Maybe they say, okay, the rules are now that for batters who are wearing a red hat, they get four strikes. So in this course, we've spent a lot of time talking about the theory of law of H.L.A. Hart. Hart was a legal positivist. We read all about and discussed at great length his theory of law that centrally involves a rule of recognition.
One, you know, fundamental rule that sets out the criteria that all the other laws in the legal system have to meet in order to be laws of the legal system. Okay, this will be important in a bit. What we are now going to do today is talk about some of the criticisms of Hart's theory. Some of the ones... that were formulated and stated and espoused by Ronald Dworkin.
We are only going to talk about some of Dworkin's criticisms of Hart. There are several of them. But the one or the ones that we're going to talk about today, you can't understand them unless you understand Hart's theory of adjudication. Adjudication just means judging or deciding court cases.
Here's the question. Hart's theory fundamentally involves rules. It's with the idea of rules that he originally criticized Austin's theory of law, right? It's all about rules.
You've got a rule of recognition. It recognizes all these other rules. How does that translate into the arena of adjudication?
That is, are there just all of these rules and the job of the judges is to sort of formulaically apply the rules to the cases? That's one. right, way of understanding what's going on with judges, one descriptive account of adjudication, right, is what's called formalism.
Formalism is the idea that, look, judges are like DMV employees. There's some rules and the employees in the DMV, they just know the rules. They take what, you know, the documents that you show them.
They're like, okay, you've got to have four documents. And then they just count the documents and they see if they meet the criteria set out in the rules. and if they do, they stamp your thing and they give you a license, and if they don't, they don't. There's no, you know, creative energy that is required to formulaically apply these rules in this way. There's no discretion involved, right?
That's the formalist characterization of adjudication. No one really thinks that this sort of radical or extreme version of formalism is correct. On the other side of the same spectrum, is what we might call extreme realism about adjudication. This is the view that, look, judges just do whatever they want. They're not applying anything.
They just decide cases based on their own biases, and not only their own biases, their own whims. There's nothing constraining them. And then sometimes they will attach some trappings or some... charade of rules and applying these rules to these cases, but really they're just doing whatever they want.
These are the two extremes in the various potential theories of adjudication. And Hart is, in his, you know, understanding of what judges are doing, he's trying to find some middle road between the two. The way that he does that is with the idea of the open texture. law. Here's the idea.
Words have meanings, but those meanings are very often vague. And so the thought is that there's always, for every possible rule that you could ever come up with, that you could ever state out loud, that you could ever write down on a piece of paper or a piece of parchment or anything, for any possible rule, there's always going to be some cases where it's just not clear how the rule applies to those cases. The famous example is a rule that says something like the following.
No vehicles in the park. That's a rule of the park. There's a park and there's some rules, and one of them is no vehicles in the park.
This is a famous example from Hart himself. There's going to be lots of cases where it's not clear how this rule applies. Like, sure, if you drive your car through the park, then you've broken this rule. That's a case where the rule is violated.
And if you just put on some running shoes and jog through the park, then you haven't violated this rule. What if, for example, you're wearing roller skates? Are roller skates vehicles? Maybe, maybe not.
Okay, you say they're not vehicles. How about roller skates with engines? Little motorized, you know, or battery-operated roller skates.
Are those vehicles? They're like two little cars on your feet? Well, if you say that those still aren't vehicles, what about the motorized scooter or whatever? Or a slightly bigger scooter? The point is just this.
The notion of a vehicle is vague. I mean, almost all words are vague. There's going to be some borderline cases where it's just not clear if something counts as a vehicle, at least not for the purposes of a rule like this.
Here's another example. This is a famous example as well. Say that there's a war memorial in the park.
Well, what the memorial looks like, it's a statue. It's a big statue, and it's got some statues of soldiers in the war, and then it's got a jeep, right? and the soldiers are made out of bronze.
But for the jeep, they just took an old jeep from the war itself and painted it bronze or something like that. And it's part of the statue. It's covered in bronze and the statue soldiers are sitting in it and they put this memorial in the park.
It's a jeep. Is that a vehicle for the purposes of this rule? Was this rule broken when they put this big statue, this big memorial in the park?
What if they took the engine out? What if they didn't take the engine out but they cut one of the wires? Or emptied the gas tank?
Or left the gas tank full? What's the point of mentioning all of this? The point is this. Rules are necessarily, well, open in some cases. It's just unclear.
There's going to be cases where it's unclear how a rule applies or not. These cases, we could call them, sometimes they're called hard cases, right? Or they're not at the core of the legal system or the core of cases that a rule naturally applies to. They fall into the penumbra.
Penumbra just means the periphery, the edge, the edges. In these cases, Hart says, Hart basically gives the realist answer. He says, look, when you're talking about hard cases, the judges have discretion. They do whatever they want, right? But.
When you're not in the penumbra, when you're dealing with an easy case, a straightforward case of someone just driving their car through the park, then the judges are doing what the formalist says they're doing, right? They're just applying a rule to a particular case. That's the middle road, is to say that, well, sometimes the formalists are right, and sometimes the extreme realists are right.
In the hard cases, the judges, well, they're applying discretion. They can do whatever they like. And in the easy cases, well, the judges are just applying some rule. in a sort of automatic fashion.
This is all part of H.L.A. Hart's theory of adjudication. But notice something. What Hart ends up saying is that in the hard cases, when you're in the penumbra and you get some weird case of someone riding some motorized roller skates through the park or something, something that wasn't anticipated by the rulemakers when they originally made up the rules, when you get a case like that, the judges are...
legislating. They're making up rules, right? That's what this theory is.
It's a theory that lets judges or says that judges make law. Judges who are in many legal systems not elected, they're not chosen and, you know, officially given the power to legislate, to make law, but on Hart's theory, they do make law. This is the point or one of the points where Dworkin is going to latch on and start criticizing Hart's theory.
But keep something in mind as we go forward. Dworkin isn't just going to be criticizing Hart's theory of adjudication, his account of what judges are doing in various types of cases. Dworkin's criticism is going to get right to the heart of the matter. He's going to be attacking H.L.A. Hart's whole theory of law.
The whole thing is going to come under attack. But if we're going to understand Dworkin's criticism of Hart, we also need to understand a distinction that Dworkin makes between rules and what he calls principles. This is a distinction that Hart himself doesn't make, and it's going to be helpful to Dworkin in issuing this criticism. I'm not saying this criticism succeeds.
It's very controversial whether it succeeds or not, but well. Here's what we have to know in order to understand it. Rules, Dworkin says, are Well, they're standards for behavior that they apply in an all-or-nothing fashion. You either violate the rule or you don't.
Principles, on the other hand, well, they apply in cases, but they can be outweighed by other considerations. And even when they're outweighed, they still apply. Normally, when a rule is sort of defeated by something else, the rule just stops applying. Here's an example of...
Uh... of a rule that Dworkin gives in part of what we read for today from Taking Rights Seriously. Here's what Dworkin says. In baseball, a rule provides that if a batter has had three strikes, he is out. An official cannot consistently acknowledge that this is an accurate statement of a baseball rule and decide that a batter who has had three strikes is not out.
That is, Look, there's a rule, and the rule says that three strikes and you're out. There are cases, of course, where maybe someone has three strikes, but they're not out, right? Maybe they change the rules. Maybe they make an exception. Maybe they say, okay, the rules are now that for batters who are wearing a red hat, they get four strikes.
Well, but then it's no longer really the case that three strikes... you know, means you're out. Well, then it's really three strikes you're out unless you're wearing a red hat, in which case you get four strikes, right? That's the new rule, right?
A rule in this sense either applies or it doesn't. If it doesn't apply to players wearing a red hat, well then it just doesn't apply, right? It's not like, well, they're still out, but you know, there's other things going on. There's the red hat. That's not what's going on.
Principles, on the other hand, Well, principles can still apply to a case, but they can lose out to other considerations. So here's something that Dworkin says about principles just a few paragraphs later. We say that our law respects the principle that no man may profit from his own wrong, but we do not mean that the law never permits a man to profit from the wrongs he commits. The important or the crucial word here is never.
The principle is a sort of underlying value of the legal system, that people shouldn't profit from bad things that they do, right? Or illegal things that they do. But this is just a sort of underlying, guiding, fundamental, well, principle.
It's not a rule that either applies or it doesn't, right? So Dworkin gives a whole bunch of examples, but say that someone, you know, violates... violates a parole condition, right?
And they leave the state when they're not supposed to leave the state. And they leave the state in order to place some brilliant bet in another state or make some brilliant investment in some other state. Well, they'll be punished for violating their parole. Maybe they'll be sent back to prison, but they'll get to keep the profit from their investment.
So... And in the long run, they may profit enormously. And so the legal system has this principle underlying it that you're not supposed to profit from doing the wrong thing or from doing something illegal or whatever.
You're not supposed to. And that principle still applies all the time. But there are cases when, well, people profit from their own wrongs.
How is all of this relevant? Well, here's the thing. Dworkin thinks that... There are principles that are part of the U.S. legal system. This is one of them, he thinks, that people aren't supposed to profit from their own wrongdoings, from the bad things that they themselves do, right?
They're not supposed to win because of them. This is part of the U.S. legal system, but it's not a rule of the system, and it doesn't meet the criteria set out in the rule of recognition. Think about the hard cases, the cases where You know, it's not clear how the law applies.
Hart thinks that, well, the judges just get to decide. They have discretion. If the judges have discretion in the hard cases, then they can decide whatever they like. Dworkin calls this strong discretion. He distinguishes, in the reading that we read for today, three types of discretion, right?
Three things that we mean by the word discretion, and he's The relevant kind is the strong kind. That's the kind where someone with this kind of discretion, they can just do whatever they want. They're not constrained really in any significant way. There's not some criteria that they're supposed to be applying.
There's not some principles that they're supposed to be weighing or considering or anything like that. They just get to decide whatever they want. Well, Hart thinks that judges can legislate.
They have strong discretion in the Hart cases. Dworkin thinks not only is this unjust, and not only, you know, because Well, not only is it unjust because the judges weren't elected, Dorkin says that, and not only is it unjust because it punishes people for things that were not, strictly speaking, illegal when they did those things, right? That's what happens if you decide a case, right, a hard case, and you punish someone for something.
If in the act of punishing them, you are thereby making that thing illegal, well, then that means that it wasn't illegal previously when the person did the very thing. Anyway, in addition to those two points against, you know, Hart's theory of adjudication, these are points against the idea that judges legislate or have strong discretion in hard cases. In addition to those, Dworkin just thinks it's rather obvious that, as a descriptive matter, that judges in these hard cases, well, they're applying the underlying values or the underlying principles of the legal system. If you're deciding...
whether there should be no vehicles allowed in the park, as a judge, what you're doing is you're thinking about the purpose of all the rules that apply to the park in the first place. Well, maybe the point of having these rules is so that lots of people can enjoy the park, and that one person's enjoyment of the park doesn't interfere with another person's enjoyment of the park. And maybe the other reason is that the park is a place for people to be in touch with nature, and Driving vehicles through the park interferes with that. People can't walk because they're always afraid they're going to be hit by cars or trucks. And also, you know, it reminds you that you're not out in the wilderness when you see just a car rumbling.
So the purpose of this restriction is, well, to allow people to commune with nature, to allow people to share the space equally. And so on the basis of this, you may decide, oh, the... The motorized roller skates, they count as vehicles because people will be going too fast and they'll bump into each other.
People can't enjoy the park together and they'll be loud and they'll sort of stand out against the background of nature or whatever. The point is there's some underlying principles that you're appealing to when you're a judge and you're deciding how to rule in this hard case. Okay, are these principles a part of the rule of law? of the United States legal system or any legal system.
If they are a part of the legal system, well, then, one, it's not true that judges have strong discretion. So that's a problem for Hart's theory of adjudication. But also, if these are a part of the legal system, well, that's a problem for Hart's whole theory because the rule of recognition has no room for them.
Think about the principle that... Well, as Dworkin puts it, no man may profit from his own wrong. That doesn't meet any of the criteria set out in the rule of recognition or any criteria set out in any subsequent rule of the legal system.
The rule of recognition says that the queen in parliament gets to create law or whatever it says or that the judges have a duty to impose rules that were created by the queen in parliament and some other rules. This principle, this underlying principle, which may be unspoken altogether or may be unspoken for hundreds of years, this principle doesn't meet any of those criteria. So Hart's theory gets the result that principles are not part of the legal system. But Dworkin thinks they manifestly are. Okay, so I'll just conclude by mentioning a couple of things.
One thing I'll mention is that Hart doesn't himself make this distinction. And when he characterizes rules, He doesn't say that they apply in this all-or-nothing fashion. Although Dworkin is kind of right that the way Hart typically talks about rules, they sure seem like rules in Dworkin's sense and not principles in Dworkin's sense.
Anyway, Hart doesn't talk about this, and later in his career, Hart will just sort of seemingly acknowledge that principles are part of a legal system. The question is whether that's legitimate, whether he can pull that move off, right? Whether the rule of recognition...
can really allow for principles. It's not clear. One thing that we read for today was a little bit of work at the end, which I'm not going to go into in detail, although I'm happy to answer questions about it.
Some work by Neil McCormick. McCormick, I believe, was a student of Hart's, but even if he wasn't, he's a Hartian, that's for sure. And McCormick thinks that you can understand a legal system as having a rule of recognition as its foundational rule, and that rule of recognition can have a sort of indirect relation with principles, such that the principles get to be a part of the legal system.
on a broadly Hartian theory anyway.