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I might turn this into a short essay in a bit, but:
My thinking is that the core question of analytical jurisprudence is what people *are actually doing* when they have a discussion about what the law ‘says,’ or even when they just think through the question for themselves.
My thinking is that the core question of analytical jurisprudence is what people *are actually doing* when they have a discussion about what the law ‘says,’ or even when they just think through the question for themselves.
Working is clear in the introductory chapter (preface?) of Law’s Empire is directed at answering this question. When judges, lawyers, law professors, and laypeople argue about what the law ‘says’ about, say, abortion or gay marriage, they aren’t disagreeing about legal history.
They’re engaging in an interpretation of past legal practice which irreducibly resorts to practical reason, with each participant coming up with what feels to them the morally ‘right’ way to fit legal sources and extant practices together into a coherent whole.
This seems right to me, almost incontrovertibly so. This is because law is a tool that human beings use to organize collective life and to settle controversies about who should be allowed to do what. Law settles moral questions (I don’t say ‘answers’ them); it uses moral ideas.
My best interpretation of the legal positivistic alternative to Dworkin is that judges, lawyers, law professors, politicians, whoever simply do not understand what’s actually going on when they have a fundamental disagreement about what the law says.
“You idiots,” the positivist says, “the law has simply run out. You’re disagreeing because it does not answer the question. Stop being so stupid, SCOTUS justice. Stop being so stupid, Harvard Professor. Stop lying and pretending you aren’t just making it up as you go along.”
That seems...deeply unsatisfying to me?
Dworkin himself attacks the positivists here, again in Law’s Empire. The challenge basically goes as follows: Positivists say that law is a matter of social fact. What the law is is a question of what past institutions with one form of authority or another have done.
If you want to look at what the law says, look at what Parliament, the Courts, the administrative agency, and so on have actually done. What the law says in any controversy is just as much a question of empirical fact, if the positivists are right, as whether it’s snowing outside
But clearly you can have issues on which experts have no disagreement whatsoever regarding what the relevant social facts are. The nine justices on SCOTUS, the lower courts, the law professors opining on the right answer all have the *same* knowledge of those facts.
So, if law is SOLELY a matter of looking at those facts, how the Hell can everyone disagree about what the law says?
The positivist position just doesn’t make any sense to me. The question I posed itself is a social scientific one. It’s about what’s going on in peoples’ heads, in the space where intuition is sort of forcing through into the conscious mind ways of thinking about a problem.
(That problem being what the right answer is to a given legal question). The positivistic thesis is incredibly parsimonious: it excises from ‘law’ something that’s traditionally been considered part of the field going back to the Romans, if not earlier.
But the parsimony comes entirely at the expense of losing explanatory power over the core question. It’s no different than saying that my astronomical theory can’t predict anything about the movement of the heavenly bodies, but that’s OK, because it’s more analytically appealing.
Is there any set of questions that positivism *better* helps us address, as a theory, than the alternative? Bentham thought so, as, I suppose, did Hobbes, as the two great thinkers at the origin of the positivistic tradition.
[and my coffee is done[
