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COMPILAO DOS HAND-OUTS DE LMJ. (Seminrios 01 e 07 em outros docs.). Seminrio 02- Dworkin- Modelo de Regras I, pp. 50-72. 5.

O Poder Discricionrio:
5.1. O conceito de poder discricionrio s est perfeitamente vontade em apenas um tipo de contexto: quando algum em geral encarregado de tomar decises de acordo com padres estabelecidos por uma determinada autoridade. (Exs.: Sargento, Juiz de competio, etc..) O poder

5.2.3.1. O sentido forte de poder discricionrio no equivalente licenciosidade e no exclui a crtica O poder discricionrio de um funcionrio no significa que ele esteja livre para decidir sem recorrer a padres de bom senso e equidade, mas apenas que sua deciso no controlada por um padro formulado pela autoridade particular que temos em mente quando colocamos a questo do poder discricionrio.

5.3. Retomada da doutrina positivista do poder discricionrio do juiz (essa doutrina afirma que se um caso no for regido por uma regra
estabelecida, o juiz deve decidi-lo exercendo seu poder discricionrio) objetiva-se: (i) examinar essa doutrina e (ii) testar sua relao com a anlise dos princpios. 5.3.1. Em qual dos sentidos de poder discricionrio devemos entender tal doutrina positivista? 5.3.1.1. primeira vista eles empregariam poder discricionrio no primeiro sentido fraco, apenas para dizer que, s vezes, os juzes devem formar seu prprio juzo ao aplicar padres jurdicos. 5.3.1.1.1. Crtica de Dworkin tautolgica a proposio segundo a qual, quando no h regra clara disponvel, deve-se usar o poder discricionrio para julgar; alm disso, ela no tem nenhuma relevncia para o problema de como explicar os princpios. 5.3.1.2. Os positivistas veem sua doutrina do poder discricionrio judicial como um insight e no como uma tautologia (como se ela tivesse alguma incidncia na anlise dos princpios);

discricionrio no existe a no ser como um espao vazio, circundado por uma faixa de restries (trata-se de um conceito relativo). 5.2. O significado de poder discricionrio afetado pelas caractersticas do contexto;
5.2.1. Poder discricionrio em sentido fraco utiliza-se quando os padres que uma autoridade pblica deve aplicar no podem ser aplicados mecanicamente, mas exigem uso da capacidade de julgar (quando o contexto por siso no esclarecedor); 5.2.2. Um segundo sentido fraco usa-se para dizer que um funcionrio pblico tem autoridade para tomar uma deciso em ltima instncia e que esta no pode ser revista e cancelada por nenhum outro funcionrio; 5.2.3. Sentido forte usa-se para dizer que, em certos assuntos, um funcionrio pblico no est limitado pelos padres da autoridade em questo; empregamos a expresso para comentar sobre o mbito de aplicao dos padres e sobre as decises que eles pretendem controlar.

5.3.1.2.1. Hart, por exemplo, pensa que quando os juzes possuem poder discricionrio, os princpios que eles citam devem ser tratados de acordo com a nossa segunda abordagem, como aquilo que os tribunais tm por princpio fazer; 5.3.1.2.2. Portanto, parece que os positivistas, algumas vezes, entendem sua doutrina no sentido forte de poder discricionrio; nesse sentido, ela tem relevncia para a anlise dos princpios os padres jurdicos que no so regras e so citados pelos juzes no impem obrigaes a estes.

5.4.3.1. A incompatibilidade entre os princpios e a teoria positivista dificilmente pode ser considerada como um argumento em favor de que os princpios devam ser tratados dessa ou daquela maneira Ora, se os princpios no podem ser submetidos a um teste, ento ele deve apresentar alguma outra razo por que eles no podem contar como parte do direito.

5.5. Crtica de Dworkin a esses argumentos a no ser que pelo


menos alguns princpios sejam reconhecidos como obrigatrios pelos juzes e considerados, no seu conjunto, como necessrios para chegar a certas decises, nenhuma regra ou muito poucas regras podero ser ento consideradas como obrigatrias para eles. 5.5.1. Argumento: 5.5.1.1. As regras criadas por leis esto sujeitas interpretao e reinterpretao, por vezes mesmo quando disso resulta a no execuo daquilo que chamado de inteno do legislador; 5.5.1.2. Se os tribunais tivessem o poder discricionrio para modificar as regras estabelecidas, essas regras certamente no seriam obrigatrias para eles e, dessa forma, no haveria direito nos termos do modelo positivista; 5.5.1.3. Portanto, o positivista deve argumentar que existem padres, obrigatrios para os juzes, que estabelecem quando um juiz pode e quando ele no pode revogar ou mudar uma regra estabelecida.

5.4. Que argumentos um positivista pode utilizar em favor da doutrina do poder discricionrio no sentido forte e da segunda abordagem a respeito dos princpios?
5.4.1. Poderia argumentar que os princpios no podem ser vinculantes ou obrigatrios Tal argumento seria um erro, pois no h nada no carter lgico de um princpio que o torne incapaz de obrigar uma autoridade; 5.4.2. Poderia argumentar que embora alguns princpios sejam obrigatrios, no sentido de que o juiz deve lev-los em considerao, eles no podem prescrever um resultado particular Esta no parece ser uma razo para concluir que juzes que devem haver-se com princpios possuam poder discricionrio, j que um conjunto de princpios pode ditar um resultado; 5.4.3. Poderia argumentar que os princpios no podem valer como lei, pois sua autoridade e mais ainda o seu peso so intrinsecamente controversos Isso no diferencia um juiz de outros funcionrios pblicos que no possuem poder discricionrio.

5.6. Quando, ento, um juiz tem permisso para mudar uma regra de direito em vigor?

5.6.1. O juiz considera que a mudana favorecer algum princpio; dessa maneira, o princpio justifica a modificao; 5.6.1.1. Porm, no qualquer princpio que pode ser invocado para justificar a mudana; caso contrrio, nenhuma regra estaria a salvo. 5.6.2. O juiz que se prope a modificar uma doutrina existente deve levar em considerao alguns padres importantes que se opem ao abandono da doutrina estabelecida; esses padres so, na sua maior parte, princpios, incluindo a supremacia do Poder Legislativo e a doutrina do precedente.

porque os vrios argumentos que podemos oferecer em seu apoio so insuficientes, por que ento tantos juristas inteligentes e cuidadosos a adotaram?
5.8.1. Parte da explicao reside na tendncia natural de um jurista de associar leis e regras e pensar o direito como uma coleo ou sistema de regras; 5.8.2. A razo principal para associar direitos e regras encontra-se no fato de que a educao jurdica consiste, desde longa data, em ensinar e examinar aquelas regras estabelecidas que formam a parte mais importante do direito; 5.8.3. Concluso: se um jurista pensa o direito como um sistema de regras e ainda assim reconhece, como deve, que os juzes mudam regras antigas e introduzem novas, ele chegar naturalmente teoria do poder discricionrio judicial no sentido forte do termo. 5.8.3.1. Os positivistas presumem que, se os princpios e polticas so padres do direito, ento devem ser regras; dessa forma, os leem como se fossem padres tentando ser regras, no havendo maneira de testar sua validade. Assim concluem que esses princpios e polticas no so regras vlidas de uma lei acima do direito- o que verdade- porque certamente no so regras; concluem ainda que so padres extrajurdicos que cada juiz seleciona de acordo com suas prprias luzes, no exerccio de seu poder discricionrio- o que falso.

5.7. O que fica implcito quando algum diz que determinada regra obrigatria:
5.7.1. Quando se diz que uma regra obrigatria sugere-se que ela sustentada de maneira afirmativa por princpios que o tribunal no tem a liberdade de desconsiderar e que, tomados coletivamente, so mais importantes do que outros princpios que contm razes em favor de uma mudana; 5.7.2. Sugere-se que qualquer mudana condenada por uma combinao de princpios conservadores, tais como o da supremacia do Legislativo e do precedente- princpios que o tribunal no tem a liberdade de ignorar; 5.7.3. Concluso: qualquer uma dessas linhas de inferncia trata os princpios e polticas como padres obrigatrios para as autoridades de uma comunidade, padres que regulam suas decises a propsito de direitos e obrigaes jurdicas.

6. A regra de reconhecimento:
6.1. Analisamos a primeira abordagem dos princpios e encontramos dificuldades. Que tal adotarmos a primeira interpretao? Teramos que abandonar/modificar tanto a doutrina do

5.8. Questo que se coloca: Se a teoria dos positivistas a respeito do poder discricionrio judicial ou trivial, porque emprega poder discricionrio no sentido fraco, ou sem sustentao,

poder discricionrio quanto a proposio de que o direito pode ser identificado por meio de testes do tipo especificado numa regra suprema? Se quisermos preservar a noo de uma regra suprema para o direito, deveremos ser capazes de formular algum teste que possa ser satisfeito por todos os princpios que fazem parte do direito (e apenas por eles). 6.1.1. Comecemos com o teste sugerido por Hart para ver se ele tambm se aplica aos princpios: Regra de reconhecimento (regra suprema, razoavelmente estvel, que especifica alguma caracterstica ou caractersticas, cuja posse por parte de uma regra sugerida tomada como uma indicao afirmativa e conclusiva de que se trata de uma regra); 6.1.1.1. Segundo Hart, a maioria das regras de direito so vlidas porque alguma instituio competente as promulgou esse teste no funciona para os princpios dos casos Riggs e Henningsen, pois argumentamos em favor de um princpio debatendo-nos com todo um conjunto de padres- eles prprios princpios e no regras- que esto em transformao, desenvolvimento e mtua interao; 6.1.2. Outro caminho? Hart sublinha que uma regra suprema pode designar como direito no apenas as regras promulgadas por instituies jurdicas particulares, mas tambm regras estabelecidas pelo costume. Segundo Hart, a regra suprema pode estipular que algum costume conte como direito, antes mesmo que os tribunais o reconheam. 6.1.2.1. Dificuldades: 6.1.2.1.1. Hart no pode utilizar como nico critrio a clusula de que a comunidade considera tal prtica moralmente obrigatria, pois isso no permite

distinguir regras jurdicas costumeiras de regras morais costumeiras; 6.1.2.1.2. Se, por outro lado, o teste consiste em saber se a comunidade considera a prtica costumeira como juridicamente obrigatria, a razo de ser da regra suprema solapada; pois, se a regra suprema simplesmente afirma que quaisquer outras regras aceitas pela sociedade como juridicamente obrigatrias, ento ela de modo nenhum fornece um teste, alm do teste que deveramos aplicar se no houvesse regra suprema. O tratamento dado por Hart ao costume implica que no se pode mais afirmar que apenas a regra suprema obrigatria em razo de sua aceitao e que todas as demais regras so vlidas nos termos da regra suprema. 6.1.3. Concluso: no possvel adaptar a verso de Hart do positivismo, modificando sua regra de reconhecimento para incluir princpios. 6.1.4. Outra possibilidade Dizer que os princpios constituem a ltima instncia e constituem a regra de reconhecimento do nosso direito; 6.1.4.1. Problemas: 6.1.4.1.1. Ao designar a nossa regra de reconhecimento como o conjunto completo dos princpios em vigor, chegaremos apenas tautologia de que o direito o direito; 6.1.4.1.2. Se, por outro lado, tentarmos arrolar todos os princpios, seremos mal sucedidos.

6.1.5. Se tratarmos os princpios como direito (primeira abordagem) Concluses: 6.1.5.1. Devemos rejeitar a ideia positivista segundo a qual o direito de uma comunidade se distingue de outros padres sociais por meio de um teste que toma a forma de uma regra suprema; 6.1.5.2. Nesse caso, devemos abandonar tambm a doutrina do poder discricionrio dos juzes ou esclarec-la a ponto de torn-la trivial; 6.1.5.3. Em relao ao terceiro preceito-chave do positivismo (uma obrigao jurdica existe apenas quando uma regra de direito estabelecida impe tal obrigao), colocamos a possibilidade de que uma obrigao jurdica possa ser imposta por uma constelao de princpios, bem como por uma regra estabelecida Assim, uma obrigao jurdica existe sempre que as razes que sustentam a existncia de tal obrigao, em termos de princpios jurdicos obrigatrios de diferentes tipos, so mais fortes do que as razes contra a existncia dela. 6.1.6. Novas perguntas que surgem: Quais princpios devem ser levados em conta e em que medida? Como decidir se um conjunto de razes melhor que o outro? Como se pode fornecer uma justificao para uma deciso judicial que estabelece que uma das partes tm uma obrigao jurdica? Etc.

Lgica e Metodologia Jurdica- Seminrio 03 Laws empire- Ronald Dworkin. Chapter one: what is Law? 1. Why it matters. 1.1. It matters how judges decide cases. 1.2. Lawsuits matter in another way that cannot be measured in money or even in liberty There is inevitably a moral dimension to an action at law, and so a standing risk of a distinct form of public injustice. 1.2.1. Judicial decisions affect a great many other people as well, because the law often becomes what judges say it is. 1.2.1.1. The Supreme Court is the most dramatic witness for judicial power, but the decisions of other courts are often of great general importance as well. 2. Disagreement about law. 2.1. Since it matters in these different ways how judges decide cases, it also matters what they think the law is, and when they disagree about this, it matters what kind of disagreement they are having. 2.1.1. Lawsuits always raise, at least in principle, three different kinds of issues: 2.1.1.1. Issues of fact What happened? Did the man really drop a wrench on his fellow workers foot? Obs.: If judges disagree over the actual, historical events in controversy, we know what they are disagreeing about and what kind of evidence would put the issue to rest if it were available.

6.2. Concluso geral do captulo Quando lemos casos difceis, o


positivismo nos remete a uma teoria do poder discricionrio que no leva a lugar algum e nada diz. Se nos livrarmos desse simples modelo de regras, poderemos ser capazes de um modelo mais fiel complexidade e sofisticao de nossas prprias prticas.

2.1.1.2. Issues of law What is the pertinent law? Does the law allow an injured worker damages from his employer for that sort of injury? 2.1.1.3. Issues of political morality and fidelity If the law denies compensation, is that unjust? If so, should judges ignore the law and grant compensation anyway? Obs.: People often disagree about moral right and wrong, and moral disagreements raises no special problems when it breaks out in court. 2.2. But what about the issues of law? 2.2.1. Lawyers and judges seem to disagree very often about the law governing a case. 2.2.2. Let us call propositions of law all the various statements and claims people make about what the law allows or prohibits or entitles them to have. Propositions of law can be from very general to very concrete. 2.2.3. Everyone thinks that propositions of law are true or false (or neither) in virtue of other, more familiar kinds of propositions on which these propositions of law are parasitic. 2.2.3.1. These more familiar propositions furnish what I shall call the grounds of law. 2.2.4. Now we can distinguish two ways in which lawyers and judges might disagree about the truth of a proposition of law. 2.2.4.1. An empirical disagreement about law: They might agree about the grounds of law- about when the truth or falsity of other, more familiar propositions makes a particular

proposition of law true or false- but disagree about whether those grounds are in fact satisfied in a particular case. 2.2.4.2. A theoretical disagreement about the law: They might disagree about the grounds of law, about which other kinds of propositions, when true, make a particular proposition of law true. 2.2.5. Empiric disagreement about law is hardly mysterious; but theoretical disagreement in law, disagreement about laws grounds, is more problematic Lawyers and judges do disagree theoretically. 2.2.5.1. The general public seems mainly unaware of that problem; the public is much more occupied with the issue of fidelity (In the great cases, do the judges discover or invent the law? 2.2.5.2. But since lawyers and judges do disagree in the theoretical way, the debate about whether judges make or find law is part of that disagreement, though it contributes nothing to resolving it because the real issue never rises to the surface. 3. The plain-fact view. 3.1. Most of legal philosophers are aware that theoretical disagreement is problematic. But most of them have settled on what we shall soon see is an evasion rather than an answer. 3.1.1. They say theoretical disagreement is an illusion, that lawyers and judges all actually agree about the grounds of law. I shall call this the plain fact view of the grounds of law. 3.1.1.1. Law exists as a plain fact, in other words, and what the law is in no way depends on what it should be. Why then

do lawyers and judges sometimes appear to be having a disagreement about the law? Because when they appear to be disagreeing in the theoretical way about the law is, they are really disagreeing about what it should be. Their disagreement is really over issues of morality and fidelity, not law. 3.1.1.2. The popularity of this view among legal theorists helps explain why laymen, when they think about courts, are more concerned with fidelity to law than with what law is. (The mechanical judge- follows the law x The progressive judge- follows the justice). 3.2. According to the academic version of the plain-fact view, the law may be silent on the issue in play, because no past institutional decision speaks to it either way. Or the law may be silent because the pertinent institutional decision stipulated only vague guidelines. 3.2.1. Then the judge has no option but to exercise a discretion to make new law by filling gaps where the law is silent and making it more precise where it is vague. 3.2.2. The question is replaced with a different question, equally distinct of the question of law, which we may call the question of repair. What should judges do in the absence of law? 3.3. Some academic lawyers draw radical conclusions from the sophisticated version of the plain-fact view of law. They conclude that there is never really law on any topic or issue, but only rhetoric judges use to dress up decisions actually dictated by ideological or class preference. 3.3.1. The career I have described, from the laymans trusting belief that law is everywhere to the cynics mocking discovery that it is nowhere at all, is the natural course of conviction once we accept the

plain-fact view of law and its consequent claim that theoretical disagreement is only disguised politics. 3.4. I have not yet offered reasons for my claim that the academically dominant plain-fact view of law is an evasion rather than a theory. We need actual examples of theoretical disagreement, which I shall soon supply. 4. A threshold objection. 4.1. This book is about theoretical disagreement in law. It aims to understand what kind of disagreement this is and then to construct and defend a particular theory about the proper grounds of law. But of course there is more to legal practice than arguments about law, and this book neglects much that legal theory also studies. 4.2. This book takes up the internal, participants point of view; it tries to grasp the argumentative character of our legal practice by joining that practice and struggling with the issues of soundness and truth participants face. 4.2.1. We will study formal legal argument from the judges viewpoint, not because only judges are important or because we understand everything about them by noticing what they say, but because judicial argument about claims of law is a useful paradigm for exploring the central, propositional aspect of legal practice. 5. The real world. 5.1. We need relief from the daunting abstraction of these introductory remarks. I shall try to show how the plain-fact thesis distorts legal practice, and I begin by describing some actual cases decided by judges in the USA and Britain. 5.2. Elmers case.

5.2.1. Elmer murdered his grandfather; Elmers crime was discovered; he was convicted and sentenced to a term of years in jail. Was he legally entitled to the inheritance his grandfathers last will provided? 5.2.2. The judges disagreed about the correct result in the case, but their disagreement- or so it seems from reading the opinions they wrote- was about what the law actually was, about what the will statute required when properly read. It was a problem of interpretation. 5.2.3. Interpretation with no context- literal interpretation (the statute contained no exception for murderers) x Interpretation according to the legislator intention- a statute does not have any consequence the legislators would have rejected if they had contemplated it + judges should construct a statute so as to make it conform as closely as possible to principles of justice assumed elsewhere in the law. 5.2.3.1. The second view prevailed. 5.2.4. The dispute about Elmer was not about whether judges should follow the law or adjust it in the interests of justice. It was a dispute about what the law was, about what the real statute the legislators enacted really said. 5.3. The Snail Darter Case. 5.3.1. In 1973, the USA Congress enacted the Endangered Species Act. It empowers the secretary of the interior to designate species that would be endangered, in his opinion, by the destruction of some habitat he considers crucial to its survival and then requires all agencies and departments of the government to take such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species.

5.3.2. That conservationists discovered that one almost finished TVA dam, costing over one hundred million dollars, would be likely to destroy the only habitat of the snail darter, a three inch fish of no particular beauty or biological interest or general ecological importance. They persuaded the secretary to designate the snail darter as endangered and brought proceedings to stop the dam from being completed and used. 5.3.3. () such action necessary to insure that actions authorized, funded, or carried out. Should it be taken only to refer to a project to begin and not to completing projects begun earlier? 5.4. McLoughlin. (Me que v os filhos e o marido internados no hospital em estado grave; ao v-los em tal situao, passa mal e, por esse mal estar, pede uma indenizao). 5.4.1. In many lawsuits, the plaintiff appeals not to any statute but to earlier decisions by courts. One argues that the judge in ones case should follow the rules laid down in these earlier cases, which one claims require a verdict. McLoughlin was of this sort. 5.4.2. Differences of opinion about the character of the strict doctrine and the force of the relaxed doctrine explain why some lawsuits are controversial. 5.4.2.1. Different judges in the same case disagree about whether they are obligated to follow some past decision on exactly the question of law they now face. That was not, however, the nerve of controversy in McLoughlin. 5.4.3. Whatever view lawyers take of the character and force of precedent, the doctrine applies only to past decisions sufficiently like the present case to be, as lawyers say, in point.

5.4.3.1. Sometimes one side argues that certain past decisions are very much in point, but other side replies that these decisions are distinguishable, meaning they are different from the doctrine. 5.5. Brown. (Caso da segregao de negros e brancos nas escolas). 5.5.1. This case, like our other sample cases, was fought over the question of law. Semantic Theories of Law. 6. Propositions and Grounds of Law. 6.1. Earlier in this chapter:

6.2.2. We follow shared rules, they say, in using any word: these rules set out criteria that supply the words meaning. Our rules for using law tie law to plain historical fact. 6.2.3. Philosophers who insist that lawyers all follow certain linguistic criteria for judging propositions of law, perhaps unawares, have produced theories identifying these criteria. I shall call these theories collectively semantic theories of law. 6.2.3.1. I mean to include use theories (the ones that describes the use of legal concepts) in the group of semantic theories of law, as well as the earlier theories that were more candidly definitional. 7. Legal Positivism.

6.1.1. I described what I called the plain-fact view of law. This holds that: (i) law depends only on matter of plain historical fact, (ii) that the only sensible disagreement about law is empirical disagreement about what legal institutions have actually decided in the past, (iii) that what I called theoretical disagreement is illusory and better understood as argument not about what law is but about what it should be. 6.1.2. The sample cases seem counterexamples to the plain-fact view: the arguments in these cases seem to be about law, not morality or fidelity or repair. 6.2. We must therefore put this challenge to the plain-fact view: why does it insist that appearance is here an illusion? 6.2.1. They say that theoretical disagreement about the grounds of law must be a pretense because the very meaning of the word law makes law depend on certain specific criteria, and that any lawyer who rejected or challenged those criteria would be speaking selfcontradictory nonsense.

7.1. The semantic theories that have been most influential hold that the shared criteria make the truth of propositions of law turn on certain specified historical events. 7.1.1. These positivists theories, as they are called, support the plainfact view of law, that genuine disagreement about what the law is must be empirical disagreement about the history of legal institutions. 7.1.2. Positivist theories differ from one another about which historical facts are crucial, however, and two versions have been particularly important in British jurisprudence: Austins (authority) and Harts (rule of recognition). 8. Other Semantic Theories. 8.1. School of natural law: they argue that lawyers follow criteria that are not entirely factual, but at least to some extent moral, for deciding which proposition of law can be true.

8.2. School of legal realism: If we treat them as semantic theories, they argue that the linguistic rules lawyers follow make propositions of law instrumental and predictive. The best version suggests that the exact meaning of a proposition of law- the conditions under which lawyers will take the proposition to be true- depends on context. 9. Defending Positivism. 9.1. For why should lawyers and judges pretend to theoretical disagreement in cases like the mentioned ones? 9.1.1. Some positivists have a quick answer: judges pretend to be disagreeing about what the law is because the public believes there is always law and that judges should always follow it. 9.1.1.2. This quick answer is unpersuasive. It is mysterious why the pretense should be necessary or how it could be successful. In fact there is no positive evidence of any kind that when lawyers and judges seem to be disagreeing about the law they are really keeping their fingers crossed. 9.1.2. There is, however, a more sophisticated defense of positivism. This new argument stresses the importance of distinguishing between standard or core uses of the word law and borderline or penumbral uses of that word. 9.1.2.1. So lawyers may use the word law differently in marginal cases when some but not all of the grounds specified in the main rule are satisfied. This explains, according to the present argument, why they disagree in hard cases like our sample cases. 9.1.2.2. The new story is in one way like the fingers-crossed story, however: it leaves wholly unexplained why the legal

profession should have acted for so long in the way the story claims it has. 9.1.2.3. So the new defense of positivism is a more radical critique of professional practice than it might at first seem. The crossed-fingers defense shows judges as well-meaning liars; the borderline-case defense shows them as simpletons instead. 9.1.2.4. Our sample cases were understood by those who argued about them as pivotal cases testing fundamental principles, not as borderline cases calling for some more or less arbitrary line to be drawn. 10. The real argument for semantic theories. 10.1. Unless lawyers and judges share factual criteria about the grounds of law there can be no significant thought or debate about what the law is. 10.1.1 We have no choice but to confront that argument. DFD- Seminrio 04- Laws Empire- Ronald Dworkin. Chapter II- Interpretative concepts. Obs.: In the end of chapter I, Dworkin claimed that unless lawyers and judges share factual criteria about the grounds of law there can be no significant thought or debate about what the law is. 1. The semantic sting. 1.1. Dworkin calls the semantic sting the argument described above They think we can argue sensibly with one another if, but only if, we all accept and follow the same criteria for deciding when our claims are sound, even if we cannot state exactly what these criteria are.

1.1.1. So legal philosophers try to identify the hidden ground rules that must be there, embedded, though unrecognized, in legal practice. They produce and debate semantic theories of law. 1.2. Unfortunately for these theories, this picture of what makes disagreement possible fits badly with the kinds of disagreements lawyers actually have. 1.2.1. Because much disagreement in law is theoretical rather than empirical. Legal philosophers who think there must be common rules try to explain away the theoretical rather than the empirical. 1.3. There is the sting: We are marked as its target by too crude a picture of what disagreement is or must be like. 2. An Imaginary example. 2.1. The Interpretative Attitude. 2.1.1. I shall argue that this picture of what makes disagreement possible is not exhaustive and, in particular, that it does not hold in an important set of circumstances that includes theoretical argument in law. 2.1.1.1. It does not hold when members of particular communities who share practices and traditions make and dispute claims about the best interpretation of these. These claims are often controversial, and the disagreement is genuine even though people use different criteria in forming or framing these interpretations. 2.1.2. The Rules of Courtesy example. 2.1.2.1. For a time the rules are just there and are neither questioned nor varied.

2.1.2.2. But then, everyone develops a complex interpretative attitude toward the rules of courtesy, an attitude that has two components: 2.1.2.2.1. The first is the assumption that the practice of courtesy does not simply exist but has a value, that it serves some interest or purpose or enforces some principle. 2.1.2.2.2. The second is the further assumption that the behavior it calls for or judgments it warrants are not necessarily or exclusively what they have always been taken to be but are instead sensitive to its point. 2.1.2.3. Once this takes hold, the institution of courtesy ceases to be mechanical People now try to impose meaning on the institution. 2.1.2.4. For the citizens interpretation decides not only why courtesy exists, but also what, properly understood, it now requires. Value and content have become entangled. 2.2. How Courtesy Changes. 2.2.1. Interpretation folds back into the practice, altering its shape, and the new shape encourages further reinterpretation, so the practice changes dramatically, though each step in the progress is interpretative of what the last achieved. 3. A First Look at Interpretation. 3.1. In this chapter I offer a theoretical account particularly designed to explain interpreting social practices and structures like courtesy, and I defend that account against some fundamental and apparently powerful objections.

3.2. Interpreting a social practice is only one form or occasion of interpretation. 3.2.1. The most familiar occasion of interpretation is conversation. 3.2.2. Scientific interpretation is yet another: we say that a scientist first collects data and then interprets them. 3.2.3. Artistic interpretation is yet another: critics interpret poems and plays and paintings in order to defend some view of their meaning or theme or point. 3.3. The form of interpretation we are studying- the interpretation of a social practice- is like artistic interpretation in this way: both aim to interpret something created by people as an entity distinct from them. 3.3.1. I shall capitalize on that similarity between artistic interpretation and the interpretation of social practice; I shall call them both forms of creative interpretation to distinguish them from conversational and scientific interpretation. 3.4. May we say that all forms of interpretation aim at purposive explanation in that way, and that this aim distinguishes interpretation, as a type of explanation, from causal explanation more generally. 3.4.1. Is creative interpretation only a metaphorical case of interpretation? 3.4.1.1. We cannot dissolve that metaphor, as we can in the scientific case, by explaining that we really have in mind an ordinary causal explanation, and that the metaphor of purpose and meaning is only decorative. 3.4.1.2. For the interpretation of social practices and works of art is essentially concerned with purposes rather than mere causes.

3.4.2. So we must find some way to replace the metaphor of practices and pictures speaking in their own voices that recognizes the fundamental place of purpose in creative interpretation. 3.5. Common solution: Creative interpretation is a type of conversational interpretation. 3.6. Dworkins solution: creative interpretation is not conversational but constructive. 3.6.1. Creative interpretation is indeed essentially concerned with purpose not cuase. 3.6.1.1. But the purposes in play are not (fundamentally) those of some author but of the interpreter. 3.6.2. Roughly, constructive interpretation is a matter of imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong. 3.6.2.1. It does not follow that an interpreter can make of a practice or work of art anything he would have wanted it to be. For the history or shape of a practice or object constrains the available interpretations of it. 3.6.3. Creative interpretation, on the constructive view, is a matter of interaction between purpose and object. 3.6.4. A participant interpreting a social practice, according to that view, proposes value for the practice by describing some scheme of interests or goals or principles the practice can be taken to serve or express or exemplify. 3.6.4.1. Very often, perhaps even typically, the raw behavioral data of the practice- what people do in that circumstances- will underdetermine the ascription of value:

those data will be consistent, that is, with different and competing ascriptions. 3.6.4.2. If the raw data do not discriminate between these competing interpretations, each interpreters choice must reflect his view of which interpretation proposes the most value for the practice. 3.7. The constructive account of creative interpretation could perhaps provide a more general account of interpretation in all its forms. 3.7.1. We would then say that all interpretation strives to make an object the best it can be, as an instance of some assumed enterprise, and that interpretation takes different forms in different contexts only because different enterprises engage different standards of value or success. 4. Interpretation and Authors Intention. 4.1. Some will object that creative interpretation is only conversational interpretation addressed to an author. 4.1.1. Interpreting means trying to understand something in a particular and special way. It means trying to discover the authors motives or intentions. 4.1.2. Interpretation tries to show the object of interpretation accurately, as it really is, not as you suggest through rose-colored glasses or in its best light. 4.1.2.1. That means retrieving the actual, historical intentions of its authors, not foisting the interpreters values on what those authors created. 4.2. I shall confront these arguments in stages.

4.2.1. I shall argue, first, that even if we take the goal of artistic interpretation to be retrieving the intention of an author, as the objection recommends, we cannot escape using the strategies of constructive interpretation the objection condemns. We cannot avoid trying to make of the artistic object the best, in our opinion, it can be. 4.2.2. If we do take the goal of artistic interpretation to be discovering an authors intention, this must be a consequence of having applied the methods of constructive interpretation to art, not of having rejected those methods. 4.2.3. I shall argue, finally, that the techniques of ordinary conversational interpretation, in which the interpreter aims to discover the intentions or meanings of another person, would in any event be inappropriate for the interpretation of a social practice like courtesy because it is essential to the structure of such a practice that interpreting the practice be treated as different from understanding what other participants mean by the statements they make in its operation. 4.2.3.1. It follows that a social scientist must participate in a social practice if he hopes to understand it, as distinguished from understanding its members. 5. Art and the nature of intention. 5.1. Is artistic interpretation inevitably a matter of discovering some authors intentions? Is discovering an authors intentions a factual process independent of the interpreters own values? 5.1.1. If someone wants to see interpretation in art as a matter of retrieving an authors intention, what must he understand by an intention?

5.1.2. Is there really so sharp a distinction as the objection supposes between discovering an artists intention and finding value in what he has done? 5.2. My present point is only that the authors-intention claim, when it becomes a method or a style of interpretation, itself engages an interpreters artistic convictions: these will often be crucial in establishing what, for the interpreter, the developed artistic intention really is. 5.3. For even if we reject the thesis that creative interpretation aims to discover some actual historical intention, the concept of intention nevertheless provides the formal structure for all interpretative claims. 5.3.1. I mean that an interpretation is by nature the report of a purpose. This structure is required of an interpretation even when there is no historical author whose historical mind can be plumbed. 5.4. What could be the point of insisting on the formal structure of purpose, in the way we explain texts or legal institutions, beyond the goal of retrieving some actual historical intention? 5.5. Intention and the Value of Art I suggest, then, that the academic argument about authors intention should be seen as a particularly abstract and theoretical argument about where value lies in art. 5.5.1 I mean only to suggest how the argument over intention in interpretation, located within the larger social practice of contesting the mode of arts value, itself assumes the more abstract goal of constructive interpretation, aiming to make the best of what is interpreted. 6. Intentions and practices. 6.1. We must now consider the objection as it applies specifically to the other form of creative interpretation, the interpretation of social practices and structures.

6.2. Arguments. 6.3. We began this long discussion provoked by an important objection: that the constructive account of creative interpretation is wrong because creative interpretation is always conversational interpretation 6.3.1. That objection fails for the interpretation of social practices even more dramatically than it fails for artistic interpretation. 7. Stages of interpretation. 7.1. We must begin to refine constructive interpretation into an instrument fit for the study of law as a social practice. 7.2. Three stages of an interpretation: 7.2.1. First, there must be a preinterpretive stage in which the rules and standards taken to provide the tentative content of the practice are identified. 7.2.2. Second, there must be an interpretive stage at which the interpreter settles on some general justification for the main elements of the practice identified at the preinterpretive stage. This will consist of an argument why a practice of that general shape is worth pursuing, if it is. 7.2.3. Finally, there must be a postinterpretive or reforming stage, at which he adjusts his sense of what the practice really requires so as better to serve the justification he accepts at the interpretive stage. 7.3. Kinds of convictions or belief or assumptions someone needs to interpret something: 7.3.1. He needs assumptions or convictions about what counts as part of the practice in order to define the raw data of his interpretation at the preinterpretive stage. The interpretive

attitude cannot survive unless members of the same interpretive community share at least roughly the same assumptions about this. 7.3.2. He also needs convictions about how far the justification he proposes at the interpretive stage must fit the standing features of the practice to count as an interpretation of it rather than the invention of something new. 7.3.3. Finally, he will need more substantive convictions about which kinds of justification really would show the practice in the best light. These substantive convictions must be independent of the convictions about fit just described, otherwise the latter could not constrain the former, and he could not, after all, distinguish interpretation from invention. 8. Philosophers of Courtesy. 8.1. Institutional Identity. 8.1.1. In Chapter I we reviewed classical theories or philosophies of law, and I argued that, read in the way they usually are, these theories are unhelpful because paralyzed by the semantic sting. 8.1.2. Now we can ask what kind of philosophical theories would be helpful to people who take the interpretive attitude I have been describing toward some social tradition. 8.2. Concept and conception. 8.2.1. It is not unlikely that the ordinary debates about courtesy in the imaginary community will have the following treelike structure: 8.2.1.1. People by and large agree about the most general and abstract propositions about courtesy, which form the trunk of the tree;

8.2.1.2. But they disagree about the branches of the tree. 8.2.2. In these circumstances the initial trunk would act, in public argument as well as private rumination, as a kind of plateau on which further thought and argument are built. 8.2.3. Our philosopher will serve the community if he can display this structure and isolate this conceptual connection between courtesy and respect (considering that the people of the community regard that respect is part of the very meaning of respect). 8.2.3.1. He can capture it in the proposition that, for this community, respect provides the concept of courtesy and that competing positions about what respect really requires are conceptions of that concept. 8.3. The contrast between concept and conception is here a contrast between levels of abstraction at which the interpretation of the practice can be studied. 8.3.1. At the first level agreement collects around discrete ideas that are uncontroversially employed in all interpretations; 8.3.2. At the second the controversy latent in this abstraction is identified and taken up. 8.3.3. Exposing this structure may help to sharpen argument and will in any case improve the communitys understanding of its intellectual environment. 8.4. Our philosopher has succeeded, we are supposing, in imposing a certain structure on his communitys practice such that particular substantive theories can be identified and understood as subinterpretations of a more abstract idea.

8.4.1. His claim is interpretive not semantic; it is not a claim about linguistic ground rules everyone must follow to make sense. Nor is his claim timeless: it holds in virtue of a pattern of agreement and disagreement that might disappear tomorrow. And his claim can be challenged at any time. 9. Paradigms. 9.1. At each historical stage of the development of the institution, certain concrete requirements of courtesy will strike almost everyone as paradigms, that is, as requirements of courtesy if anything is. 9.1.1. The role these paradigms play in reasoning and argument will be even more crucial than any abstract agreement over a concept. For the paradigms will be treated as concrete examples any plausible interpretation must fit, and argument against an interpretation will take the form, whenever this is possible, of showing that it fails to include or account for a paradigm case. 9.2. The connection between the institution and the paradigms of the day will be so intimate, in virtue of this special role, as to provide another kind of conceptual flavor. 9.2.1. Paradigm anchor interpretations, but no paradigm is secure from challenge by a new interpretation that accounts for other paradigms better and leaves that one isolated as a mistake. 10. A Digression: Justice. 10.1. The crude picture of how language works, the picture that makes us vulnerable to the semantic sting, fails for justice as it does for courtesy. 10.1.1. We do not follow shared linguistic criteria for deciding what facts make a situation just or unjust. Our most intense disputes about justice are about the right tests for justice, not about whether the facts satisfy some agreed test in some particular case.

10.2. Justice is an institution we interpret. Like courtesy, is has a history. 10.2.1. Political philosophers cannot develop semantic theories that provide rules for justice like the rules we contemplated for book. They can, however, try to capture the plateau from which arguments about justice largely proceed, and try to describe this in some abstract proposition taken to define the concept of justice for their community, so that arguments over justice can be understood as arguments about the best conception of that concept. 10.2.2. In any case, we share a preinterpretive sense of the rough boundaries of the practice on which our imagination must be trained. 10.3. Philosophers of justice can also do useful work in identifying the paradigms that play the role in arguments about justice that I said paradigms would play in arguments about courtesy. 11. Skepticism about interpretation. 11.1. A challenge. 11.1.1. Can one interpretive view be objectively better than another when they are not merely different, bringing out different and complementary aspects of a complex work, but contradictory, when the content of one includes the claim that the other is wrong? 11.1.1.1. Most people think they can. 11.1.1.2. Some literary critics, however, believe this is all deep confusion; they say it is a mistake to think one interpretive opinion can really be better than another. 11.1.2. Much of what I have said about interpretation throughout this chapter might be thought to support this skeptical critique of the ordinary, right-wrong/true-false view.

11.1.2.1. I offered this general and very abstract characterization of interpretation: it aims to make the object or practice being interpreted the best it can be. 11.2. Internal and External Skepticism. 11.2.1. There is a crucial distinction between skepticism within the enterprise of interpretation, as a substantive position about the best interpretation of some practice of work of art, and skepticism outside and about that enterprise. 11.2.1.1. The internal skeptic addresses the substance of the claims he challenges; he insists it is in every way a mistake to say that Hamlet is about delay and ambiguity, a mistake to suppose it is a better play read that way. 11.2.1.2. External skepticism is a metaphysical theory, not an interpretive or moral position. The external skeptic does not challenge any particular moral or interpretive claim. He insists that the claims are not descriptions that can be proved or tested like physics. He insists that all these opinions are projected upon, not discovered in, reality. 11.2.2. Difference between slavery is wrong and slavery is really/objectively wrong (objective comments). 11.2.2.1. We use the language of objectivity, not to give our ordinary moral or interpretive claims a bizarre metaphysical base, but to repeat them, perhaps in a more precise way, to emphasize or qualify their content. 11.2.3. External skepticism cannot threaten any interpretive project. Even if we think we understand and accept that form of skepticism, it can provide no reason why we should not also think that slavery is wrong, that Hamlet is about ambiguity and that courtesy ignores

rank, or, what comes to the same thing, that each of these positions is better (or is really better) than its rivals. 11.3. Which form of Skepticism? 11.4. Conclusions and Agenda. 11.4.1. Skeptics declare deep error in the interpretive attitude I described it; they say it is a mistake to suppose that one interpretation of a social practice, or of anything else, can be right or wrong or really better than another. 11.4.2. I shall offer arguments about what makes one interpretation of a social practice better than another, and about what account of law provides the most satisfactory interpretation of that complex crucial practice. DFD- Seminrio 05-17/04: Laws Empire- Chapter III- Jurisprudence revisited- Ronald Dworkin. 1. A new picture. 1.1. Law is an interpretive concept like courtesy in my imaginary example. 1.1.1. Judges develop, in response to their own convictions and instincts, working theories about the best interpretation of their responsibilities under that practice. When they disagree in what I called the theoretical way, their disagreement is interpretive. 1.1.1.1. They disagree, in large measure or fine detail, about the soundest interpretation of some pertinent aspect of judicial practice. 1.2. Each judges interpretive theories are grounded in his own convictions about the point- the justifying purpose or goal or

principle- of legal practice as a whole, and these convictions will inevitably be different, at least in detail, from those of other judges. 1.2.1. Nevertheless, a variety of forces tempers these differences and conspires toward convergence. 1.2.1.1. Every community has paradigms of law, propositions that in practice cannot be challenged without suggesting either corruption or ignorance. This fact discourages radical interpretations. 1.2.1.2. The most powerful influences toward convergence, however, are internal to the character of interpretation. 1.2.1.2.1. The practice of precedent, which no judges interpretation can wholly ignore, presses toward agreement. 1.2.1.2.2. Judges think about law, moreover, within society, not apart from it; the general intellectual environment, as well as the common language that reflects and protects that environment, exercises practical constraints on idiosyncrasy and conceptual constraints on imagination. 1.3. It would be a mistake to ignore these various unifying and socializing factors, but a more insidious and dangerous mistake to exaggerate their power. 1.3.1. Different judges belong to different and rival political traditions, and the cutting edge of different judges interpretations will be honed/sharpened by different ideologies.
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1.3.2. Nor is this to be deplored. On the contrary, law gains in power when it is sensitive to the frictions and stresses of its intellectual forces. 1.3.2.1. Law would funder (would be unsuccessful) if the various interpretive theories in play in court and classroom diverged too much in any one generation. 1.3.2.2. But law would stagnate, and so founder in a different way, if it collapsed into the runic traditionalism I imagined as the final state of courtesy. 1.4. We may take a longer view of our legal culture, noticing how it develops and how its general character changes over time. 1.4.1. Certain interpretive solution, including the nature and force of legislation and precedent, are very popular for a time, and their popularity, aided by intellectual inertia, encourages judges to take them as settled for all practical purposes. 1.4.1.1. They are the paradigms or the quasi-paradigms of their day; but at the same time other issues, perhaps equally fundamental, are matters of debate and controversy. 1.4.1.2. Suddenly, what seemed unchallengeable is challenged. Paradigms are broken, and new paradigms emerge. 1.5. The old plain fact1 view picture of Chapter I told us not to take the opinions judges write in hard cases at face value2; the new picture

They say theoretical disagreement is an illusion, that lawyers and judges all actually agree about the grounds of law I shall call this the plain fact view of the grounds of law.

has the signal of allowing us once again to believe what our judges say. 2. Concepts and Conceptions of Law. 2.1. Legal philosophers cannot produce useful semantic theories of law. 2.1.1. General theories of law, like general theories of courtesy, must be abstract because they aim to interpret the main point and structure of legal practice, not some particular part or department of it. 2.1.1.1. But for all their abstraction, they are constructive interpretations: they try to show legal practice as a whole in its best light, to achieve equilibrium between legal practice as they find it and the best justification of that practice. 2.1.2. So no firm line divides jurisprudence from adjudication or any other aspect of legal practice. 2.1.2.1. Any practical legal argument, no matter how detailed and limited, assumes the kind of abstract foundation jurisprudence offers, and when rival foundations compete, a legal argument assumes one and rejects others. 2.1.2.2. Jurisprudence is the general part of adjudication, silent prologue to any decision at law. 2.3. Law cannot flourish (develop successfully) as an interpretive enterprise in any community unless there is enough initial agreement about what practices are legal practices so that lawyers argue about the best interpretation of roughly the same data.
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2.3.1. We all enter the history of an interpretive practice at a particular point; the necessary preinterpretive agreement is in that way contingent and local. 2.4. In fact, we have no difficulty identifying collectively the practices that count as legal practices in our own culture (legislatures, courts, administrative agencies, constitution, etc.). 2.4.1. It would be a mistake to think that we identify these institutions through some shared and intellectually satisfying definition of what a legal system necessarily is and what institutions necessarily make it up. 2.4.1.1. Our culture presents us with legal institutions and with the idea that they form a system. 2.4.1.2. The question which features they have, in virtue of which they combine as a distinctly legal system, is part of the interpretive problem. It is part of the controversial and uncertain process of assigning meaning to what we find, not a given of the preinterpretive structure. 2.5. We also have legal paradigms, proposition of law that we take to be true if any are. 2.5.1. These paradigms give shape and profit to interpretive debates about law. 2.5.1.1. They make possible a standard form of argument: seeking to test or embarrass an interpretation by confronting it with a paradigm it cannot explain. 2.5.2. But paradigms are no more true by definition in law than they are in courtesy or justice.

take sth at face value: to accept something for what it appears to be rather than studying it more closely.

2.5.2.1. Someone who denies that the traffic code is law does not contradict himself, nor does he speak thoughts no one can understand. 2.5.2.1.1. We do not need to add the more dramatic but mistaken charge encouraged by the semantic sting: that his error is verbal or conceptual. 2.5.2.1.2. We will think him very wrong, but wrong in some different way from other claims we reject but think less preposterous (absurd). 2.6. A legal philosopher, then, begins his work enjoying a fairly uncontroversial preinterpretive identification of the domain of law, and with tentative paradigms to support his argument and embarrass competitors in the familiar way. 2.6.1. Now the question arises whether he and his competitors might also agree on what I called, in discussing courtesy and justice, a statement of the central concept of their institution that will allow them to see their arguments as having a certain structure, as arguments over rival conceptions of that concept. 2.6.1.1. We might understand law better if we could find a similar abstract description of the point of law most legal theorists accept so that their arguments take place on the plateau it furnishes. 2.7. Neither jurisprudence nor my own arguments later in this book depend on finding an abstract description of that sort. 2.7.1. Nevertheless I suggest the following as an abstract account that organizes further argument about laws character.

2.7.1.1. Governments use the collective force they have to achieve their ends/goals. 2.7.1.2. The most abstract and fundamental point of legal practice is to guide and constrain the power of government in the following way. Law insists that force not be used or withheld, no matter how useful that would be to ends in view, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified. (Law and the justification of coercion). 2.7.1.3. The law of a community on this account is the scheme of rights and responsibilities that meet that complex standard: they license coercion because they flow from past decisions of the right sort. They are therefore legal rights and responsibilities. 2.8. Conceptions of law refine the initial, uncontroversial interpretation I just suggested provides our concept of law. Each conception furnishes connected answers to three questions posed by the concept. 2.8.1. Is the supposed link between law and coercion justified at all? Is there any point to requiring public force to be used only in ways conforming to rights and responsibilities that flows from past political decisions? 2.8.2. If there is such a point, what is it? 2.8.3. What reading of flow from- what notion of consistency with past decisions- best serves it?

2.9. In the next several chapters we shall study three rival conceptions of law, three abstract interpretation of our legal practice that I have deliberately constructed on this model as answers to this set of questions. 2.9.1. I shall all these three conceptions conventionalism, legal pragmatism, and law as integrity. 2.9.1.1. I shall argue that the first of these, though it seem initially to reflect the ordinary citizens understanding of law, is the weakest; that the second is more powerful and can be defeated only when our theater of argument expands to include political philosophy; and the third is, all things considered, the best interpretation of what lawyers, law teachers, and judges actually do and much of what they say. 2.9.1.2. Conventionalism gives an affirmative answer to the first question posed by our conceptual description of law. 2.9.1.2.1.It argues, in answer to the second question, that the point of laws constraint, our reason for requiring that force be used only in ways consistent with past political decisions, is exhausted by the predictability and procedural fairness this constraint supplies. 2.9.1.2.2. It proposes, in answer to the third question, a sharply restricted account of the form of consistency we should require with past decisions: a right or responsibility flows from past decisions only if it is explicit within them or can be made explicit through methods or techniques conventionally accepted by the legal profession as a whole.
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2.9.1.3. Legal pragmatism is, from the point of view of my conceptual suggestion, a skeptical conception of law. 2.9.1.3.1. It answers the first question I listed in the negative: it denies that a community secures any genuine benefit by requiring that judges adjudicative decisions be checked by any supposed right of litigants to consistency with other political decisions made in the past. 2.9.1.3.2. So, pragmatists, strictly speaking, reject the idea of law and legal right deployed in my account of the concept of law, though as we shall see, they insist that reasons of strategy require judges sometimes to act as if people have some legal rights. 2.9.1.4. Law as integrity accepts law and legal rights wholeheartedly3. 2.9.1.4.1. It answers the second question, however, in a very different way. It supposes that laws constraints benefit society not just by providing predictability or procedural fairness, or in some other instrumental way, but by securing a kind of equality among citizens that makes their community more genuine and improves its moral justification for exercising the political power it does. 2.9.1.4.2. Integritys response to the third question: it argues that rights and responsibilities flow from past decisions and so count as legal, not just when they follow from the principles of personal and political
In a completely enthusiastic way.

morality the explicit decisions presuppose by way of justification. 3. Law and Morals. 3.1. We might now notice how the given suggestion helps us to reformulate some classical jurisprudential puzzles in a more illuminating way, to reveal substantive issues that the classical texts often obscure. 3.1.1. If our community does indeed accept the abstract conceptual idea that legal rights are those flowing from past political decisions according to the best interpretation of what that means, then this helps to explain the complex relation between law and other social phenomena. 3.2. How is a communitys law different from its popular morality or traditional values? How it is different from what true justice requires of any state, no matter what its popular convictions and traditions? 3.2.1. It is different from each other because its content may depend on the other. 3.2.1.1. The communitys law belongs to the community not just passively, because its members hold certain views about what is right or wrong, but as a matter of active commitment, because its officials have taken decisions that commit the community to the rights and duties that make up law. 3.2.1.2. But a particular conception of law may nevertheless make the question of what rights and duties do follow from past political decisions depend in some way on popular morality as well as on the explicit content of those decisions. Or it may deny that there is such a connection.

3.2.1.3. The concept of law, understood as I have suggested, is itself neutral between- because more abstract than- these competing explanations of the connection between a communitys reigning opinions and its legal commitments. 3.2.2. Law is also different from justice. 3.2.2.1. Justice is a matter of the correct or best theory of moral and political rights, and anyones conception of justice is his theory, imposed by his own personal convictions, of what these rights actually are. 3.2.2.2. Law is a matter of which supposed rights supply a justification for using or withholding the collective force of the state because they are included in or implied by actual political decisions of the past. 3.2.2.3. Once again, however, this statement of the difference is neutral among different theories about the role a persons convictions should play in forming his convictions about law. 3.3. So the assumption that the most general point of law is to establish a justifying connection between past political decisions and present coercion show the old debate about law and morals in a new light. 3.3.1. In fact the old debate makes sense only if it is understood as a contest between different political theories, a contest about how far that assumed point of law requires or permits citizens and officials views about justice to figure in their opinions about what legal rights have been created by past political decisions.

3.3.1.1. The argument is not conceptual in our sense at all, but part of the interpretive debate among rival conceptions of law. 4. Anatomy of a Conception. 4.1. The assumed connection between law and coercion is also a useful guide to the likely structure or anatomy of nonskeptical conceptions of law like conventionalism and law as integrity. 4.1.1. Each such conception will deploy, as its organizing idea, some account of how the legal practices (legislation, precedent, v.g.) that define past political decisions contribute to the justification of collective coercive force. 4.1.2. No conception need justify every feature of the political practices it offers to interpret: like any interpretation, it can condemn some of its data as a mistake, as inconsistent with the justification it offers for the rest, and perhaps propose that this mistake be abandoned in what I called, in Chapter II, its postinterpretive stage. 4.1.2.1. Conceptions of law will be controversial just because they will differ in their postinterpretive accounts of legal practice, in their opinions, that is, about the right way to expand or extend the practice in areas presently disputed or uncultivated. 4.1.2.2. These controversial postinterpretive claims are the cutting edge of a conception of law, and that is why hard cases like our sample cases provide the best theater for displaying their power. 4.2. There is a long list of issues a satisfactory foundational interpretation of our own legal practice would consider.

4.2.1. Each question raises hosts of others, and an interpretation of this kind is necessarily open-ended and incomplete. 4.2.2. It must also be internally complex and cross-referenced; the questions must be answered together, in one complex though incomplete theory, if the answers are to stand coherent or even make any sense at all. 4.2.3. So any general conception must also have external connections to other parts or departments of political morality and, through these, to more general ideological and even metaphysical convictions. 4.2.4. This conception of law, as far as the lawyer or the philosopher has developed it, will reveal some attitude toward these large topics whether or not he realizes this. 5. Skeptical Conceptions and Wicked (morally wrong and bad) Law. I- Did the Nazis Have Law? 5.1. A discriminating claim some legal philosophers have made: that in some nations or circumstances there is no law, in spite of the existence of familiar legal institutions like legislatures and courts, because the practices of these institutions are too wicked to deserve that title. 5.1.1. We have little trouble making sense of that claim once we understand that theories of law are interpretive. 5.1.2. In the heyday of semantic theories, legal philosophers were more troubled by the suggestion that wicked places really had no law.

5.1.2.1. It was a common argument against strong natural law theories, which claim that a scheme of political organization must satisfy certain minimal standards of justice in order to count as a legal system at all, that our linguistic practice does not deny the title of law to obviously immoral political system. The existence of law is independent of the value of that law. 5.2. So once the semantic sting is drawn, we need not worry so much about the right answer to the question whether immoral legal systems really count as law. Or rather we should worry about this in a different, more substantive way. 5.2.1. We need not deny that the Nazi system was an example of law, no matter which interpretation we favor our own law, because there is an available sense in which it plainly was law. 5.2.2. But we also have no difficulty in understanding someone who does say that Nazi law was not really law, or was law in a degenerate sense, or was less than fully law. 5.2.2.1. For he is not then using law in that sense; he is not making that sort of preinterpretive judgment but a skeptical interpretive judgment that Nazi law lacked features crucial to flourishing legal systems whose rules and procedures do justify coercion. 5.2.2.2. We do not understand him fully, of course, unless we know which conception of flourishing legal systems he favors. 5.2.2.2.1. But we know the direction in which he will argue if he continues.

II- The Flexibility of Legal Language. 5.3. Semantic theories like positivism crimp our language by denying us the opportunity to use law in this flexible way, depending on context or point. 5.3.1. They insist that we must choose, once and for all, between a wide or preinterpretive and a narrow or interpretive sense. 5.3.2. But this buys linguistic tidiness at much too high a price. 5.3.3. Context sensitivity is more important when the question in play is sharper, more specialized, more practical than simply one of general classification or critique of a foreign and very different legal system. 5.3.3.1. Judge Siegfrieds example. 5.4. Semantic theories of law take the various questions we have distinguished, all of which concern wicked or otherwise defective instances of what is law in the preinterpretive sense, to be the same question: the semantic question whether the linguistic rules we share for applying law include or exclude such legal systems. 5.4.1. That is a fake question because we do not share any rules of the kind it assumes. 5.4.2. It is also a dangerous question because it diverts us from the issues of political morality, about the role and power of imperfect law and of officials who have undertaken a duty to enforce it, which are our main interest. 5.4.3. It disarms us by withdrawing the subtle and context-sensitive distinctions the rich language of law provides.

5.4.4. The question of wicked legal systems is not a conceptual question at all in the sense we have developed as appropriate for interpretive enterprises. 5.4.4.1. It is not one but many questions, and they all arise, for legal theory, at the level where conceptions compete. 6. Grounds and Force of Law. 6.1. I am defending this suggestion about how we might describe our concept of law: for us, legal argument takes place on a plateau of rough consensus that if law exists it provides a justification for the use of collective power against individual citizens or groups. 6.2. I must now consider an apparently powerful objection. 6.2.1. Our lawyers and citizens recognize a difference between the question what the law is and the question whether judges or any other official or citizen should enforce or obey the law 6.2.2. If we reject the semantic theories because we treat jurisprudence as interpretation rather than linguistic analysis, we must offer an alternative explanation of this distinction, and my description of the concept of law, which ties law so closely to politics, might seem a poor start. 6.3. This objection calls for an important clarification. 6.3.1. Our concept of law is furnished, on my suggestion, by rough agreement across the field of further controversy that law provides a justification in principle for official coercion. 6.3.1.1. It supposes only that in a flourishing legal system the fact of law provides a case for coercion that must stand unless some exceptional counterargument is available.

6.3.2. Our present concept of law leaves the connection between law and coercion at that abstract level. 6.3.2.1. However, any full theory of law, must be much more concrete. It must say much more about the kind of exceptional circumstance that might defeat laws case for coercion even in a flourishing system, more about then, if ever, official may properly ignore the law, and more about what residuary obligations, if any, arise when they do. 6.3.3. A full political theory of law, then, includes at least two main parts: (i) it speaks both to the grounds of law- circumstances in which particular propositions of law should be taken to be sound or true- (ii) and to the force of law- the relative power of any true proposition of law to justify coercion in different sorts of exceptional circumstance. 6.3.3.1. The attitude a full theory takes up on the question how far law is commanding, and when it may or should be set aside, must match the general justification it offers for laws coercive mandate, which in turn is drawn from its views about the controversial grounds of law. 6.3.4. But this complexity poses a serious practical problem: We find it very difficult to achieve the distance from our own convictions necessary to examine these systematically as a whole. 6.3.4.1. We must hold constant certain parts of our attitudes and convictions about law, as not under present study, in order to evaluate and refine the rest. 6.3.4.2. We use the distinction between grounds and force to that end.

6.3.5. We disagree about the exact force law has in certain special circumstances, when there are strong competing considerations of justice. 6.3.5.1. But we share a general, unspecific opinion about the force of law when such special considerations of justice are not present, when people disagree about the justice or wisdom of legislation, for example, but no one really thinks the law wicked or its authors tyrants. 6.3.5.2. We think the law should be obeyed and enforced. So we can isolate and concentrate on the grounds of law by assuming cases that are normal in that way. 6.3.6. We can ask: given the (roughly agreed) force of law in normal circumstances, how, exactly, should it be decided when some rule or principle is part of our law? 6.3.6.1. The conceptions of law we shall study are answers to that question. 6.3.7. Conceptions of law, which are theories about the grounds of law, commit us to no particular or concrete claims about how citizens should behave or judges should decide cases. 6.3.7.1. We say the law is one thing and what judges should do about it quite another; this accounts the immediate appeal of the positivists slogan. 6.7.3.2. But it wildly overstates this point to insist, like the positivists did, that theories about the grounds of law cannot be political at all, that they must leave entirely open the question how judges should decide actual cases.

6.3.7.3. A theory about grounds does not declare what a judge should do in any particular case; but unless it is a deeply skeptical conception it must be understood as saying what judges should do in principle, unless circumstances are special in the way just noticed. 6.3.7.3.1. Otherwise we could not treat the theory as an interpretation of law, as a conception of our concept. 6.4. It is worth noticing, finally, how this process of abstraction, which permits legal philosophers to debate about the grounds of law, abstracting from its force, also permits political philosophers to argue in other direction, about the force of law even though they differ among themselves to some degree about its grounds. Laws Empire- Chapter Four- Conventionalism. 1. Its Structure. 1.1. The law is the law. Judges job is to apply it, not to change it to fir their own ethics or politics. 1.1.1. The slogan means something more than banality. It is this: that collective force should be trained against individuals only when some past political decision has licensed this explicitly in such a way that competent lawyers and judges will all agree about what decision was, no matter how much they disagree about morality and politics. 1.2. The first of the three conceptions of law I introduced in the last chapter, which I called conventionalism, shares the general ambition of the popular slogan, though the interpretation it builds is more subtle in two ways.

1.2.1. First, conventionalism explains how the content of past political decisions can be made explicit and noncontestable. 1.2.1.1. It makes law depend on distinct social conventions it designates as legal conventions about which institutions should have power to make law and how. 1.2.1.2. Every complex community, conventionalism insists, has such conventions. 1.2.1.3.Conventionalism holds that legal practice, properly understood, is a matter of respecting and enforcing these conventions, of treating their upshot, and nothing else, as law. 1.2.2. Second, conventionalism corrects the popular laymans view that there is always law to enforce. 1.2.2.1. Law by convention is never complete, because new issues constantly arise that have not been settled one way or the other by whatever institutions have conventional authority to decide them. 1.2.2.2. So the decision a judge must make in hard cases is discretionary in this strong sense: it is left open by the correct understanding of past decisions. 1.2.2.2.1. A judge must find some other kind of justification beyond laws warrant, beyond any requirement of consistency with decisions made in the past, to support what he then does. 1.2.2.2.2. Of course convention may convert novel decisions into legal rights for the future. In this way the system of rules sanctioned by convention grows steadily (constantemente) in our legal practice.

1.3. There is this important difference between positivists semantic theories and conventionalism. 1.3.1. The semantic theories argue that the description just given is realized and enforced by the very vocabulary of law, so that it would be a kind of self-contradiction for someone to claim that the law provides rights beyond those established through mechanisms sanctioned by convention. 1.3.2. The conventionalist conception of law, on the contrary, is interpretive. It argues that this way of describing legal practice shows that practice in its best light and therefore offers the most illuminating account of what lawyers and judges do. 1.3.2.1. Conventionalism does not deny that many lawyers hold rival views about the best interpretation of the practice they share. 1.4. Conventionalism makes two postinterpretive, directive claims. 1.4.1. The first is positive: that judges must respect the established legal conventions of their community even acts of Parliament they consider unfair or unwise except in rare circumstances. 1.4.2. The second claim, which is at least equally important, is negative: it declares that there is no law- no right flowing from past political decisions- apart from the law drawn from those decisions by techniques that are themselves matter of convention, and therefore that on some issues there is no law either way. 1.4.2.1. It does not follow that judges faced with such an issue must throw up their hands and send the parties from court with no decision at all.

1.4.2.2. This is the sort of case in which judges must exercise the discretionary power to use extralegal standards to make what conventionalism declares to be new law. 2. Its Appeal. 2.1. The heart of any positive conception of law, like conventionalism or law as integrity, is its answer to the question why past politics is decisive of present rights. 2.1.1. Conventionalism provides one apparently attractive answer to that question. 2.1.1.1. Past political decisions justify coercion because, and therefore only when, they give fair warning by making the occasions of coercion depend on plain facts available to all rather than on fresh judgments of political morality, which different judges might take differently. This is the ideal of protected expectations. 2.1.2. The first of the two postinterpretive claims of conventionalism plainly serves that ideal. 2.2. It is not so obvious that the second, negative claim of conventionalism also serves the ideal of protected expectations. But a reasonable case can be made that it does. 2.2.1. The negative claim insists that a judge may not appeal to the laws warrant for his decision when he cannot show that conventions force him to do what he does, because the ideal is corrupted by any suggestions that past political decisions can yield rights and duties other than those dictated by convention. 2.2.2. Once its accepted that principles can be part of the law for reasons not reflecting convention but just because they are morally appealing, then a door is opened for the more threatening idea that

some principles are part of the law because of their moral appeal, even though they contradict what convention has endorsed. 2.3. Conventionalism protects the authority of convention by insisting that conventional practices establish the end as well as the beginning of the pasts power over the present. 2.3.1. It insists that the past yields no rights tenable (defensveis) in court, except these are made uncontroversial by what everyone knows and expects. 2.3.2. If convention is silent there is no law, and the force of that negative claim is exactly that judges should not then pretend their decisions flow in some other way from what has already been decided. 2.3.3. We should protect convention in that way, according to conventionalism, even if we think judges should sometimes, in dramatic circumstances, flout convention. 2.4. Conventionalisms negative claim might also be thought to serve the popular ideal in a different way, though this depends on adding a set of claims about how judges should decide hard cases when convention has run out. 2.4.1. Once it is made clear that that the judge makes new law in these circumstances, then is seems plausible that he should choose the rule he believes the actual legislature then in power would choose, or, failing that, the rule he believes best represents the will of the people as a whole. 2.4.1.1. This is as close to serving the ideal of protecting expectations as the judge can come. 3. Legal conventions.

3.1. I begin with the more immediate question whether we have the conventions conventionalism needs. 3.1.1. Conventionalism does not claim that all lawyers and judges are already conventionalists. 3.1.2. Nevertheless it insists that legal practice as a whole can be seen as organized around important legal conventions, and this claim requires showing that the behavior of the judges generally, even those who are not conventionalists, converges sufficiently to allow us to find convention in that convergence. 3.2. At first sight this project looks promising. 3.2.1. The crucial interpretive assumption of conventionalism, that our legal practice can sensibly be seen as structured by central and pervasive legal conventions about legislation and precedent, seems to be reflected in ordinary experience. 3.3. Now take a closer look. According to conventionalism, a judge is obliged, by the best interpretation of the practice to which he belongs, to enforce whatever conventions declare to be law in particular cases, whether he approves it or not. 3.3.1. But in order to do this he must decide in each case what these conventions declare the law to be; in order to do this he must decide what the content of each convention really is. 3.3.2. But we have noticed that judges and lawyers very often disagree about the correct answers to questions like these. 3.3.2.1. They have different theories about how statutes and past decisions should be read. 3.3.2.2. Judicial disagreement of this kind presents an immediate and obvious problem for conventionalism.

3.3.2.3. It shows that something more must be said about what a convention is, about how much and what kind of agreement is necessary in order that a particular proposition of law can be true in virtue of a particular legal convention. 3.4. So the distinguishing claim of conventionalism, that law is limited to what has been endorsed by legal conventions, might seem ambiguous. 3.4.1. We define the extension of an abstract convention, like courtesy or legislation or precedent, as the set of judgments or decisions that people who are parties to the convention are thereby committed to accept. 3.4.1.1. The explicit extension is the set of propositions which (almost) everyone said to be a party to the convention actually accepts as part of its extension. 3.4.1.2. The implicit extension is the set of propositions that follow from the best or soundest interpretation of the convention, whether or not these form part of the explicit extension. 3.4.2. Suppose there is a convention in some legal community that judges must give both sides an equal opportunity to state their case. 3.4.2.1. Everyone agrees that this means both sides must be heard, but it is disputed whether it also means that both sides must have equal time even though the arguments of one side are more complex or require more witnesses than the other. 3.4.2.2. Everyone one thinks the implicit extension includes one or other of the latter propositions, but they disagree which, because they disagree which solution best interprets the abstract goal- on which they agree- of equality of opportunity in court.

4. Two Kinds of Conventionalism. 4.1. Now we can distinguish what might seem to be two forms or versions of conventionalism. 4.1.1. The first, which we might call strict conventionalism, restricts the law of a community to the explicit extension of its legal conventions like legislation and precedent. 4.1.2. The second, call it soft conventionalism, insists that the law of a community includes everything within the implicit extension of these conventions. 4.2. It makes a great difference which of these two forms of conventionalism we are to consider. 4.2.1. Strict conventionalism would be a very restrictive conception of law for us because the explicit extensions of our putative conventions of legislation and precedent contain very little that has much practical importance in actual litigation. 4.2.1.1. If conventionalism is strict conventionalism, then, its positive claims offers no help to judges faced with problematical lawsuits. 4.2.1.2. For strict conventionalism gives only the negative advice that judges must not pretend to be deciding such cases on legal grounds. 4.3. This explains the attraction soft conventionalism has had for a recent generation of legal philosophers. 4.3.1. The positive part of soft conventionalism instructs judges to decide according to their own interpretation of the concrete requirements of legislation and precedent, even though this may be controversial, and this advice is not irrelevant in hard cases.

4.3.2. It would be easy to demonstrate, moreover, that all our judges have really been following that advice all along. 4.3.2.1. All those judges agreed on the abstract propositions that statutes make law and that precedent decisions must be allowed some influence over later decisions. They disagreed about the implicit extension of these supposed legal conventions. 4.4. Strict conventionalism must claim a gap in the law which calls for the exercise of extralegal judicial discretion to make new law, whenever a statute is vague or ambiguous or otherwise troublesome and there is no further convention settling how it must be read. 4.4.1. A soft conventionalist need not concede any gap in such cases, however. 4.4.1.1. He can argue plausibly that there is a correct, if controversial, way to interpret the abstract conventions of legislation and precedent so that they decide any case that might arise. 4.5. It is now apparent that soft conventionalism is not really a form of conventionalism at all in the spirit of the tripartite distinction among conceptions we are now using. 4.5.1. My initial descriptions of conventionalism, in the last chapter and earlier in this one, did not fit it, as we can now see; they fit only strict conventionalism. It is, rather, a very abstract underdeveloped form of law as integrity. 4.6. If conventionalism is to provide a distinct and muscular conception of law, therefore, with even remote connections to the family of popular attitudes we took it to express, then it must be strict, not soft, conventionalism.

4.6.1. We must accept that the positive part of conventionalism- that judges must respect the explicit extension of legal conventionscannot offer any useful advice to judges in hard cases. 4.6.1.1. These will inevitably be cases in which the explicit extension of the various legal conventions contains nothing decisive either way, and the judge therefore must exercise his discretion by employing extralegal standards. 4.6.2. In hard cases the negative parts holds the stage. It tells judges that when statutes are disputed and precedents are of uncertain impact, they should set aside any idea that their decision can rest on rights already established through past political acts. 4.7. In any case it is the strict version of conventionalism that we must test as a general interpretation of our legal practice. 4.7.1. Strict conventionalism claims that judges are liberated from legislation and precedent in hard cases because the explicit extension of these legal conventions is not sufficiently dense to decide those cases. 4.7.2. We should at least notice how the new emphasis on the negative part of conventionalism deflates the hypothesis I mentioned earlier, that the negative part supports the political ideal of protected expectations by marking off cases in which that ideal cannot be satisfied. 4.7.2.1. If all the cases that attract attention, because they are argued in important appellate courts before public scrutiny, are occasions on which judges are scrupulous in denying that they are serving the goal of protected expectations through their decisions, this can hardly do much to reinforce the publics faith in this ideal.

II- Does Conventionalism Fit Our Practice? 5. Convention and Consistency. 5.1. Strict conventionalism fails as an interpretation of our legal practice even when we emphasize its negative part. 5.1.1. It fails for the following paradoxical reason: our judges actually pay more attention to so-called conventional sources of law like statutes and precedents than conventionalism allows than to do. 5.1.1.1. A self-consciously strict conventionalist judge would lose interest in legislation and precedent at just the point when it became clear that the explicit extension of these supposed conventions had run out. 5.1.1.2. He would then acknowledge that there was no law, and he would have no further concern for consistency with the past, he would proceed to make new law by asking what law the present legislature would make or what the people want or what would be in the communitys best interests for the future. 5.2. If a judge believes he should make new law democratically, in the spirit of the present legislature or the present climate of popular opinion, he might turn to past decisions as evidence of what the legislature or public is likely to think or want. 5.2.1. But he would then be treating the past as evidence of present attitudes and convictions. 5.3. It may now be said, however, that a self-conscious conventionalist would indeed ponder over past doctrine in the way actual judges do, not for evidence of popular opinion but more directly, because any lawmaker must take care to make new law consistent with old.

5.3.1. There is a point in this suggestion, but we cannot see it unless we are careful to distinguish between two kinds of consistency a lawmaker might seek: consistency in strategy and consistency in principle. 5.3.1.1. Consistency in strategy: he must be careful that the new rules he lays down fit well enough with rules established by others or likely to be established in the future that the total set of rules will work together and make the situation better rather than pulling in opposite directions and making it worse. 5.3.1.2. A conventionalist judge exercising his discretion to make new law must pay particular attention to this danger because his power to change existing law is very limited. 5.3.1.3. But consistency in strategy would not require a judge to probe the past to discover the best interpretation of a statute or the Constitution when this is controversial or the correct account of a past judicial decision when lawyers disagree how it should be read. 5.4. Consistency in principle is a different matter. It requires that the various standards governing the states use of coercion against its citizens be consistent in the sense that they express a single and comprehensive vision of justice. 5.4.1. A judge who aimed at consistency in principle would indeed worry, as the judges in our sample cases did, about the principles that should be understood to justify past statutes and precedents. 5.5. But conventionalism rejects consistency in principle as a source of legal rights.

5.5.1. A conventionalist judge has no reason for acknowledging consistency in principle as a judicial virtue or for dissecting ambiguous statutes or inexact precedents to try to achieve it. 5.6. Anyone who thinks that consistency in principle, and not merely in strategy, must be at the heart of adjudication, has rejected conventionalism. 6. Convention and Consensus. 6.1. I shall offer another line of argument against conventionalism. 6.1.1. I have not yet challenged the assumption with which conventionalism begins: that whatever consensus lawyers have achieved about legislation and precedent is properly seen as a matter of convention. 6.2. We can safely draw two conclusions from our discussion. 6.2.1. First, nothing need be settled as a matter of convention in order for a legal system not only exist but to flourish. 6.2.1.1. The interpretive attitude needs paradigms to function effectively, but these need not be matters of convention. 6.2.1.2. It will be sufficient if the level of agreement in conviction is high enough at any time to allow debate over fundamental practices like legislation and precedent to proceed contesting discrete paradigms one by one. 6.2.2. Second, so many features of our own constitutional practices are debated one at a time in just this way, that it is implausible to claim conventionalism as a good interpretation of the process by which our legal culture shifts and develops over time.

6.2.2.1. Conventionalism fails here in explaining how particular hard cases like our samples are debated and decided. 6.2.2.2. Our judges treat the techniques they use for interpreting statutes and measuring precedents not simply as tools handed down by the traditions of their ancient craft but as principles they assume can be justified in some deeper political theory, and when they come to doubt this, for whatever reason, they construct theories that seem to them better. (III)-7. Does Conventionalism Justify Our Practice? 7.1. Would conventionalism provide a sound or even decent justification of our legal practices? 7.1.1. I described an argument that it would. This argument appealed to what I called the ideal of protected expectation, that collective force should be used only in accordance with standards chosen and read through procedures the community as a whole knows will be used for that purpose, procedures so widely acknowledged that they are matters of general social or professional convention. 7.1.2. We must now ask whether that ideal is sound, and how far it actually supports conventionalism. 8. Fairness and Surprise. 8.1. It might be thought that the ideal of protected expectation is a distinctly democratic ideal, because it proposes that coercion be used only when authorized by procedures to which the people have consented. 8.1.1. Can we find some reason why elected legislators should choose a conventionalist system of adjudication?

8.2. Someone might say that if we pretend there can be law when it is not clear what the law is, we will lose sight of the intimate connection between law and fair warning, and our politics will be less just in the future. 8.2.1. Only a system candidly committed to conventionalism, which admits no law beyond convention, can provide the protection we need. 8.3. This argument assumes that reducing surprise is a valuable and important goal of political morality. Is that true? 8.3.1. The suggestion that conventionalism reduces surprise must assume, then, not that surprise is unfair but that it is undesirable for some other reason: that it is inefficient, for example, or imposes unnecessary risks, etc.. 8.4. But conventionalism cannot be justified on the sole ground that surprise is inefficient or undesirable in these ways, because conventionalism does not protect against surprise as well as a simpler and more straightforward theory of adjudication would. 8.4.1. We have already noticed in the sense in which conventionalism is bilateral: it insists that if no decision of some case can be found within the explicit extension of a legal convention one way or the other, the judge is obliged to make new law as best as he can. 8.5. The political argument for conventionalism I set out a moment ago supposes that this kind of situation is inevitable, that no theory of adjudication can prevent it. 8.5.1. It defends conventionalism as protecting people from surprise as much as possible.

8.5.2. But if we had that aim in mind exclusively, we would choose a different theory of adjudication, which we might call unilateral conventionalism or just unilateralism. 8.5.2.1. Roughly, unilateralism provides that the plaintiff must win if he or she has a right to win established in the explicit extension of some legal convention, but that otherwise the defendant must win. 8.5.2.2. However, unilateralism is not even a remotely eligible interpretation of our legal conduct and practice. 8.6. Strict conventionalism seems more eligible than unilateralism precisely because it is bilateral. 8.6.1. But that very fact requires a conventionalist to find a more complex political justification than the one I just described. 8.6.1.1. He must argue not merely that surprise is inefficient and undesirable but that in some circumstances surprise must nevertheless be accepted because of some other, then more important, principle or policy. 8.6.1.2. He must show that the bilateral structure of conventionalism effectively distinguishes between different circumstances, those in which surprise should be avoided and those in which it must, for these competing reasons, be tolerated. 9. Convention and Coordination. 9.1. Some legal philosophers offer an argument attempting exactly that. 9.1.1. They try to explain why surprise is generally undesirable and also when it should nevertheless be accepted.

9.2. This account of the virtues of conventionalism falls in neatly with the difference I described earlier between agreement in conviction, and also with recent philosophical explanations of what a convention is. 9.2.1. A convention exists when people follow certain rules or maxims for reasons that essentially include their expectation that others will follow the same rules or maxims, and they will follow rules for that reason when they believe that on balance having some settled rule is more important than having any particular rule. 9.2.2. In the contrasting situation, when there is no convention but only agreement in conviction, everyone follows the same rule but principally because he thinks it independently the best rule to follow. 9.3. Our new argument for the political virtues of conventionalism uses these distinctions to show why the line this theory draws between cases decided by law and cases calling for judicial legislation strikes the right balance between predictability and flexibility. 9.3.1. Since it matters to some extent which rule is chosen, we do best to use convention only to protect decisions that some responsible political institution has actually taken on the merits and to not include under that umbrella decisions by default, that is decisions no one has actually made. 9.3.1.1. If a decision has been taken, and there can be no controversy what decision that is, then everyone should have a right that that decision be enforced until it is publicly disavowed in the same way. 9.3.1.2. But if no decision has been taken either way, then the court should be free to decide on the merits, making the best decision for the future, though of course taking into account strategic consistency.

10. Conventionalism and Pragmatism. 10.1. The defense of conventionalism we have now constructed has two parts. 10.1.1. First, that wise adjudication consists in finding the right balance between predictability and flexibility; 10.1.2. Second, that the right balance is secured by judges always respecting past explicit decisions of political institutions but not enforcing decisions by default in the way unilateralism does. 10.2. The second part seems more vulnerable than the first. 10.2.1. Why does that rather rigid policy secure the right balance, rather than a more sophisticated policy that could be sensitive to the competing merits of predictability and flexibility case by case? 10.2.2. The second general conception of law I introduced in the last chapter, legal pragmatism, holds that people are never entitled to anything but the judicial decision that is, all things considered, best for the community as a whole, without regard to any past political decision. 10.3. The practical difference between the two theories of adjudication is therefore this: 10.3.1. In a conventionalist regime judges would not think themselves free to change rules adopted pursuant to the reigning legal conventions just because on a balance a different rule would be more just or efficient. 10.3.2. In a pragmatist regime no conventions of that sort would be recognized, and though judges would normally enforce decisions made by other political institutions in the past, they would recognize no general duty to do so.

10.4. If we are tempted to choose conventionalism on the ground that it provides an acceptable strategy for reaching the most efficient balance between certainty and flexibility, then we should choose pragmatism, which seems a far better strategy, instead. 10.5. We can summarize. 10.5.1. In the earlier part of this chapter I argued that conventionalism fits our legal practices badly. 10.5.2. I asked whether that conception would justify these practices, by providing an attractive picture of laws point, if it fit well. 10.5.3. We have now seen that it would not, that we have no reason to strain to make it fit. 10.6. The failure of conventionalism as an interpretation of our law is complete: it fails on both dimensions of interpretation. SEMINRIO 07- FALTANDO! Lgica e Metodologia Jurdica- Seminrio 08: Hart Postscript, parts 1, 2 and 3. I. Introductory. I.I. I focus in this Postscript mainly on Dworkins criticisms because he has not only argued that nearly all the distinctive theses of this book are radically mistaken, but he has called in question the whole conception of legal theory and of what it should do which is implicit in the book. I.II. The first and longer section of this Postscript is concerned with Dworkins arguments. I.II.I. But I consider in a second section the claims of a number of other critics that in my exposition of some of my theses are not only

obscurities and inaccuracies but at certain points actual incoherence and contradiction. I.II.II. Here I have to admit that in more instances than I care to contemplate my critics have been right and I take the opportunity of this Postscript to clarify what is obscure, and to revise what I originally wrote where it is incoherent or contradictory. 1. The nature of legal theory. 1.1. My aim in this book was to provide a theory of what law is which is both general and descriptive. 1.1.1. It is general in the sense that it is not tied to any particular legal system or legal culture, but seeks to give an explanatory and clarifying account of law as a complex social and political institution with a rule-governed aspect. 1.1.2. My account is descriptive in that it is morally neutral and has no justificatory aims: it does not seek to justify or commend on moral or other grounds the forms and structures which appear in my general account of law, though a clear understanding of these is, I think, an important preliminary to any useful criticism of law. 1.2. Legal theory conceived in this manner as both descriptive and general is a radically different enterprise from Dworkins conception of legal theory (or jurisprudence as he often terms it) as in part evaluative and justificatory and as addressed to a particular legal culture, which is usually the theorists own and in Dworkins case is that of Anglo-American law. 1.2.1. The central task of legal theory so conceived is termed by Dworkin interpretive and is partly evaluative, since it consists in the identification of the principles which both best fit or cohere with the settled law and legal practices of a legal system and also provide the

best moral justification for them, thus showing the law in its best light. 1.3. It is not obvious why there should be or indeed could be any significant conflict between enterprises so different as my own and Dworkins conceptions of legal theory. 1.3.1. I am not concerned to dispute his elaboration of these interpretive ideas except in so far as he claims that positivist legal theory such as that presented in this book can be illuminatingly restated as such an interpretive theory. 1.3.2. This latter claim is in my view mistaken and I give below my reasons for objecting to any such interpretive version of my theory. 1.4. In his books Dworkin appears to rule out general and descriptive legal theory as misguided or at best simply useless. 1.5. His central objection seem to be that legal theory must take account of an internal perspective on the law which is the viewpoint of an insider or participant in a legal system, and no adequate account of this internal perspective can be provided by a descriptive theory whose viewpoint is not that of a participant but that of an external observer. 1.5.1. But there is in fact nothing in the project of a descriptive jurisprudence as exemplified in my book to preclude (impedir) a non-participant external observer from describing the ways in which participants view the law from such an internal point of view. 1.5.2. It is true that for this purpose the descriptive legal theorist must understand what it is to adopt the internal point of view and in that limited sense he must be able to put himself in the place of an insider; but this is not to accept the law or share or endorse the insiders internal point of view or in any other way to surrender his descriptive stance (posio).

1.6. Dworkin in his criticism of descriptive jurisprudence seems to rule out this obvious possibility of an external observer taking account in this descriptive way of a participants internal viewpoint. 1.6.1. There seems no reason to accept that this must be determined by his asking Dworkins interpretive and evaluative question. 1.6.2. Moreover, even if the judges and lawyers of all the legal systems of which the general and descriptive legal theorist had to take account themselves did in fact settle questions of meaning in this interpretive and partly evaluative way, this would be something for the general descriptive theorist to record as a fact on which to base his general descriptive conclusions as to the meaning of such propositions of law. 1.6.2.1. Description may still be description, even when what is described is an evaluation. 2. The nature of legal positivism. 2.1. Positivism as a Semantic Theory. 2.1.1. Though in the first chapter of Laws Empire I am classed with Austin as a semantic theorist and so as deriving a plain-fact positivist theory of law from the meaning of the word law, and suffering from the semantic sting, in fact nothing in my book or in anything else I have written supports such an account of my theory. 2.1.1.1. Thus, my doctrine that developed municipal legal systems contain a rule of recognition specifying the criteria for the identification of the laws which courts have to apply may be mistaken, but I nowhere base this doctrine on the mistaken idea that it is part of the meaning of the word law that there should be such a rule of recognition in all legal systems, or on the even more mistaken idea that if the criteria

for the identification of the grounds of law were not uncontroversial fixed, law would mean different things to different people. 2.1.1.2. Indeed this last argument ascribed to me confuses the meaning of a concept with the criteria for its application. 2.1.2. Dworkins argument is that since one of the distinctive features of law as a social phenomenon is that lawyers debate the truth of propositions of law and explain this by reference to the meaning of such propositions, such a descriptive theory of law must after all be semantic. 2.1.2.1. This argument seem to me to confuse the meaning of law with the meaning of propositions of law. 2.1.3. There is one further respect in which Dworkin misrepresents my form of legal positivism. He treats my doctrine of the rule of recognition as requiring that the criteria which it provides for the identification of law must consist only of historical facts and so as an example of plain-fact positivism. 2.1.3.1. I expressly state in this book that in some systems of law, as in the US, the ultimate criteria of legal validity might explicitly incorporate besides pedigree, principles of justice or substantive moral values, and these may form the content of legal constitutional restraints. In ascribing plain-fact positivism to me in Laws Empire Dworkin ignores this aspect of my theory. 2.2. Positivism as an Interpretive Theory. 2.2.1. Dworkins second account of plain-fact positivism does not treat it as a semantic theory or as based on linguistic considerations

but attempts to reconstruct it as a form of Dworkinian interpretive theory called by him conventionalism. 2.2.2. But this interpretivist account of positivism as conventionalism cannot be represented as a plausible version or reconstruction of my theory of law. This is so for two reasons. 2.2.2.1. First, as I have already stated, my theory is not a plain-fact theory of positivism since amongst the criteria of law it admits values, not only plain facts. 2.2.2.2. But secondly and more importantly, whereas Dworkins interpretive legal theory in all its forms rests on the presupposition that the point or purpose of law and legal practice is to justify coercion, it certainly is not and never has been my view that law has this as its point or purpose. 2.2.3. I think it quite vain to seek any more specific purpose which law as such serves beyond providing guides to human conduct and standards of criticism of such conduct. 2.2.3.1. This will not of course serve to distinguish laws from other rules or principles with the same general aims; the distinctive features of law are the provision it makes by secondary rules for the identification, change, and enforcement of its standards. 2.2.3.2. Legal coercion, though of course an important matter, is a secondary function. Its justification cannot be sensibly taken to be the point or purpose of the law as such. 2.2.4. The justification of coercion to which the rule of recognition contributes therefore cannot be represented as its general point or purpose, still less can it be represented as the general point or

purpose of the law as a whole. Nothing in my theory suggests that it can. 2.3. Soft Positivism. 2.3.1. Dworkin in attributing to me a doctrine of plain-fact positivism has mistakenly treated my theory as not only requiring (as it does) that the existence and authority of the rule of recognition should depend on the fact of its acceptance by the courts, but also as requiring (as it does not) that the criteria of legal validity which the rule provides should consist exclusively of the specific kind of plain fact which he calls pedigree matters and which concern the manner and form of law-creation or adoption. 2.3.2. This is doubly mistaken. 2.3.2.1. First, it ignores my explicit acknowledgement that the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values; so my doctrine is what has been called soft positivism and not as in Dworkins version of it plain-fact positivism. 2.3.2.2. Secondly, there is nothing in my book to suggest that the plain-fact criteria provided by the rule of recognition must be solely matters of pedigree; they may instead be substantive constraints on the content of legislation. 2.3.3. Dworkins most fundamental criticism is that there is a deep inconsistency between soft positivism, which permits the identification of the law to depend on controversial matters of conformity with moral or other value judgments, and the general positivist picture of law as essentially concerned to provide reliable public standards of conduct which can be identified with certainty as

matters of plain fact without dependence on controversial moral arguments. 2.3.3.1. This criticism of soft positivism seems to me to exaggerate both the degree of certainty which a consistent positivist must attribute to a body of legal standards and the uncertainty which will result if the criteria of legal validity include conformity with specific moral principles or values. 2.3.3.1.1. It is of course true that an important function of the rule of recognition is to promote the certainty with which the law may be ascertained. 2.3.3.1.2. But the exclusion of all uncertainty at whatever costs in other values is not a goal which I have ever envisaged for the rule of recognition. 2.3.3.1.3. A margin of uncertainty should be tolerated, and indeed welcomed in the case of many legal rules, so that an informed judicial decision can be made when the composition of an unforeseen case is known and the issues at stake in its decision can be identified and so rationally settled. 2.4. Dworkins second criticism of the consistency of my version of soft positivism raises different and more complex issues concerning the determinacy and completeness of law. 2.4.1. My view advanced in this book is that legal rules and principles identified in general terms by the criteria provided by the rule of recognition often have what I call frequently open texture, so that when the question is whether a given rule applies to a particular case the law fails to determine an answer either way and so proves partially indeterminate.

2.4.1.1. Such cases are not merely hard cases, controversial in the sense that reasonable and informed lawyers may disagree about which answer is legally correct, but the law in such cases is fundamentally incomplete: it provides no answer to the question at issue in such cases. 2.4.1.2. They are legally unregulated and in order to reach a decision in such cases the courts must exercise the restricted law-making function which I call discretion. 2.4.2. Dworkin rejects the idea that the law may be incomplete in this way and leave gaps to be filled by the exercise of such a lawcreating discretion. 2.4.2.1. This view he thinks is a mistaken inference from the fact that a proposition of law asserting the existence of a legal right or a legal duty may be controversial and so a matter about which reasonable and informed men may disagree, and when they do disagree there is often no way of demonstrating conclusively whether it is true or false. 2.4.3. This distinction between law that is controversial and law that is incomplete or indeterminate is a matter of considerable importance for Dworkins interpretive theory, since according to that theory a proposition of law is true only if in conjunction with other premises it follows from principles which both best fit the legal systems institutional history and also provide the best moral justification for it. 2.4.3.1. Hence for Dworkin the truth of any proposition of law ultimately depends on the truth of a moral judgment as to what best justifies and since for him moral judgments are essentially controversial, so are all propositions of law.

2.5. Soft positivism, which allows that a criterion of legal validity may be in part a moral test is, so Dworkin claims, involved in a second inconsistency. 2.5.1. For it is not only inconsistent with the positivist picture of law as identifiable with certainty, but inconsistent also with the wish which he attributes to positivists to make the objective standing propositions of law independent of any commitment to any controversial philosophical theory of the status of moral judgments. 2.6. I still think legal theory should avoid commitment to controversial theories of the general status of moral judgments and should leave open, as I do in this book, the general question of whether they have what Dworkin calls objective standing. 2.6.1. For whatever the answer is to this philosophical question, the judges duty will be the same: namely, to make the best moral judgment he can on any moral issues he may have to decide. 2.6.2. Of course, if the question of the objective standing of moral judgments is left open by legal theory, as I claim it should be, then soft positivism cannot be simply characterized as the theory that moral principles or values may be among the criteria of legal validity, since if it is an open question whether moral principles and values have objective standing, it must also be an open question whether soft positivist provisions purporting to include conformity with them among the tests for existing law can have that effect or instead, can only constitute directions to courts to make law in accordance with morality. 3. The Nature Of Rules. 3.1. The Practice Theory of Rules.

3.1.1. At various points in this book I draw attention to the distinction between internal and external statements of law and between internal and external aspects of law. 3.1.2. The account I have given of these has become known as the practice theory of rules because it treats the social rules of a group as constituted by a form of social practice comprising both patterns of conduct which I have called acceptance. 3.1.2.1. This consists in the standing disposition of individuals to take such patterns of conduct both as guides to their own future conduct and as standards of criticism which may legitimate demands and various forms of pressure for conformity. 3.1.2.2. The external point of view of social rules is that of an observer of their practice, and the internal point of view is that of a participant in such practice who accepts the rules as guides to conduct and as standards of criticism. 3.1.3. Some of Dworkins criticism of my original account of social rules is certainly sound and important for the understanding of law, and in what follows here I indicate the considerable modifications in my original account which I now think necessary. 3.1.3.1. My account is, as Dworkin has claimed, defective in ignoring the important difference between a consensus of convention manifested in a groups conventional rules and a consensus of independent conviction manifested in the concurrent practices of a group. 3.1.3.2. My account of social rules is, as Dworkin has also rightly claimed, applicable only to rules which are conventional in the sense I have now explained (consensus of convention?).

3.1.3.2.1. This considerably narrows the scope of my practice theory and I do not now regard it as a sound explanation of morality, either individual or social. 3.1.3.2.2. But the theory remains as a faithful account of conventional social rules which include, besides ordinary social customs (which may or may not be recognized as having legal force), certain important legal rules including the rule of recognition, which is in effect a form of judicial customary rule existing only if it is accepted and practiced in the lawidentifying and law-applying operations of the courts. 3.1.3.2.3. Enacted legal rules by contrast, though they are identifiable as valid legal rules by the criteria provided by the rule of recognition, may exist as legal rules from the moment of their enactment before any occasion for their practice has arisen and the practice theory is not applicable to them. 3.1.4. When the question arises as to why those who have accepted conventional rules as a guide to their behavior or as standards of criticism have done so I see no reason for selecting from the many answers to be given a belief in the moral justification of rules as the sole possible or adequate answer. 3.1.5. It assumes that the rule is meant to determine completely the legal result in particular cases, so that any legal issue arising in any case could simply be solved by mere appeal to the criteria or tests provided by the rule. 3.1.5.1. But this is a misconception: the function of the rule is to determine only the general conditions which correct legal decisions must satisfy in modern systems of law.

3.1.5.2. The rule does this most often by supplying criteria of validity which Dworkin calls matters of pedigree and which refer not to the content of the law but to the manner and form in which the laws are created or adopted; but as I have said in addition to such pedigree matters the rule of recognition may supply tests relating not to the factual content of laws but to their conformity with substantive moral values or principles. 3.1.5.3. To the rule of recognition viewed in this way the practice theory of rules is fully applicable. 3.2. Rules and Principles. 3.2.1. For long the best known of Dworkins criticisms of this book was that it mistakenly represents law as consisting solely of all-ornothing rules, and ignores a different kind of legal standard, namely legal principles, which play an important and distinctive part in legal reasoning and adjudication. 3.2.1.1. If I were to admit that law consists in part of principles I could not, according to him, consistently maintain, as I have done, that the law of a system is identified by criteria provided by a rule of recognition accepted in the practice of the courts, or that the courts exercise a genuine though interstitial law-making power or discretion in those cases where the existing explicit law fails to dictate a decision, or that there is no important necessary or conceptual connection between law and morality. 3.2.2. I think all my critics who have accused me of ignoring principles would agree that there are at least two features which distinguish them from rules. 3.2.2.1. The first is a matter of degree: principles are, relatively to rules, broad, general, or unspecific, in the sense

that often what would be regarded as a number of distinct rules can be exhibited as the exemplifications or instantiations of a single principle. 3.2.2.2. The second feature is that principles, because they refer more or less explicitly to some purpose, goal, entitlement, or value, are regarded from some point of view as desirable to maintain, or to adhere to, and so not only as providing an explanation or rationale of the rules which exemplify them, but as at least contributing to their justification. 3.2.3. Besides these two relatively uncontroversial features of breadth and desirability from some point of view which account for the explanatory and justificatory role of principles in relation to rules, there is a third distinguishing feature which I myself think is a matter of degree whereas Dworkin who regards it as crucial does not. 3.2.3.1. Rules, according to him, function in the reasoning of those who apply them in an all-or-nothing manner in the sense that if a rule is valid and applicable at all to a given case then it necessitates to determine the legal result or outcome. 3.2.3.2. Legal principles, according to Dworkin, differ from such all-or-nothing rules because when they are applicable they do no necessitate a decision but point towards or count in favour of a decision, or state a reason which may be overridden but which the courts take into account as inclining in one direction or another. I shall, for short, call this feature of principles their non-conclusive character.

3.2.4. Legal principles, according to Dworkin, differ from rules because they have a dimension of weight but not of validity, and hence it is that in conflict with another principles of greater weight, one principles may be overridden and fail to determine a decision, but none the less will survive intact to be used in other cases where it may win in competition with some other principles of lesser weight. 3.2.4.1. Rules, on the other hand, are either valid or invalid but do not have this dimension of weight, so if as initially formulated they conflict, only one of them according to Dworkin can be valid, and a rule which loses in competition with another must be reformulated so as to make it consistent with its competitor and hence inapplicable to the given case. 3.2.5. I see no reason to accept either this sharp contrast between legal principles and legal rules, or the view that if a valid rule is applicable to a given case it must, unlike a principles always determine the outcome of the case. 3.2.5.1. I do not think Dworkin can be coherent. His earliest examples es may come into conflict with principles and that a principles will sometimes win in competition with a rule and sometimes lose. 3.2.5.2. This incoherence in the claim that a legal system consists both of all-or-nothing rules and non-conclusive principles may be cured if we admit that the distinction is a matter of degree. 3.2.6. I certainly think that arguments from such non-conclusive principles are an important feature of adjudications and legal reasoning, and that it should be marked by an appropriate terminology.

3.2.6.1. Much credit is due to Dworkin for having shown and illustrated their importance and their role in legal reasoning, and certainly it was a serious mistake on my part not to have stressed their non-conclusive force. 3.2.6.2. But I certainly did not intend in my use of the word rule to claim that legal systems comprise only all-ornothing or near-conclusive rules. 3.2.6.3. I not only drew attention to what I termed variable legal standards which specify factor to be taken into account and weighted against others, but I attempted to explain why some areas of conduct were suitable for regulation not by such variable standards as due care but rather by nearconclusive rules prohibiting or requiring the same specific actions in all but rare cases. Lgica e Metodologia Jurdica- seminrio 09- 29/05/13. Harts Postscript: Parts IV, V and V. 4. Principles and the Rule of Recognition. 4.1. Pedigree and Interpretation. 4.1.1. Dworkin has claimed that legal principles cannot be identified by criteria provided by a rule of recognition manifested in the practice of the courts and that, since principles are essential elements of law, the doctrine of a rule of recognition must be abandoned. 4.1.1.1. According to him, legal principles can only be identified by constructive interpretation as members of the unique set of principles which both best fits and best justifies the whole institutional history of the settled law of a legal system.

4.1.2. My present criticism is that preoccupation with constructive interpretation has led Dworkin to ignore the fact that many legal principles owe their status not to their content serving as interpretation of settled law, but to what he calls their pedigree; that is the manner of their creation or adoption by a recognized authoritative source. This preoccupation has, I think, in fact led him into a double error: 4.1.2.1. First, to the belief that legal principles cannot be identified by their pedigree. 4.1.2.2. And secondly to the belief that a rule of recognition can only provide pedigree criteria. 4.1.3. Both these beliefs are mistaken. 4.1.3.1. The first is so because there is nothing in the nonconclusive character of principles nor in their other features to preclude their identification by pedigree criteria. 4.1.3.1.1. For plainly a provision in a written constitution or a constitutional amendment or a statute may be taken as intended to operate in the nonconclusive way characteristic of principles, as providing reasons for decision which may be outweighed in cases where some other rule or principle presents stronger reasons for an alternative decision. 4.1.3.1.2. Also some legal principles, including some basic principles of the Common Law, are identified as law by the pedigree test in that they have been consistently invoked by courts in ranges of different cases as providing reasons for a decision, which must

be taken into account, though liable to be overridden in some cases by reasons pointing the other way. 4.1.3.1.3. If it is conceded, as surely it must be, that there are at least some legal principles which may be captured or identified as law by pedigree criteria provided by a rule of recognition, then Dworkins criticism must be reduced to the more modest claim that there are many legal principles that cannot be so captured by reference to any other test than that of belonging to that coherent scheme of principles which both best fits the institutional history and practices of the system and best justifies them. 4.1.3.1.3.1. At first sight this interpretivist test seems not to be an alternative to a criterion provided by a rule of recognition, but, as some critics urged, only a complex soft-positivist form of such a criterion identifying principles by their content not by their pedigree. 4.1.3.1.4. So there is certainly no incompatibility such as Dworkin claims between the admission of principles as part of the law and the doctrine of a rule of recognition. 4.1.3.2. In fact a stronger conclusion is warranted: namely that a rule of recognition is necessary if legal principles are to be identified by such (interpretive) criterion. 4.1.3.2.1. This is so because the starting point for the identification of any legal principles to be brought to light by Dworkins interpretive test is some specific

area of the settled law which the principle fits and helps to justify. 4.1.3.2.2. The use of that criterion therefore presupposes the identification of the settled law, and for that to be possible a rule of recognition specifying the sources of law and the relationships of superiority and subordination holding between them is necessary. 4.1.3.2.3. In the terminology of Laws Empire, the legal rules and practices which constitute the startingpoints for the interpretive task of identifying underlying or implicit legal principles constitute preinterpretive law. 4.1.3.2.4. The main difference between my view and Dworkins here is that whereas I ascribe the general agreement found among judges as to the criteria for the identification of the sources of law to their shared acceptance of rules providing such criteria, Dworkin prefers to speak not of rules, but of consensus and paradigms and assumptions which members of the same interpretive community share. 4.1.3.2.4.1. Of course, as Dworkin has made clear, there is an important distinction between a consensus of independent convictions where the concurrence of others is not part of the reason which each party to the consensus has for concurring, and a consensus of convention where it is such a part. 4.1.3.2.4.2. I conclude therefore that whatever differences may remain between rules and the

assumptions and consensus and paradigms of which Dworkin speaks, his explanation of the judicial identification of the sources of law is substantially the same as mine. 4.1.4. However, large theoretical differences remain between mine and Dworkins view. 4.1.4.1. For Dworkin would certainly reject my treatment of his interpretive test for legal principles as merely the specific form taken in some legal systems by a conventional rule of recognition whose existence and authority depend on its acceptance by the courts. 4.1.4.1.1. This would in his view utterly (completely) misrepresent and demean the project of a constructive interpretation designed to show the law in the best moral light, which in Dworkins view is involved in the identification of the law. 4.1.4.2. But since there are no actual legal systems where this full holistic criterion is used, but only systems like English law and American law where more modest exercises of constructive interpretation are undertaken to identify latent legal principles, the only question to be considered is whether such exercises are to be understood as the application of a criterion provided by a conventional rule of recognition or in some other way, and if so what their legal status is. 5. Law and Morality. 5.1. Rights and Duties.

5.1.1. I argue in this book that though there are many different contingent connections between law and morality there are no necessary conceptual connections between the content of law and morality; and hence morally iniquitous provisions may be valid as legal rules or principles. 5.1.2. Dworkin has rejected this idea in favour of the view that there must be at least prima-facie (at first sight) moral grounds for assertions of the existence of legal rights and duties. 5.1.3. Dworkins criticism is mistaken. 5.1.3.1. It is so for the following reasons: legal rights and duties are the point at which the law with its coercive resources respectively protects individual freedom and restricts it or confers on individuals or denies to them the power to avail themselves of the laws coercive machinery. 5.1.3.1.1. So whether the laws are morally good or bad, just or unjust, rights and duties demand attention as focal points in the operations of the law which are of supreme importance to human beings and independently of moral merits of the laws. 5.2. The Identification of the Law. 5.2.1. The most fundamental difference relating to connections between law and morality between the legal theory developed in this book and Dworkins theory concerns the identification of the law. 5.2.2. Considered as an alternative to the positivists theory that the existence and content of the law may be identified without reference to morality, Dworkins theory as it originally stood was vulnerable to the following criticism.

5.2.2.1. Where the law identified by reference to its social sources is morally iniquitous, principles providing the best justification for it could only be the least iniquitous of principles fitting that law. 5.2.2.1.1. But such least iniquitous principles can have no justifying force and cannot constitute any moral limit or constraint on what can count as law and since they cannot fail to fit any legal system, however evil, the theory purporting to identify law by reference to them is indistinguishable from the positivist theory that the law may be identified without any reference to morality. 5.2.3. In introducing his later distinction between interpretive and preinterpretive law Dworkin concedes that there may be legal systems so evil that no interpretation of their laws which we could find morally acceptable is possible. 5.2.3.1. But since our resources for describing such situations are highly flexible we are not bound to come to that conclusion when we can instead say that legal systems however evil are law in a preinterpretive sense. 5.2.3.1.1. To this Dworkin would only add as it were a rider manifesting his general adherence to his interpretive point of view that such evil systems are law only in a preinterpretive sense. 5.2.3.2. I find that this appeal to the flexibility of our language and the introduction at this point of the distinction between interpretive and preinterpretive law concedes rather than weakens the positivists case.

5.2.3.2.1. For it does little more than convey the message that while he insists that in a descriptive jurisprudence the law may be identified without reference to morality, things are otherwise for a justificatory interpretive jurisprudence according to which the identification of the law always involves a moral judgment as to what best justifies the settled law. 5.2.4. One further modification by Dworkin of his interpretive theory has an important bearing on his account of legal rights. 5.2.4.1. In his holistic theory as originally expounded the identification of law and its justification are both treated as following from that unique set of principles which both best fit all of the settled law of a system and best justify it. 5.2.4.2. But since the settled law of a system may be so evil that no overall justifying interpretation of its law is possible, Dworkin has observed that these two functions may become separated, leaving only principles of law identified without reference to any morality. 5.2.4.2.1. But such law cannot establish any rights having the prima-facie moral force which Dworkin claims all legal rights have. 5.2.4.2.2. Yet as Dworkin later recognized, even where the system is so wicked that no moral or justifying interpretation of law as a whole is possible there may still be situations where individuals may properly be said to have rights with at least primafacie moral force.

5.2.4.3. To cater for such situations Dworkin qualifies his original idea that legal rights and duties with prima-facie moral force must flow from a general interpretive theory of the law, and he recognizes such situations as constituting independently of his general theory special reasons for ascribing legal rights with some moral force to individuals. 6. Judicial Discretion. 6.1. The sharpest direct conflict between the legal theory of this book and Dworkins theory arises from my contention that in any legal system there will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete. 6.2. This picture of the law as in part indeterminate or incomplete and of the judge as filling the gaps by exercising a limited law-creating discretion is rejected by Dworkin as a misleading account both of the law and of judicial reasoning. 6.2.1. On this interpretive view, the law is never incomplete or indeterminate, so the judge never has occasion to step outside the law and exercise a law-creating power in order to reach a decision. 6.3. It is important that the law-creating power which I ascribe to the judges to regulate cases left partly unregulated by the law are different from those of a legislature: not only are the judges powers subject to many constraints narrowing his choice from which a legislature may be quite free. 6.3.1. So his powers are interstitial as well as subject to many substantive constraints.

6.3.2. Nonetheless there will be points where the existing law fails to dictate any decision as the correct one, and to decide cases where this is so the judge must exercise his law-making powers. 6.3.2.1. But he must not do this arbitrarily: that is he must always have some general reasons justifying his decision and he must act as a conscientious legislator. 6.4. Against my account of the courts as exercising such a limited discretionary power to settle cases left incompletely regulated by the law, Dworkin directs three main criticisms. 6.4.1. The first is that this account is a false description of the judicial process and of what courts do in hard cases. 6.4.1.1. Judges, it is said, in deciding cases and lawyers pressing them to decide in their favour, do not speak of the judge as making the law even in novel cases. 6.4.1.2. There is no doubt that the familiar rhetoric of the judicial process encourages the idea that there are in a developed legal system no legally unregulated cases. But how seriously is this to be taken? 6.4.1.2.1. Judges of the stature of Oliver Wendell Holmes and Cardozo in the USA, or Lord Macmillan or Lord Radcliffe in England, and a host of other lawyers, both academic and practicing, have insisted that there are cases left incompletely regulated by the law where the judge has an inescapable though interstitial law-making task, and that so far as the law is concerned many cases could be decided either way.

6.4.1.3. One principal consideration helps to explain resistance to the claim that judges sometimes both make and apply law and also elucidates the main features which distinguish judicial from a legislatures law-making. 6.4.1.3.1. This is the importance characteristically attached by courts when deciding unregulated cases to proceeding by analogy so as to ensure that the new law they make, though it is new law, is in accordance with principles or underpinning reasons recognized as already having a footing in the existing law. 6.4.1.4. This indeed is the very nucleus of the constructive interpretation which is so prominent a feature of Dworkins theory of adjudication. 6.4.1.4.1. But though this procedure certainly defers, it does not eliminate the moment for judicial lawmaking, since in any hard case different principles supporting competing analogies may present themselves and a judge will often have to choose between them, relying, like a conscientious legislator, on his sense of what is best and not on any already established order of priorities prescribed for him by law. 6.4.2. Dworkins other criticisms of my account of judicial discretion condemn it no as descriptively false but for endorsing a form of law-making which is undemocratic and unjust. 6.4.2.1. Judges are not usually elected and in a democracy, so it is claimed, only the elected representatives of the people should have law-making powers. 6.4.2.2. There are many answers to this criticism.

6.4.2.2.1. That judges should be entrusted with lawmaking powers to deal with disputes which the law fails to regulate may be regarded as a necessary price to pay for avoiding the inconvenience of alternative methods of regulating them such as reference to the legislature. 6.4.2.2.2. Secondly, the delegation of limited legislative powers to the executive is a familiar feature of modern democracies and such delegation to the judiciary seems a no greater menace to democracy. 6.4.3. Dworkin makes the further accusation that judicial lawmaking is unjust and condemns it as a form of retrospective lawmaking which is, of course, commonly regarded as unjust. 6.4.3.1. But the reason for regarding retrospective lawmaking as unjust is that it disappoints the justified expectations of those who, in acting, have relied on the assumption that the legal consequences of their acts will be determined by the known state of the law established at the time of their acts. 6.4.3.2. This objection, however, seem quite irrelevant in hard cases since these are cases which the law has left incompletely regulated and where there is no known state of clear established law to justify expectations.