Re: Originalism and Freedom

In replying to my response to his original post, Gus makes some very interesting remarks, many of which I agree (specifically regarding the contradictions within the Republican platform).  The point of my original post, however, was that you were not fleshing out these contradictions (at least this is how your post read).  Rather, you claimed that the republican platform implies an extreme form of nationalism.  My point was that this is wrong.  The republican platform implies nothing.  It is completely contradictory (I believe the same is true about the democrat platform as well).

Also, an originalist interpretive methodology does not imply a reverence to the past vs. the denial of authority to the present, nor does it imply a vacuous conception of freedom.  At most, it implies a kind of distrust for government and legal officials in general.  By anchoring the interpretive object in concrete rules, the originalist methodology seeks to limit the discretion of the interpreter (i.e., the norm applier).  If the originalist was necessarily preoccupied with the authority of the "founding generation," she would recognize that many clauses of the Constitution are standards rather than rules (e.g., "cruel and unusual punishment").  Standards require certain evaluative judgments be made downstream by the norm-applier rather than the norm-creator.  Thus, the norm-creator, by positing a standard, indicates the intention that evaluative judgments are to be made by the norm-applier.  Originalists evince a certain distrust for legal officials by re-interpreting standards into rules ("cruel" means x, y, and z).  This distrust may be the result of a variety of different political or pragmatic beliefs.  For example, one may believe that (1) the point of having a fundamental legal rule (i.e., a constitution) is to lock in certain political-moral principles that cannot be changed by the whim of those currently in office, (2) the point of having "law" in general is to authoritatively settle political-moral disagreement, and (3) by granting officials wide discretion in interpretation, the point of such a system is undermined because we (the originalist) do not trust officials to interpret the norms in accordance with principles determined to be settled.  In such a situation, one may argue for an originalist methodology without any reverence for the past. 

Notice that this argument proceeds without denying the moral right of a generation to alter the core principles by which they are governed.  Rather, it assumes that a "society" reproduces itself over many generations, that such a society is never made up of a single generation, and the belief that the whole point of establishing a fundamental rule is to authoritatively settle certain disputes such that the fundamental structure of the system need not be in constant flux.  Thus, in the event that a generation desires a change of the core principles that the society is governed by, it requires that a vast majority of such a society to agree.  The reason for this super-majority requirement is that it permits the fundamental rule of the system to function as a fundamental rule.

There is one further point worth noting.  Alternative interpretive methodologies do not imply an added appreciation for the moral authority of a generation to determine the principles by which they are governed.  The Dworkinian interpretive methodology is decidedly anti-democratic and places great weight on the past. 

I believe that the crux of the political rhetoric is not to be found in any fundamental belief regarding democratic authority and the moral right to determine the fundamental principles of a system.  Rather, interpretive methodologies are argued for based on political expediency.  If republicans believe that, based on the current judicial climate, judges are likely to overturn their favored legislation, they will argue for whatever interpretive methodology reins in the courts.  If democrats believe that, based on the current political climate, state legislatures are likely to produce laws contrary to their favored policies, they will call for an interpretive methodology that produces the results they desire.  It cuts both ways and both sides are fraught with contradictions.    

Re: Originalism and Freedom

"I think this is a good reminder that the Republican platform implies an extreme nationalism that necessarily abridges the concept of "freedom" to conform to an us versus them dichotomy."

Although I am not a "Republican" (or a "conservative" or "right wing" etc.), I think that this statement is misguided.  Much of the rhetoric of Republican politicians (I assume you are not discussing theorists) surrounding originalism as a constitutional theory (and the Republican platform in general) urges "States' rights" and restrictions on the federal government.  This is antithetical to the idea of nationalism.  Moreover, any political theory justifying “the state” (short of cosmopolitanism and world government) perpetuates an “us vs. them” mentality.  It separates people by geographical boundaries and asserts special obligations to “fellow citizens” that do not apply to “outsiders.”  So I think that your hostility towards the Republican platform is too narrow and under-inclusive.

Also, your focus on the authority of the past is somewhat misguided as well.  One thing to notice about the nature of law is that all laws, absent an expression to the contrary, claim authority to bind future generations.  Any theory justifying the authority of law justifies the authority of one generation to bind future generations.  Notice that a law enacted by Congress in 1934 is valid today, absent an express change or amendment.

Dworkin's website

As I mentioned earlier, Ronald Dworkin's new book was recently released.  In the Preface, he mentions that he will have a website responding to critical assessments of his work.  Although not yet in the full swing of things, here is the website:

http://www.justiceforhedgehogs.net/

I am extremely curious to see how this plays out.  You don't often have the opportunity to see a world-renowned philosopher engage in an on-going discussion with his critics.  Should be great.

New releases

Two new releases arrived this week that are of importance to the legal philosophy field and moral/political philosophy in general.  First, Ronald Dworkin's Justice for Hedgehogs has finally hit the public.  I was able to read bits and pieces through manuscripts available via his NYU Colloquium, but I am eager to read it in its entirety.  This is more universal in scope, setting forth Dworkin's general theory of value, touching on everything from meta-ethics, to equality, to political and legal philosophy.  Second, Scott Shapiro's Legality finally arrived.  I am excited to read this, for his work has inspired much of my current interests in analytic legal philosophy (although more of a reaction than an inspiration).  Unfortunately, I am really busy over the next few weeks, so I won't be able to sink my teeth into these for a little while.  Nevertheless, I am still excited to get after it soon enough.

Update:  Larry Solum on Legality:

I've read multiple versions of several chapters, an earlier version of almost the whole book, and most recently the uncorrected page proofs. I feel confident that Legality is one of the very best books in general jurisprudence in many many years; it will certainly be on my list of ten selections from the Legal Theory Bookworm from 2010.  I suspect that Legality will be become a standard work for students of law and philosophy.  It is both deep and clear.

Everyone who engages in the academic study of law should read Legality--it is that important.  Buy it and read it!

Confirmation hearings and judicial perjury

A well-known legal philosopher made the following comment to me a few times over the last few months (paraphrasing a bit):

“According to almost everyone, every legal philosopher, law professor, and judge, it is impossible to reach a decision in all cases without referring back to your own personal morality and political morality.”

This does not mean that it is impossible to decide what the law is without referring to your own morality.  There is great disagreement about that (that is the schism between positivists and non-positivists / Dworkinians).  Rather, the point is that all legal rules are universal and general, many with vague language and/or (possibly) indeterminate language.  There are “hard cases” that come before judges.  On the positivist account, there are “gaps” in the law, and the judge most fill in these gaps by assuming a legislative-type role.  This is judicial discretion.  According to Raz, a judge has a duty to fill in these gaps in the best possible way.  Dworkin, on the other hand, claims that these hard cases do not represent gaps in the law, they are just hard cases, where a judge must do what she always does: engage in an interpretive enterprise.  The judge must select the rule that best “fits” the prevailing legal landscape and provides the “best justification” for the law.  On his account, whatever rule that satisfies this two-part interpretive test actually is the law.

Leaving this debate aside, what interests me is the fact that both the positivists and non-positivists agree on what a judge must do: refer back to their own beliefs moral/political beliefs.  What is interesting is that every potential federal judge and potential Supreme Court justice says exactly the opposite in their confirmation hearings.  “The judge’s job is to apply the law.  The judge is not to consult her own personal morality.”  What are we to make of this?  Barry Bonds and Roger Clemens, as well as countless others, are prosecuted for lying to authorities, Roger Clemens specifically for lying to a Congressional committee.  Why do judges get a free pass?  This is especially interesting considering the existence of demanding legal and judicial ethical codes that require truthfulness in court, etc.  What gives?

Retrospective increases in punishment

Suppose we adhere to some sort of retributive theory of punishment, that “the punishment should fit the crime.”  Suppose further that Eli is convicted of murder and sentenced to 15-20 years in prison, the maximum permissible under the sentencing guidelines at the time of the murder (based on a retributive judgment that 15-20 years is just).  Now suppose that officials in the system correctly realize that the principles of just punishment require a sentence of 25-30 years in prison (‘correctly’ being stipulated for the hypo).  Is it wrong for the system to alter Eli’s punishment, increasing it to fit the correct retributive calculation?  Is it unfair?  If so, why?  What values usually underlie our judgments condemning retroactive law-making?  Do they apply to cases of retrospective increases in punishment?

Hart and the rule of recognition

In the Concept of Law, H.L.A. Hart set forth his theory of the rule of recognition. An interesting aspect of this idea is that it attempts to solve a problem of legal validity/authority (the “chicken or egg” problem) by introducing an observable practice among officials and subjects as the foundation of all legal systems.  When one is confronted with a rule R claiming legal authority, a question arises: “what gives this rule R authority?”  A natural response (perhaps by an official demanding conformity to the rule) is to point to some other rule: “statute X confers authority on rule R.”  But again, one may ask “well, what gives statute X authority?”  This process could go on ad infinitum.  This is where Hart’s rule of recognition enters the picture: we eventually get to a point where the answer to the question “why is this rule (legally) authoritative?” is simply this: “it just is.” 

The “it just is” aspect of Hart’s rule of recognition is seen in its description: it is a practice among officials and subjects of locating criteria of validity, and it is manifested in the practice of identifying norms as rules of the system by applying such criteria.  It is further illustrated when Hart claims that the existence of the rule of recognition is a matter of external fact, not a matter of validity or invalidity.  He states “[n]o such question can arise as to the validity of the very rule of recognition which provides the criteria; it can neither be valid nor invalid but is simply accepted as appropriate for use in this way” (Hart at 109).  This is why the internal point of view is crucial to Hart’s theory.  The “it just is” answer is partially constituted by the fact that the substance of the ultimate rule is accepted (as manifested in practice) as a norm, thus providing the criteria applied by the officials of the system in identifying valid laws.  This practice/acceptance acts as a backstop to the perpetual question “well, what makes this rule (legally) authoritative?”  (I understand Hart as providing a descriptive account of law’s normativity, merely describing it in terms of people’s belief).

Thus, Hart provides an account aimed to ground legal validity in the practice and belief of legal officials.  This account of the grounds of law is, however, vulnerable to an important critique set forth by Ronald Dworkin in Law’s Empire.  Dworkin argues that Hart’s theory of the “grounds of law” cannot account for “theoretical disagreement” in law.  Theoretical disagreement, according to Dworkin, is disagreement about the ultimate criteria of legal validity, disagreement about the “grounds of law.”  He claims that such disagreement is prevalent in legal practice and legal academia. 

The strength of this argument is seen in its weakening of Hart’s account as illustrated above – the “it just is” aspect of the rule of recognition.  Essentially, Dworkin’s argument claims that there is no such agreement in the legal community: no one can honestly claim “it just is” in light of the theoretical disagreement about the grounds of law.  Thus, a positivist account of the grounds of law must be able to answer Dworkin’s critique, either by locating a place for theoretical disagreement within a positivist framework or denying its significance.  Brian Leiter has recently attempted such a project (Explaining Theoretical Disagreement, 76 U. Chi. L. Rev. 1215 (2009)) , but I will not review the argument here.