the most similar worlds to the actual world where P does not recognize that M applies are also worlds where P is guided by the inclusive rule of recognition. This cannot be guaranteed simply by assuming the antecedent of (5) true. It is only by considering worlds where P does not appeal to M as a legal rule and is also guided by an inclusive rule of recognition that we can determine whetherMmakes a difference as a legal rule over and above the difference that the rule of recognition makes.
20. By claiming that morality is a static system, I do not mean to imply that morality is absolute. Someone can be amoral relativist and still believe that morality is static. For themoral relativist can believe that even though there are many “moralities,” each one is static. For the sake of convenience, however, I have been talking, and will continue to talk, as if there were only one correct moral system.
21. “The whole contrast between natural and positive law may, in a certain sense, be presented as the contrast between a static and a dynamic system of norms.” Hans Kelsen, GENERAL THEORY OF LAW AND STATE 400 (Anders Wedberg ed., 1945).
22. Himma, “The whole contrast between natural and positive law may, in a certain sense, be presented as the contrast between a static and a dynamic system of norms. note 9, at 14 (citing Hart, “The whole contrast between natural and positive law may, in a certain sense, be presented as the contrast between a static and a dynamic system of norms. note 6, at 193).
23. Himma, “The whole contrast between natural and positive law may, in a certain sense, be presented as the contrast between a static and a dynamic system of norms. note 9 note 9, at 15.
24. Hart, “The whole contrast between natural and positive law may, in a certain sense, be presented as the contrast between a static and a dynamic system of norms. note 9 note 9 note 6, at 199.
25. Himma, “The whole contrast between natural and positive law may, in a certain sense, be presented as the contrast between a static and a dynamic system of norms. note 9 note 9 note 6 note 9, at 16.
26. See H.L.A. Hart, LAW, LIBERTY AND MORALITY 17 (1963).
27. See Hart, LAW, LIBERTY AND MORALITY note 6, at 54-56, 86-88.
28. See Ronald Dworkin, The Model of Rule II, in TAKING RIGHTS SERIOUSLY, Hart note 3, at 46, 52-53.
29. Recall Weber's description of the charismatic leader: “It has been written that…, but I say unto you….” Max Weber, ECONOMY AND SOCIETY 1115 (Guenther, Roth, and Claus Wittsch, eds., 1968).
30. Himma, Recall Weber's description of the charismatic leader: “It has been written that…, but I say unto you….” note 9, at 35-36.
31. Hart, Recall Weber's description of the charismatic leader: “It has been written that…, but I say unto you….” note 9 note 6, at 141.
32. Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889).
33. Hart, When I say that an agent has learned information “from the rule,” this should be understood as short-hand for the agent having learned the information from some statement of the rule's content. note 6, at 40.
34. As Hart pointed out, it is a fact of enormous importance that legal rules are formulated not as naked threats but as rules, i.e., they are couched in the normative language of duty, obligation, rights, and powers.
35. Recall that for Hart the answer to this question does not lie in the need for centralized enforcement and sanctioning. See id. at 93-94.
36. John Locke, TWO TREATISES OF GOVERNMENT, Chapter 3 (C.B. Machpherson, ed., 1980) (1690).
37. Hart, TWO TREATISES OF GOVERNMENT note 6, at 40.
38. See Jules L. Coleman, THE PRACTICE OF PRINCIPLE (forthcoming 2000).
39. Coleman, THE PRACTICE OF PRINCIPLE note 1, at 5.
40. Waluchow, THE PRACTICE OF PRINCIPLE note 1 note 9, at 62-64.
41. See Joseph Raz, Authority, Law and Morality, in ETHICS IN THE PUBLIC DOMAIN 219 (1994).
42. Waluchow, Authority, Law and Morality, in ETHICS IN THE PUBLIC DOMAIN note 9, at 62-63.
43. Kramer, Authority, Law and Morality, in ETHICS IN THE PUBLIC DOMAIN note 9 note 9, at 83.
44. Kramer believes that even a robust incorporationist would place some restrictions on the rule of recognition, e.g., a norm could not be valid simply because a judge had a “hunch” that the rule was correct. Id. at 93. (Kramer, unfortunately, does not specify the content of this hunch-I assume he means a hunch that the rule is morally acceptable.)
45. See, e.g., Kramer's discussion of citizens’ expectations. Id. at 98-99.
46. Hart, Kramer's discussion of citizens’ expectations. note 6, at 112-17.
47. Kramer, Hart note 9, at 96.
48. To be sure, a judge might appeal to moral principles themselves to aid him in applying the rule of recognition. But such principles would be of heuristic value only and not an independent basis for deciding cases. On this point Kramer agrees: “Although those moral precepts might fulfill a heuristic function, they do not constitute any decision-determining reasons (beyond those constituted by the instruction in the Rule of Recognition requiring judges to dispose of hard cases on the basis of moral precepts).” Id. at 101.
49. See Shapiro, To be sure, a judge might appeal to moral principles themselves to aid him in applying the rule of recognition. note 3, at 500-502.
50. See Waluchow, To be sure, a judge might appeal to moral principles themselves to aid him in applying the rule of recognition. note 3 note 9, at 79.
51. See Kramer, To be sure, a judge might appeal to moral principles themselves to aid him in applying the rule of recognition. note 3 note 9 note 9, at 83-84.
52. See Shapiro, To be sure, a judge might appeal to moral principles themselves to aid him in applying the rule of recognition. note 3 note 9 note 9 note 3, at 489-94.
53. See Hart, Commands and Authoritative Reasons, in ESSAYS ON BENTHAM 253-55 (1982).
54. I am not here taking a position on whether judges must be capable of being motivationally guided by legal rules. I am arguing by cases. Having shown that judges cannot be epistemically guided by rules whose morality is a necessary, but not individually sufficient, condition on their legality, I argue that judges cannot be motivationally guided by such rules either. Nevertheless, I do think it is plausible to interpret Hart as having considered the motivational guidance of judges to be one of the functions of legal rules. He writes: “What is crucial for legislation is that certain things said or done by certain persons which can be construed as guiding actions should be recognized by the Courts as constituting just such peremptory reasons for action, and so as law-making events.” Id. at 260. I, therefore, disagree with Himma when he argues that there is no reason to believe such a claim. See Himma, Hart note 9, at 38-39. Nothing much rides on the truth of this assertion, however, for no argument that I have presented depends on it. If judges need not be motivationally guided by the rules that they must apply, then they must be epistemically guided by them, and I have argued that this is not possible. Himma is also wrong to have claimed that the argument in section I above presupposes that judges must be capable of being motivationally guided by primary legal rules. See id. at 34. It only requires that these rules be capable of making a practical difference.
55. Kramer, I am not here taking a position on whether judges must be capable of being motivationally guided by legal rules. note 9, at 90.
56. Joseph Raz, PRACTICAL REASONS AND NORMS (2nd ed.), 40 (1990).
57. Hart does mention in Commands and Authoritative Reasons that his analysis of authoritative directives was inspired by Raz's work on exclusionary reasons. However, he does not say that his theory is the same as Raz's. Rather, he says: “But I don't think I should have seen the full importance of Hobbes’ remarks on these topics had I not had the benefit of the work of Joseph Raz on what he terms ‘exclusionary reasons’ which resembles in many respects the notion I have taken from Hobbes.” Hart, One wonders how Raz himself would deal with Kramer's objection, given that Raz has famously argued that inclusive legal positivism is incompatible with the preemptive nature of legal rules. note 73, at 244 (emphasis added).
58. Hart, Hart does mention in Commands and Authoritative Reasons that his analysis of authoritative directives was inspired by Raz's work on exclusionary reasons. note 6, at 139 (emphasis added).
59. Shapiro, One might see a peremptory reason as a limiting case of an exclusionary reason. note 3, at 502-5.
60. Himma, One might see a peremptory reason as a limiting case of an exclusionary reason. note 3 note 9, at 33.
61. Waluchow, Id. at n.30. note 9, at 76.
62. Himma, Id. at n.30. note 9 note 9, at 31.