0:08

Hey,

0:08

this is the Partially examined life episode

0:10

three hundred four, part two. We've

0:12

been talking about Ronald The

0:15

model of rules, we're gonna bring in

0:17

scotch bureaus, the Dworkin debate,

0:20

a short guide for our plexed. I'm

0:22

gonna be brought in some other things as

0:24

needed switch gears to explicitly

0:27

talk about the stuff that was in Shapiro's

0:29

account of this. We've kind of given the first

0:31

stage of the debate, but she

0:33

Partially summarizes for us what

0:35

we did not read in detail. Yeah.

0:38

I think I can get us into this in a good

0:40

way. He's gonna be summarizing this

0:43

paper that we just read to some extent,

0:45

and so we don't need to go through all of that. But

0:47

I will say that he kinda gives a

0:49

nice structure to all of this

0:51

in his summary. So he calls this model of

0:53

the rules one, this particular paper,

0:56

and says that it gives three

0:58

characterizations of heart's positivism.

1:00

One is this pedigree thesis,

1:03

law can be identified by tests that

1:05

are based on not on content,

1:08

but on pedigree in social facts, right, rules

1:10

recognition. There's the discretion thesis

1:13

which we've discussed quite a bit when

1:15

they're not valid rules that clearly

1:17

cover a Judges look beyond

1:19

the law, And then there's what he calls

1:21

the obligation thesis, which that legal

1:23

obligation necessarily involves falling

1:25

under a valid legal rule.

1:27

Then the question is how Dworkin criticizes all

1:30

of these thesis, and it starts

1:32

with the second one. The argument against

1:34

judicial Discretion is just that it can't

1:37

for the existence of legal

1:39

principles and the way in which judges regard

1:41

themselves is bound by legal

1:44

principles as law when

1:46

no rules are clearly available. And

1:48

that is the auto case and all that stuff

1:50

you know, say exercise week

1:52

discretion, but it's not right to say they

1:55

exercise strong discretion. Can

1:57

throw in a term? I forget whether

1:59

Shapero uses this or just lighter, but Dorkin

2:01

says he accounts for the face value of

2:04

when Partially judges are having these conversations

2:06

about hard Casey. what they say they are doing.

2:09

They don't say, I'm just legislating.

2:11

The law stops here. It's my prerogative.

2:14

Yeah. Me me me. So the fact

2:16

that heart is having to say, they

2:18

think that they're doing something that is founded

2:20

in law, but they're making a mistake. So it's

2:22

an error theory. or they're

2:24

just lying. They know that they're

2:26

making stuff up, but they don't want the

2:28

general public to figure this out. So

2:31

the dissembling Dworkin

2:33

finds both of those very implausible. And

2:35

then, you know, the second attack is on

2:37

the pedigree thesis. This is the

2:39

section c content, not pedigree.

2:42

That's the idea that you can't do the positiveest

2:44

thing with legal principles by trying to say,

2:46

well, they're always just you can always look to

2:48

the fact of precedent.

2:50

or something like that, stuff that's gone on

2:52

before in the legal system.

2:54

And

2:54

that's because legal principles depend on content,

2:57

not on pedigree. So that content

2:59

includes the sense of appropriateness

3:02

developed in the profession or the public

3:05

over time and basically what we talked

3:07

about, the moral perception of

3:09

what's fair or not. So

3:11

general concepts of fairness.

3:14

It's not that pedigree is irrelevant. Principles

3:17

often do have institutional support,

3:19

right, support and precedent. otherwise,

3:21

but content is the more

3:23

important thing. And also,

3:26

despite that institutional precedent that this

3:28

is the part that interests me that I wanted to kind of fast

3:30

forward us to. There's no

3:32

positivist master rule of

3:34

recognition where you could

3:36

just test the principle. Right? It's like, can you

3:38

write an algorithm if the law were all

3:40

rules. It'd be easy

3:42

to write a judge algorithm, right,

3:45

and then put cases or maybe it wouldn't because

3:47

of the fuzziness of concepts. Right? There

3:49

are the open text driven languages. Hard

3:51

calls it, but it would be easier to write some kind

3:53

of algorithm, replace a judge with a computer.

3:55

With principles, it's

3:58

even harder to imagine doing

3:59

that. Basically,

4:01

what is saying is you couldn't create that

4:03

algorithm, you couldn't create a positive this master

4:05

rule that could test some principle

4:07

based on this pedigree of institutional support.

4:11

Because principles are shifting, we develop

4:14

for time and they're conflicted with each other. There's

4:16

weights to them, you

4:18

know, and then there's even meta principles

4:20

that you need to use to resolve

4:22

conflicts between principles. So

4:24

it gets very, very complicated.

4:27

There's infinite possible Casey,

4:29

future Casey, right? teacher

4:31

hard cases that you can't anticipate. So

4:33

there's not a way to codify all this

4:35

in a master rule, which I was thinking about.

4:38

This irreducibility to algorithm.

4:40

what you just described all the way

4:42

up until the qualification that

4:45

Dworkin says that this isn't positivists sounded

4:47

to me exactly like heart.

4:50

and maybe that just is the criticism

4:52

or reputation of to Dworkin

4:54

that that formulation that

4:57

principles guide in

4:59

the end the activity of

5:02

judging in a legal system,

5:04

properly speaking, to fill in the gaps

5:07

where rules aren't

5:09

clear enough is just the way judges

5:11

work and that those principles are

5:13

really principles born out of use. and

5:15

that would be the response and

5:17

Paskin fact, there wasn't anything

5:19

I read hard that to me

5:21

meant that you needed to

5:23

have a algorithmic machine

5:27

that was going to be the structure

5:29

of your legal system then, in

5:31

fact, the rule of recognition, which

5:33

to me was, like, the end of the line

5:35

-- Right. -- our comedian point.

5:37

Yep. And they're sort of progressively less and

5:39

less algorithmic machine

5:41

churning as you go further

5:43

and further towards that archimedean point

5:45

in the legal system. When you get up

5:47

to the top of it, there

5:49

is a ton of principle

5:52

guidingness going on

5:55

and hard cases would exemplify

5:58

those instances where the law was

5:59

more or less mute in any explicit

6:02

way, but it was really more about

6:04

how do we understand what we should be doing and

6:06

you get principles like, well, things ought

6:08

to be simpler. That's the

6:10

same problem in science. That you

6:12

end up getting the principles that I'd allowed you

6:14

to judge between individual

6:17

theories or the weighing of theories

6:19

or the priority of evidence

6:21

over another, it's kind of just a

6:23

principle to say Wes,

6:26

extraordinary claims require extraordinary evidence

6:28

just because you have one measurement that says

6:30

that the principle of energy conversation

6:32

isn't isn't true, doesn't

6:34

mean that you've overthrown the

6:36

principle of energy conversation. So you deal

6:38

when you're transitioning us into, am I

6:40

going too fast? I'm sorry. I No. No.

6:42

No. No. No. This is, like, the next section,

6:44

I think, and I think we're right where we need to be.

6:46

I think this is, you know, Shapiro is

6:49

gonna start defending positivism

6:52

against these attacks. Right? attacks.

6:55

Through a bunch of secondary sources that

6:57

we did not read and And this

6:59

is in section two. We're very grateful to

7:01

Shapiro for summarizing for Joseph

7:04

Rasgon this Seth section to the issue.

7:06

He calls it. Ultimately, we're gonna get

7:08

into responses in terms of exclusive

7:10

legal positivism and of legal positivism.

7:12

But in this transitional section, the

7:14

issue, he'll say, okay,

7:17

look, Dworkin criticizes

7:19

hard for saying the law consists only

7:21

rules never principles. You know,

7:23

he's not doing that maliciously. He's trying to give

7:25

a charitable reading of strong discretion. But

7:28

really, there's a better explanation of

7:30

hearts through judicial discretion,

7:33

and that is the inherent indeterminacy

7:35

of social guidance. the fact that she

7:37

can't settle every contingency in

7:40

advance, rules and principles are

7:42

general. And the question of

7:44

application will always arise.

7:47

You know, this gets us into interesting philosophical

7:49

discussions we've had before, let's say, with Wittgenstein

7:52

or even caught. Right? or Plato.

7:54

Right? How do you pull particulars under

7:56

concepts? How does that happen?

7:58

It's really mysterious

7:59

when

7:59

you start to think about it. And that

8:02

problem kind of infects the laws. So

8:04

precedents, you can look to precedents and they

8:06

give us but

8:08

that doesn't tell us what the relevant

8:10

standard of similarity is. Right? You

8:12

could say, okay, here's this exemplar from the

8:14

past. Well, what's my

8:16

similarity space? I think that's what a analytic

8:18

philosopher would call us or some call it? and

8:21

language itself is a problem. It

8:23

has open texture. So

8:25

the way Shapiro puts it

8:27

is Heart doctrine is not in

8:29

fact a model of the rules, but

8:31

quote, privileges social acts

8:33

of authoritative guidance. rule is

8:36

a standard that has been identified and

8:38

selected as binding by some social act. I think

8:40

Dylan, this is what you're getting in.

8:42

By could be a legislature, but

8:44

it could even just be custom. And then, of course,

8:46

that's where it all starts, right, for heart

8:48

with custom. Right. So it's a misunderstanding of

8:50

what the arc medium point is. Is the arc

8:52

medium point? say the constitution, in

8:54

other words, these words on a piece of paper,

8:56

or is it the

8:58

way that the constitution is

9:00

adopted our adherence to the

9:02

constitution, which is by necessity

9:04

something that is not a single

9:07

piece of text but it is

9:09

a vast social fact

9:11

that is very complicated and

9:13

nobody can ever know it in

9:15

its entirety. and I

9:17

thought that heart was explicit

9:19

about it being that way

9:21

in his formulation of a rule of

9:23

recognition. I mean, sure, a constitution

9:25

would be a manifestation of

9:27

it, but certainly it isn't

9:29

a rule in the way

9:31

that Dworkin is saying

9:33

And I guess I'm basically just explicitly

9:36

agreeing with Shapiro. Just after

9:38

where you said Seth says, contractor would Dworkin interpretation.

9:40

Heart never embraced the model

9:42

of rules. either explicitly or implicitly, where

9:44

the model of rules is the way in

9:46

which to work and interprets a rule is distinct from

9:48

a principle. And this kinda

9:51

gets us back to a more fundamental

9:53

debate, the debate between positiveness

9:56

and non I'll call it I don't wanna call it natural

9:58

law, but on positivism. So

10:00

Shipir ends up saying,

10:02

yeah, this whole thing about treating this

10:04

debate about whether the law contains

10:06

principles as well as rules is not

10:08

really the real debate. What's really

10:10

going on? And the debate is not really about

10:12

discretion and all that. What's really

10:14

going on? The debate is about whether

10:17

morality is a factor or whether it's

10:19

just a matter of social fact about

10:21

what's been socially designated as

10:24

authority. So heart says,

10:26

it comes down to matter that

10:28

standard socially designated as authoritative

10:31

and dwarfed and basically quote,

10:33

denies the centrality of social guidance to

10:35

determining the existence or content of

10:37

legal rules. He wants to say, recording

10:40

The law contains norms that are binding

10:42

even though they have not been the subject

10:45

of past social guidance.

10:47

rather their binding because of their moral content.

10:50

And when norms are subject to

10:52

past social guidance, the bindingness

10:54

depends not on social designation,

10:56

not on some kind of rule of

10:58

recognition, but on principles

11:01

of political morality. So that's

11:03

what we come back to. That's the real

11:05

debate. What is the nature of being

11:07

bound? Was the nature of

11:09

obligation? Right. These are things I

11:11

think in the end of our discussion last

11:13

time about heart we were having

11:15

some trouble with. Is it

11:17

really positivistic? In other words, does it

11:19

really just cash out into this? I don't Alwan

11:21

say social relativism because heart is

11:23

social relative. It's just that it's social relative

11:25

done from the inside as Hart

11:27

says that we are a member of this community.

11:29

So it's not like we're standing outside

11:31

and saying, Oh, all the beliefs are equally

11:33

equal or whatever. We're

11:35

committed to equally equal,

11:37

I like. Just

11:40

say what it is is legitimate,

11:43

equally legitimate to somebody

11:45

because we don't really care about the ones that are

11:47

legitimate to us. to me, this

11:49

is a really interesting manifestation,

11:51

I guess, of the inside,

11:54

outside distinction or, you know, the

11:56

conflict over Bark, you brought up

11:58

positivism in sort of the philosophy

11:59

of science sense Wes

12:02

this seems to be, I mean, way more

12:04

convincing in the moral legal

12:06

framework that it's a product of

12:08

use as a social

12:10

activity that

12:11

There are facts about it,

12:13

but it's also an

12:14

evolving, changing

12:16

entity that's sort of built up for

12:18

the inside. in a

12:20

way that seems to be harder to deal

12:22

with in a case of, say, a scientific

12:24

account of the world. But even if you

12:26

say that, well, people built it, they're still talking about

12:28

something outside of it. outside

12:30

of us. And then that's the stumbling

12:32

block always. And here, it feels

12:34

like, well, it doesn't seem

12:36

so hard to go in the

12:38

positive as rude fact, it seems even

12:40

more true to me

12:42

because it seems in kind of a

12:44

plain way that what's

12:47

legal is a social phenomenon.

12:49

It's an activity amongst people.

12:51

And so what would even

12:53

mean to say that the morally

12:55

out in the world had some kind of

12:57

obligation on us that was

12:59

an obligation but not a force.

13:01

mean, in the case of science, right, is what you're gonna

13:03

say, is you're gonna say, well, you can just be

13:06

wrong because actually, you

13:08

know, gravity works this way.

13:10

And you're just wrong about that.

13:12

And there is a fact of the matter out

13:14

in the world besides your observation

13:16

of it. But here, it seems easier

13:18

because you're saying, well, in some

13:20

kind of plain way,

13:22

there is no fact of the matter

13:24

outside of what we say it

13:26

is. So maybe the complaint, and

13:28

this is just because of what

13:30

says specifically at the end of heart cases,

13:33

is that he thinks he's

13:35

attributing to positivism

13:37

this foundationalist tendency, this

13:39

archimedian point that we keep talking about.

13:41

And if we're gonna move

13:43

and say, oh, well, hard really just

13:45

meant it wasn't like the constitution

13:47

or the act of the queen in

13:49

You know, these examples of heart actually

13:51

gives And those are actually foundational.

13:53

It's the social fact of our

13:55

acceptance of that, which involves a whole bunch of

13:57

norms for contextualizing each

13:59

of the words involved in those things because,

14:01

you know, as we said, texts don't

14:03

read themselves. So if we're gonna

14:06

acknowledge that there is a very hazy,

14:08

complicated social edifice surrounding

14:10

this, Why pretend that that is a

14:12

foundationalist? In any sense,

14:14

why oversimplify things

14:16

and talk about the pedigree,

14:19

what heart put it in this chain of justification.

14:21

Why is this particular thing

14:23

wrong? Well, because of this law that was passed? Why

14:25

is that law legitimate? Because it had

14:27

this origin, this origin Why talk

14:29

about that chain as if it had a stopping

14:31

point? When Wes fact,

14:33

we're in the midst of it, that's the way

14:35

human activities work

14:37

is that, you know, that they're cluster concepts

14:40

that all rely on each other. So the

14:42

justifications actually could be

14:44

circular, you know, and that's the

14:46

sophisticated way to think about ethics or,

14:48

you know, any sort of socially

14:50

grounded social construction or whatever, and

14:53

just wants that there is inherent

14:55

in positivism, this notion of

14:57

simplicity, even if it's not there in

14:59

heart anymore, and this notion of

15:01

simplicity and foundationalism, and just

15:03

feels like Just give that up.

15:05

Don't even pretend. Don't even gesture toward

15:07

that. And maybe that's just a a

15:09

semantic Our depositors to be

15:11

able to distinguish morality and law. Right? because

15:14

we don't legislate every form of

15:16

morality. You know, you might think there's

15:18

such a thing as sexual

15:20

morality or being

15:22

nice to people. we don't get in trouble with the

15:24

law for being dicks unless

15:27

we elevate that to a

15:29

violent level. There's no doubt

15:31

that the law does try to legislate

15:34

areas of morality. It just doesn't legislate all

15:36

of it. I guess my question is, what's

15:38

really at stake here? why is to

15:40

work in So Hel bent on

15:42

criticizing the foundationalism of

15:44

positivism Examined why do

15:46

positivists feel like they need to hold

15:48

on to that for some sort of

15:50

justification of the validity

15:52

or an explanation of legal

15:54

obligation. I mean, Any insight from

15:56

Shapiro? Well, I guess I'm

15:58

not getting the big picture here. Should

16:00

we look at these two forms of

16:02

positivists response? exclusive

16:04

and the inclusive?

16:05

Sure. It seems

16:06

nitpicky, but we've got time. We're

16:08

Wes we can do that very briefly and

16:11

then move on to the round two part is about

16:13

theoretical disagreement, which I think Shapiro

16:15

thinks it's a more powerful argument. Judgment also,

16:17

I think it is interesting,

16:19

Seth, like, you can tell

16:21

us, I mean, if you're interested in

16:23

the theoretical disagreement thing,

16:25

but they're just the two positive responses

16:28

to Dworkin in that Shapero

16:30

flushes out. One of them is to

16:32

actually go against

16:34

heart because heart rejects the pedigree

16:36

thesis. Right? Ultimately, According

16:39

to Shapiro, he

16:41

was inaccurately characterized by

16:43

as holding the pedigree thesis. And

16:46

the exclusive positivists will

16:48

say, wait. No. Actually, we should stick to

16:50

the pedigree thesis. All principles

16:52

do have pedigrees. Even if they

16:54

don't appear to explicitly, they

16:56

have them by way of judicial custom,

16:58

and then why might object that

17:00

by saying, well, judges do appear

17:02

to apply novel principles

17:04

that aren't in judicial custom like they did

17:06

with the auto manufacturing case. The

17:09

second response to this is to say

17:12

that and this he attributes to

17:14

rise. Principles can have no

17:16

pedigree, but the legal obligation

17:18

to apply them does have a

17:20

pedigree. So in other words, you could

17:22

have a obligation to

17:25

look to morality. Right? You could have

17:27

a legal obligation, which is not a self

17:29

amoral obligation. As a judge,

17:32

to look to morality and making your

17:34

decisions. So

17:36

there's still strong discretion there.

17:38

is a sense in which you're still required to look

17:41

beyond the law, but that doesn't mean that

17:43

you can simply do what you want.

17:45

So you're legally constrained to

17:47

apply certain extra legal principles,

17:49

namely the morally Wes ones.

17:52

Which if the whole point of our discussion of heart

17:54

last time was the strong distinction

17:56

between morality and the law, I don't

17:58

like this backdoor introduction

18:00

of Well, but the

18:02

law could be that you have to look to morality.

18:04

Like, then you've there's no real

18:06

distinction. Yeah. I'm

18:08

just wondering if this is really getting

18:10

to Seth's question

18:12

about what's at stake. Like, why

18:14

is making his argument

18:16

in the first place? and

18:19

why are hearts defenders trying to

18:21

defend him? Absent it being

18:23

just a academic pissing

18:25

contest. Is that a version of your question,

18:27

Seth? Wes, this comes down

18:29

to whether we wanna be natural.

18:32

Right? That's exactly theory situation. that's a

18:34

calculated version of my question. But So

18:36

for instance, in a evil

18:39

regime, a lot of unjust terrible

18:42

laws And then the question

18:44

is, aren't they still

18:46

laws? Aren't they valid according to

18:48

a pedigree? According to a rule

18:50

of recognition? don't we need a way of coherently

18:52

talking about legality that doesn't just

18:54

boil down the morality, it gets very

18:56

confusing if you don't do that

18:58

that's one of the motivations for positivism

19:02

is that legality can

19:04

be very, very far from

19:06

morality, but we could still have a way of talking

19:08

about it. validity in terms

19:10

of pedigree. So when we complicate

19:12

the matter, we're not just saying that

19:14

whether we think this is anti positiveness or

19:16

not because it seems like hard makes allowances for

19:18

this. When morality gets into

19:20

the system in some way, morality

19:22

is still a part of it. It's

19:24

complicated. We have to say how morality

19:26

is part of it. Obviously, there's lots of morality

19:29

that's not legislated, and

19:31

obviously, there can be evil laws,

19:33

so it's not that. It's not just

19:35

that law and morality are

19:37

identical, but they have a very interesting

19:40

complicated I think, and that's what this is

19:42

about. But yeah. So at the end of

19:44

heart, he brought up the case

19:46

of the legal system

19:48

revision in post World War

19:50

two Germany. and that

19:52

the criteria that he referred to

19:54

that he criticizes is

19:57

that people were

19:59

found guilty

19:59

under laws or

20:02

not found

20:04

innocent

20:04

under certain laws that have been true during

20:06

the Nazi regime on a

20:08

basis of moral argument that the

20:11

justices said, well, those laws were

20:13

immoral, and therefore, they

20:16

don't apply. And

20:18

heart criticises that,

20:20

saying that you can't deny that

20:22

they were laws. But what you can do is you can say there's a new set

20:24

of laws. And I think that

20:27

Dworkin would side with

20:30

the jurists in

20:31

Germany, that

20:32

he would say that they were perfectly

20:35

right to say that those laws

20:37

were invalid because they were immoral,

20:39

and they violate some higher standard

20:41

than legal standard. Well, it could just

20:43

be a standard of consistency

20:45

that if you think that what

20:47

constitutes law you know, is

20:49

a whole bunch of different measures

20:50

and

20:51

and judicial

20:52

decisions made by disparate

20:55

individuals, then Again, there's not going to be

20:57

sort of a singular underlying

20:59

theory of that. So by

21:01

saying, we're going to

21:03

invalidate what A

21:05

legislature, no doubt, passed,

21:07

like -- Mhmm. -- by all

21:09

means, turning your neighbors to

21:12

the Nazis and you'll get rewarded. if that's the law in

21:14

question that they're thinking about,

21:16

we're gonna just deny that

21:19

based on a larger

21:21

conception of other elements

21:23

in the law that we're still in the law at the

21:25

time. And I guess this is getting

21:27

into that issue of

21:29

president, and to what extent, I

21:31

think, in hard cases Casey notice at the

21:33

end of heart chapter seven, he talks about this,

21:35

like, can a legislature bind itself

21:38

from changing the law in the future? Like

21:41

in other words, can the Nazi regime just to

21:43

rise and say screw all

21:45

those old laws? Here are

21:47

new laws. And those are the ones and then

21:49

when the Nazi regime is over and you're

21:51

evaluating people's behavior during that Nazi

21:53

regime. Do you regard only the laws

21:55

of that then current Nazi

21:57

government as having legitimacy? Or

21:59

do you say, no,

21:59

there are things from previous

22:02

tradition that by the very nature of

22:04

law Seth, held over

22:06

into

22:06

that period despite whatever actual

22:08

Nazi officials might have said. I think

22:10

you're formulating what the positive is response.

22:13

would be to the formulation

22:15

of Dorkan's point, but I still think

22:18

the terms under which what I

22:20

said is the answer to Seth question.

22:22

what's at stake from the standpoint of

22:24

why is to work in making this point and

22:26

why are hearts people defending it?

22:29

it comes down to whether there are extra

22:31

legal standards that you appeal

22:33

to rightly in order to

22:37

found law. And part of that answer

22:39

is the positive for say, of course, that's

22:41

the defense. But I think to

22:42

Dworkin has in mind the kind of

22:45

thing that heart engages at the end of the

22:47

chapter we read

22:47

for last time. And

22:49

Dworkin would

22:49

just disagree with heart. He would side

22:51

with the justices from Germany. Let's

22:54

stop for some sponsored talk. Looking for

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23:23

completely different than yourself. I mean,

23:25

I think this gets us into the inclusive legal

23:28

positivism response, which is just to say legal

23:30

positivism doesn't prohibit moral

23:32

tests of legality. But that

23:34

is not to say that

23:36

there is this necessary connection

23:39

between legality and morality. That's

23:41

not saying the same thing. You can have this

23:43

Nazi system with a bunch of

23:45

unjust laws. which is the central claim

23:47

that the post office wants to make is what

23:49

the law is, its existence, its

23:51

content, that's determined by facts

23:53

about social groups, not moral

23:55

facts. not moral truths. We don't wanna say Alwan

23:57

the natural law theorists

23:59

that, hey, there's god's

24:02

law or there's natural law.

24:04

And then human laws -- Yes. --

24:06

if they match that, they're really laws. But

24:08

if they don't, they're not really laws.

24:10

That would lead to a lot of confusion

24:13

obvious in the way we talk about the

24:15

law. But beyond that, is

24:17

there something more at stake? That's a bigger

24:19

issue. But even if you grant the positive

24:21

aesthetics, the inclusive positiveist will just say,

24:23

despite that distinction, some

24:25

tests of legality are actually

24:27

moralized. They're not just a matter of

24:29

pedigree. So for instance, The

24:31

rule of recognition is a matter of social convention. There's a

24:34

social convention among judges to

24:36

recognize certain rules of as binding the whole

24:38

system doesn't work without that

24:40

social convention. but you

24:42

could have a rule of recognition that

24:44

requires

24:45

recognition of moral rules.

24:48

there's a weakness to that argument which we

24:50

don't have to get into that Shapiro points out and

24:52

then a response to that, but we could leave

24:54

that aside and get to the second part

24:57

about theoretical. disagreement. Just to

24:58

clarify, the position that I was making

25:00

on the Nazi thing that somehow pre

25:03

Nazi laws were still in effect

25:05

during the Nazi regime That

25:07

is not the positiveist response.

25:09

That's explicitly not what Hart says because

25:11

it seems like the rule of recognition

25:14

actually changes. from society's

25:16

society and the Nazi regime was just a

25:18

different society, it established a different

25:20

rule of recognition. And, you know, hard

25:22

gives that whole picture that we talked about last time

25:24

of how through revolutions or through

25:26

gradual fading away of norms that, like,

25:28

it had a different legal system.

25:30

Wes. Times change. I think I was trying

25:32

to give something that maybe more Dworkin

25:34

would be sympathetic with that

25:36

there are moral principles

25:38

you know, that become the foundation of

25:41

legal principles. And these legal

25:43

principles, I don't know, maybe I'm just pulling

25:45

this out of my ass, but I think you could

25:47

make it an argument that

25:49

over time, you know, traditions

25:51

are binding in a stronger

25:54

way than just being able to

25:56

The revolution has happened. We're starting society from

25:59

scratch. But that kind

25:59

of

25:59

conservatism goes both ways.

26:02

Right?

26:02

So you're pointing to the case the Nazi regime that

26:04

there was a principle of freedom or other

26:07

sorts of things that predated the Nazi

26:09

regime and that we can appeal to

26:11

that as saying, well, our

26:13

tradition tells us that, but the flip side is

26:15

also true that Wes back far enough.

26:17

We had a principle that enables

26:19

individuals to own other

26:21

individuals. and that was just part of the deal. Yeah. And there's

26:23

all kinds of what things that we would consider

26:25

to be evil

26:26

now

26:27

that were part of the

26:29

social fabric for millennia.

26:32

And also Dorican

26:33

wants to tell us that we should look

26:35

beyond pedigree. Right? we actually do have

26:37

to look to fairness and morality in

26:40

our vehicle principles. So Again,

26:42

I haven't read the Dobbs decision Seth,

26:44

but I mean, I've heard a little about,

26:46

like, that Alito brought up

26:48

some eighteen thirties decision,

26:50

you know, some from some judge who believed

26:52

in slavery and believed in all these

26:54

horrible things. Mhmm. And, you

26:56

know, what I understand just in terms of the comparison

26:59

to making a theory based on

27:01

disparate scientific data or different observational

27:04

data is that, yes, you

27:06

have all this wealth of tradition to

27:08

draw on and you're always making a decision

27:10

because there's gonna be so many conflicts

27:12

in that wealth of tradition. Wes you're a judge, you're gonna making

27:14

a, what's the true spirit

27:16

of society right now or

27:18

something? I think this has even come up

27:20

in the recent that the newest

27:23

judge was when you're talking about judicial

27:25

originalism, are you really only thinking

27:27

about when the initial constitution

27:29

was passed Or you also thinking

27:31

about the dialogue that went on when each of the

27:33

amendments was passed? So when the post

27:35

slavery amendments were passed, how were

27:37

those understood and

27:39

should not, the judges right

27:41

now in determining affirmative action cases

27:43

or whatever, also be thinking about the

27:45

intentions, the anti discriminatory

27:47

intentions explicitly so of those

27:49

things. So Seth, it becomes very much

27:51

a pick and choose among

27:53

the vast tradition whatever the case,

27:55

and it is hard not to then be cynical and say,

27:58

well, there's so much to choose from

27:59

that you just

27:59

pick and choose the things that you

28:02

like, but to Dworkin, I think, is

28:04

gonna say, no, there's a principled way. Maybe we

28:06

should go farther back to the point where the founding

28:08

fathers sperm was entering

28:10

the founding fathers. Hey. What

28:12

can we derive from that about the

28:14

meaning of the constitution? The founding of

28:16

the constitution was not a person yet at

28:19

that point. as soon as it as soon as the conception is. Well,

28:21

that's what I mean. The constitution begins

28:23

at conception. Mhmm. By I mean, not conception

28:25

of the constitution, but the conception of

28:27

the founding father. Take a

28:31

moment. I think you've tilted you've you've tilted

28:33

your hand about your opinion about the

28:35

whole situation. Let's

28:38

Wes. Acts two

28:41

in

28:41

the Shapiro here. This is basically

28:43

the idea that Positivism doesn't

28:46

help us account for

28:48

theoretical disputes within law, which

28:50

Shapiro takes to be a stronger argument.

28:52

And lighter

28:52

response that

28:54

Dwarkin

28:55

and Shapiro are nuts

28:57

to think the theoretical disputes are

28:59

at the very center of our legal

29:01

tradition. ninety nine point 9999

29:04

percent of of the decisions are

29:06

made that there's a pyramid.

29:08

The vast, vast majority of of things

29:10

are decided more or less in an

29:12

algorithmic way and heart, you know, acknowledges

29:14

this of just, yes, there's some

29:16

weak judicial discretion in deciding

29:18

what the law means and stuff, but it's

29:20

more again just deciding does this

29:22

particular case fall under the law or not?

29:24

It's not actually a theoretical disagreement

29:26

And

29:26

as Leiter points out, even in the

29:29

examples that Dorkin comes up with, the

29:31

judges themselves do not engage in

29:33

theoretical dialogue in the

29:35

kind that you would expect given to work

29:37

in's picture of this. Except

29:39

when we're doing supreme court

29:41

decisions on these foundational. I guess

29:43

we'll We'll see how philosophical they are

29:45

next. Which in my experience Wes very

29:48

philosophical and theoretical. Wes Yeah.

29:50

Dorkan's

29:51

claim in law's empire

29:53

as summarized by Shapiro's

29:55

that legal reasoning is

29:58

often quite theoretical. There are

30:00

more ordinary Judgment. So there's this

30:03

distinction between disagreements about

30:05

whether the grounds of a law have

30:08

obtained, which means it passed

30:10

by a requisite majority in the

30:12

Congress for instance, does it pass some

30:14

rule of recognition? And

30:16

then you could have conflicting claims

30:18

about what those grounds actually

30:21

are. So for instance, he gives

30:23

this example of a case in which There

30:25

was a project, the big Tennessee

30:28

Valley authority versus I

30:30

forget who's because I have this

30:32

abbreviated. But anyway, it was

30:35

environmental group -- Yeah. -- I think, or at

30:37

least they were somehow involved. Tennessee

30:39

Valley Authority versus Hill.

30:41

Yeah. So this environmental organization

30:43

or person came along and said,

30:45

this is a huge project,

30:47

construction project, I guess, that's

30:50

almost completed. has to be shut

30:52

down because there's an endangered species

30:54

in the area. And the supreme

30:57

court said, okay. even acknowledging that,

30:59

wow, this is a huge waste of resources. This

31:01

thing is almost complete. It's

31:03

kinda crazy to do this, but that's what

31:05

the law says we have to do.

31:07

So they agree that the grounds of the law have

31:09

obtained in the sense that there's an actual law

31:11

there that says that. But then the

31:13

question Wes, there's a deeper question of

31:16

whether In interpreting

31:18

the law, we just do the plain meaning

31:20

of the text that that

31:22

just controls every time even

31:24

when absurdities follow. Or do we

31:26

have to think of the larger

31:29

goals of the legal system and even in the

31:31

intent of that law, the

31:33

legislators could have

31:35

said, okay, existing

31:37

projects are grandfathered in. We're not

31:39

gonna shut down a project on which millions

31:41

or billions has already been spent that's,

31:43

you know, like a month away from completion. They could have said that. That

31:45

was an oversight. But

31:48

you could say, but they would have said that

31:50

Seth they had thought about and gonna not

31:52

just do the plain text of the law. I'm

31:54

gonna interpret the law in such a way

31:57

as stupid results

31:59

don't follow. Basically, that's the

32:01

idea. So that's an area of

32:04

theoretical legal dispute.

32:05

You know, I used to listen to this podcast

32:08

a lot called Econ Talk,

32:10

and we had restaurants on. I don't know if

32:12

you guys remember. Mhmm. Absolutely

32:14

right. Right? Seth. Right? Yeah.

32:16

One of his favorite quotes is

32:18

from Hayek, you know, something to the effect

32:20

of, as human beings, we constantly

32:22

overestimate our ability

32:24

to predict. the consequences of our

32:26

actions. Right? So it's an argument

32:28

against heavy handed central government.

32:30

Right? because you implement a policy and you it's gonna

32:32

fix one thing and it causes another problem.

32:34

And that case with the Tennessee

32:36

Valley Authority made me think of that

32:38

is the whole process of

32:40

creating law. is the process of

32:42

trying to create

32:44

the enforcement mechanism, if you

32:46

will, for certain kinds of public

32:48

policy decisions with the expectation

32:50

that we will generate the outcomes

32:52

that are desired by those policies.

32:54

And then when the outcomes are

32:56

not what we expect, then,

32:58

like you said, this sort of strict interpretation of this is

33:00

what the law says versus some sort

33:02

of decision about, but it's a

33:04

massive waste of resources.

33:07

does the waste of the resources outweigh

33:10

the black and white nature of the, you

33:12

know, was the law poorly written? Do we

33:14

have to go back? But it made me think then about

33:16

that notion of intent.

33:19

How would you go back if you were trying to do

33:21

an an intent of the legislature approach

33:24

as a judge in the supreme court

33:26

case. Right? So when he says, this is what

33:28

the law says. The other one,

33:30

the dissent said it's a

33:33

massive waste of public expenditure

33:35

that we should take into consideration.

33:38

But what happened if we took the third path

33:40

and Seth, do you think

33:42

the legislators intended when they wrote this

33:45

to curtail for the sake of

33:47

a salamander to

33:50

completely alter the course of the

33:52

economic, political, social,

33:55

and future of

33:57

a region. It turns out, right, that

33:59

we don't

33:59

do

33:59

that. You know this word

34:02

intent has just been Mentioned,

34:04

we don't look to the specific intent

34:06

of the specific legislators. Shapiro

34:08

ultimately argued we looked to the intent

34:10

of the designers of the whole system. Alright.

34:13

We'll get to that. But for Dworkin, you do this

34:15

thing called constructive interpretation.

34:18

That's what legal

34:20

interpretation is. and that is imposing the

34:22

purpose. So you figure out the purpose of

34:24

an object or practice. And

34:26

then when you do something with

34:28

regard to

34:30

it, You try to make it the best possible example of the form

34:32

or genre to which it belongs. This is kind

34:34

of like our episode about authorial

34:38

intent. Right? It's not so much about the intent of the author

34:40

as the meaning of

34:42

the text or the system. And

34:44

the meaning of the system depends on its

34:46

tail loss depends on actual

34:48

function. Almost like you would look

34:50

at an organism. You look at,

34:52

hey, what is the system? What

34:54

is its function? What is its quote

34:57

unquote genre. And then you use that when

34:59

you interpret its laws. So you

35:01

say, is this system

35:04

really designed to

35:06

make is so that we shut down

35:08

the project that's almost completed. Is

35:10

it designed to produce absurd results? No.

35:12

It's not really designed to do that. We need

35:14

to constructive interpretations of the law where we make it fit

35:17

the overall purpose or tail

35:19

loss of the system so

35:22

that governs these general principles about how laws.

35:24

This comes back to principle again. Right? This

35:26

is about how laws are gonna be applied.

35:29

whether we let absurdities follow because of the

35:31

plain text of law always governs Wes

35:34

whether to do something else. But you resolve

35:36

that by saying, well, because what's

35:38

the point? of the practice. Not what the legislators think the

35:40

point was, but what is the point? Or you could

35:42

also ask about why there was

35:44

no feasibility study done before the

35:46

project got

35:48

ninety three, ninety seven percent of the way done to say, will

35:50

we be violating any laws related

35:52

to the destruction of endangered

35:55

species? Well, the law wasn't on the books when they started their

35:58

project. So how was it even an issue

35:59

then? Because there was a new law, you

36:02

know, with laws change, you have to

36:04

reevaluate. Right? And So Yeah. You can't

36:06

say my polluting plant was already

36:08

built before you said that I can't pollute

36:10

like this. So I Seth to

36:12

keep polluting. Wait. You're telling me they wrote a law that said, from

36:14

here on out and retroactively for

36:16

any project that's in place if it

36:18

endangers a

36:20

species. that's in progress. Like, they didn't even specify It wasn't even written

36:22

to they didn't specify. Yeah.

36:24

The endangered species

36:25

act came out.

36:27

and

36:27

this project was in the middle of being

36:30

done. And so there was a

36:32

suit filed against the

36:34

continuation of the project on the basis of the

36:36

endangered species they should have thought

36:38

of this. They didn't. So

36:40

then you don't look to their specific

36:42

intent or what they did think of or what they didn't

36:44

think of. You look at what they should have

36:46

thought of. again, the purpose of the whole system via

36:48

constructive interpretation. I didn't catch

36:50

that detail. And so basically, what

36:52

justice Roberts

36:54

said is If

36:55

the legislators weren't idiots,

36:57

they

36:57

would have specified that this is

37:00

only for projects going forward and that

37:02

there has to be a feasibility study done

37:04

prior to projects kicking off to see about blah blah blah blah. But since

37:06

they didn't, letter of the

37:07

law. And then the dissent said, that's

37:10

ridiculous. Seth, Seth,

37:12

that's that's Wes was a two

37:14

word to send. And I think you're

37:16

right. Leila's clarification of this is

37:18

if you read the decisions, Both

37:20

the majority and the descent did look explicitly

37:22

to the intentions of the

37:25

legislators. And the

37:27

majority said The intentions

37:29

of the legislators is that the endangered species wins out

37:31

no matter how big the expense is.

37:33

They intended the absurd

37:36

result and they were wrong to do so, but I'm just a judge. That's

37:38

at least lighter stake on this.

37:40

So I prefer the constructive

37:44

interpretation. They have

37:46

absurd intentions that are written in the

37:48

law. Okay. That's fine. If that's

37:50

in the law, if it's like it's

37:52

almost done, they've spent a whole bunch of money,

37:54

shut it down. That's explicitly

37:56

within law, then that's this

37:58

positive. But if it's not in there and you just

37:59

wanna go and look back and look at, okay, what

38:02

would they arguing about when they pass I think that's

38:04

bogus. I'm against authorial

38:06

intent. I think you do the

38:08

constructive interpretation. But yeah. You go. I

38:10

don't know that we're in a position to

38:12

agree with Chapiro here that the snail data are a three

38:14

inch fish of no particular scientific,

38:16

aesthetic, or economic interest. In

38:18

other words,

38:20

They're delicious, by the way. A lot of that's I'm serious.

38:23

No. No. Is there

38:25

a time when we were

38:27

eating these endangered fish? A

38:29

lot that says we Seth preserve species

38:32

despite their aesthetic qualities

38:34

is not Dylan definition

38:36

absurd. You know, I

38:38

don't know. It's not absurd because of that. The absurdity

38:40

is spending a gazillion

38:42

dollars on something and having it almost be

38:44

complete and then stopping right before

38:46

it's complete.

38:48

because the impacts on the fish

38:50

are largely already there

38:52

and determined. I just wanna make sure before

38:54

we get out of here that we consider So

38:57

this hard cases, this comparison

38:59

was made by a judge

39:01

in chess. You wanna give the example?

39:03

Seth? Sure. So he's making

39:05

an analogy between a judge in chess and a

39:07

judge in a judicial system. And he's saying, if

39:10

we can make the analogy that

39:12

the legal system is kind of

39:14

a closed system with a set

39:16

of rules in a similar way that chess

39:18

is. This really, I think, hearkens back

39:20

to its way to try to eliminate

39:22

the discretion

39:24

piece. So The question is, let's say, in chess,

39:26

there's a forfeiture rule which says

39:28

that a player

39:30

cannot intimidate their opponents? Or is

39:32

it more general that it's just they can't engage an

39:34

un sportsman like conduct, an un

39:36

sportsman like conduct. And the idea

39:38

is is

39:40

intimidation unfortunately, like,

39:40

which is clearly done at the master

39:42

level. The

39:43

point is it doesn't have to be intimidation. It could

39:45

be like Because ultimately, what comes

39:47

down to is there's no explicit guidance in the rules of chess

39:49

to tell the judge what counts as unsportsmanlike.

39:52

There are going to be things which are

39:54

obviously unsportsmanlike. like

39:56

standing up and pissing on the chessboard, right, would clearly be on sportsman

39:59

Light. But

39:59

his point is that the

40:01

judge has to

40:04

construct a concept without having a preconceived

40:06

or preconceived notion of what counts

40:08

as unsportsmanlike. In the case

40:10

where the judge

40:11

is called upon to

40:14

adjudicate whether actions count as sports might. That

40:17

judge is going to bring

40:18

in a whole bunch of contextual

40:21

stool, historical, personal, perhaps

40:24

academic information about, well, in

40:26

a regular game, this counts as

40:29

on sportsman like or is chess

40:31

like football? So is

40:34

taunting considered in sportsman

40:34

like a chess the way it is or is

40:37

not in football and basically, in

40:39

this particular example, to work in his

40:41

kind of saying, I think, Mark, the upshot

40:43

of this is he's trying to

40:45

bring strength to his argument are using morality or well,

40:48

I don't know, morality specifically, but using

40:50

their estimation, their theory of

40:52

what the game is about

40:54

out. Yeah. Constructive interpretation. Right. So the

40:57

game was about intellectual

40:59

excellence. Is

41:01

there's intellectual

41:02

fortitude in resisting someone else's interpretation

41:04

is that part of intellectual excellence? And

41:06

I don't actually know what the decision was

41:08

made about. I don't think anybody was

41:12

ever just qualified for merely grinning,

41:14

intimidatingly at his opponent. Like, I think the

41:16

decision was made Dylan, like,

41:18

no,

41:19

that it's

41:20

something that you should be able to stand up to, that you should just be able

41:22

to concentrate on your moves and

41:24

whatever, whereas if the person was

41:28

like, What do you What do you got? You gotta move now? You gotta move it if you're gonna like,

41:30

if you're verbalizing like that, that is intrusive

41:32

in a way that merely grinning is

41:36

not. They're pulling out a gun and holding it to their head and

41:38

saying, okay, there's one bullet in

41:40

the chamber. Think very carefully about

41:42

how you're going to move next

41:44

I mean, let's have real intimidation

41:47

here, Mark, of you. Yeah. These nerds

41:49

aren't just gonna be be

41:51

able to it with you. I'm not touching you.

41:54

I'm not touching you. That wouldn't be a hard

41:56

case, Dylan. The grinning is a hard case.

41:58

That's

42:00

the point. do think it's a good example. I mean, Wes brought up at the very beginning

42:02

this idea of principles and meta principles

42:04

and stuff like that. And I think this is a good

42:06

example of how you understand that a game

42:08

actually works.

42:10

Right? I think you pretty quickly get into there. There's

42:12

some version of fairness that's

42:14

at play in a game in order to

42:16

have the game actually work. Otherwise, the

42:20

game breaks. that's kind of an intellectual exercise. Well, if you don't

42:22

have fairness where fairness is sort of

42:24

equal following of the

42:26

rules and kind of plain and

42:28

transparent way, then it's not

42:30

really a game anymore. It's something else.

42:32

And intimidation goes in that direction.

42:34

Right? And then the judgment becomes whether it

42:36

is intimidation or whether it's just part

42:38

of the dynamic of the game

42:40

itself in its own

42:42

manifestation. Yeah. And Mark, I think he would give a good

42:44

example of Yeah. I

42:46

think we need to in interpreting law,

42:48

we'd really do need to look to

42:50

purpose, right, in the same way. We'd

42:52

say, well, what is a chess? What is it? What

42:54

is it? it's a game,

42:56

therefore, with rules, therefore, what it is

42:58

depends on what it is

43:00

for. And if we were aristotelians, we would

43:02

say that that's always Casey, anyway. But

43:04

what it is depends on what it is for, and

43:06

we have to take that into account,

43:08

which again, I don't think means necessarily

43:10

taking into account the intentions of

43:12

legislators. I mean, ultimately, the end of the Shapiro wants defend positivism

43:15

by saying, we are still

43:17

interested in social facts and

43:20

those social facts are the intentions of the designers

43:22

of the whole system. So we figure

43:24

out what they think the system is for,

43:27

which I don't think that's right?

43:29

Because I think we can actually derive the purpose of

43:31

the system from the way it historically

43:34

has actually

43:36

functioned But anyway, that's a whole other

43:38

dispute. But I think this idea of the purpose of the

43:40

system is important. You know what Shasbury would

43:42

say that the purposes in the humans

43:44

who design the system are reflected in

43:46

the purposes of God ultimately. So there you go. That's the archimedean

43:48

point. But now, Seth, you say the sensible thing

43:50

that you Seth going to say. Now,

43:54

wasn't gonna say anything sensible. What I was gonna say is if we take

43:56

that tact with, what we'll end up with is

43:58

at least in the case of the American

43:59

Judicial System.

44:02

Wes

44:02

end up right back in the the Nazi, the

44:04

racial injustice and all that stuff. Another

44:06

just funny thing that the

44:07

Dworkin brought up was, what game are we playing?

44:10

Are we

44:12

playing Scores discretion? Is that the name of the game?

44:14

Even if it's the scorer or the umpire,

44:16

the judge who's making the final decision.

44:19

The

44:19

game is not. Score is discrete. That would be

44:21

a whole different game. That would be

44:23

all like, let's bribe the

44:25

score scorekeeper. They're the ones that

44:27

are determining ultimately whether it's on the

44:29

constant point or not? Yeah. glad that we're having the

44:32

episode in two episodes

44:34

on going back to the Dobbs decision. And what

44:36

was the

44:38

super meaning context was Unenumerated

44:41

rights. Unenumerated rights.

44:43

Why? Dworkin? Yeah. another follow-up

44:46

pages of It's fine. It's fine.

44:48

It's it's not good. Okay. But but

44:50

it'll be I think that this question

44:53

of principles and the balance of

44:55

conservatism versus simplicity and

44:57

whether there are even higher

44:59

level principles that one would rightly understand

45:01

as the guiding ones and whether they are

45:04

historically oriented, like, you know, that there's a

45:06

principle of maximizing freedom associated

45:08

with the

45:10

American constitution or not, those that I think are

45:12

going to be

45:13

super interesting. Yeah. And a direct continuation

45:15

of what we're talking

45:18

about here. as is probably blood MRIdian,

45:20

which you are all talking

45:22

about? By Corrick McCarthy, next time without me?

45:24

Well,

45:24

there is a

45:26

Judgment. in blood Meridian, so

45:28

we could I think there are

45:30

talk about the law will actually be useful for

45:32

that book. But I was thinking

45:34

about exactly that I was reading it. Like, there's something

45:38

strangely, uncomfortably

45:39

coincidental about or

45:42

about that. Yes. And it

45:43

is a complete

45:43

coincidence that we're being blood

45:46

meridian in the

45:48

weeks

45:50

after McCarthy just came

45:52

out with a new book called Passengers that

45:54

actually there's two of them. They published a

45:56

chapter in New York Times or a section

45:58

in the chapter. What is it

45:59

about? Passenger is

46:02

about

46:02

well, at least the

46:03

section I read was

46:06

about a

46:08

character who's treasure diver treasure recover, but

46:10

there's a review of it in The New

46:12

York Times as well. Alright.

46:14

Thanks

46:15

everybody for listening. let

46:17

us know what else you want us to talk about, email us

46:19

through the website at parsleygannlife dot

46:21

com or PEL at

46:23

parsleygannlife dot com You could reach

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Twitter, follow us on

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46:32

everybody, and good night.

46:33

in a row