The Debate that Never Was? Hart, Dworkin and the Future of Jurisprudence

9:15-9:30: Coffee & Welcome

09:30: Session 1

• Scott Hershovitz (Michigan): Not a Set of Norms
• Mitchell Berman (Pennsylvania): Principled Positivism

Discussant: Kate Greasley (UCL)

11:15 Refreshment Break

11:30: Session 2

• Andrei Marmor (Cornell): What’s Left of General Jurisprudence: On Law’s Ontology and Content
• George Letsas (UCL): Domain-Specific Moral Obligations

13:00: lunch break

14:00: Session 3

• Scott Shapiro (Yale): The Future of the Hart-Dworkin Debate
• Nicos Stavropoulos (Oxford): Climbing the Mountain

Discussant: Conor Crummey (UCL)

15:30 Refreshment break

15:45: Panel 4

• Hilary Nye (LSE): The One-System View and Dworkin’s Anti-Archimedean Eliminativism
• Kevin Toh (UCL): Everything in its Right Place

Discussant: Allie Hearne (UCL)

17:15: Refreshment break

17:30: Plenary Session:
Jurisprudence as an academic subject – What To Teach and What Not

18:30 Concluding remarks and reception

Scott Hershovitz, Not a Set of Norms
Lots of philosophers start from the premise that the law is a set of norms. They then attempt to characterize that set and explain how it is constituted. In this paper, I contest this way of thinking about law. There are many sets of norms associated with our legal practices, any number of which can be helpfully labeled "the law," depending on what we are trying to convey. I argue that the central thesis of legal positivism--that the content of the law is determined by social facts--is true in relation to some of these sets but not others. Significantly, it is not true of the set of norms that is contested in court.

Mitchell Berman, Principled Positivism
On the standard reading of Hart, legal norms are validated by a set of necessary and sufficient conditions picked out by a social practice that Hart dubbed a “rule of recognition.”  In “The Model of Rules I,” Dworkin objected that weighted norms—what he called “principles”—cannot arise by validation.  As an alternative, he proposed (roughly) that legal norms are those that are most morally justified in light of the institutional history of the regime.  In response, positivists from Raz to Hart denied that weighted norms are incapable of being validated, and therefore that the rule/principle distinction caused any trouble for the rule-of-recognition account.

This paper seeks to effectuate a marriage of Hart and Dworkin.  It argues that Dworkin was right to insist that the difference between strict and weighted norms is of fundamental importance, but wrong to conclude that this difference threatened positivism.  On my view, strict legal norms (rules) are neither validated by a set of necessary and sufficient conditions nor justified by moral principles.  Instead, they are determined by the aggregation or accrual of weighted legal norms (principles) that are themselves grounded in communicative, behavioral, and psychological facts about the participants in legal practice.  I term this account “principled positivism.”  In short, the paper offers a new picture of the determination relationship that obtains between practices and rules in the law and in complex artificial systems of practical normativity more generally.

George Letsas, Domain-Specific Moral Obligations
Jurisprudence is the study of the nature of law. If we take law to be a separate field of philosophical inquiry, then we need an account of what makes the field distinct from others. This applies to positivists and non-positivists alike. Non-positivists must be able to explain what is unique or special about the branch of political morality to which law belongs. They must be able to distinguish legal obligation from obligations incurred in different ways, including on the basis of institutional events that generate non-legal obligations, such as the obligation to vote against a government that is pursuing unjust policies.

In Dworkin’s late work the branch of morality to which law belongs is identified as those rights and duties that are enforceable on demand by courts. This might appear conclusory as the judge – like the rest of us in everything we do - would be bound by all the branches of morality. It is a mistake however to take judicial enforcement as that which singles out the domain of law. What distinguishes the legal branch within the tree of morality is that it tracks an obligation of role: as citizens, or members of a political community, we have duties to treat one another with equal respect in our interactions. It is this role that makes judicial enforcement salient, since it functions as a coercive mechanism of allocating burdens and benefits within a political community. Legal obligation, qua a concrete instantiation of the more abstract duties of citizenship, is neither a heuristic device, nor a shortcut to the question of what institutional morality requires. Dworkin’s ‘one system view’ far from eliminates the need to give an account – albeit a moral one – of what makes the domain of law special.

Andrei Marmor, What’s Left of General Jurisprudence: On Law’s Ontology and Content
The aim of this paper is to show that general jurisprudence is in no need of reinvention. The sentiment shared by many contemporary legal philosophers that theories about the nature of law have reached a dead end is challenged here by showing that the debates about the ontology of law and about the determinants of legal contents leave many interesting questions open for serious debate. The paper argues that traditional legal positivism is best seen as a theory about the ontological grounding of legal facts, and that a reductive account of this grounding can be provided with a more sophisticated account of the artifact nature of law, aided by some ideas derived from fictionalism. The paper also acknowledges that such a reductive ontology of law faces serious challenges, particularly from the view point of theories about determinants of legal contents. By explaining these challenges and pointing out how they may be met, the paper aims to show that some the age old debates about the nature or law are very much alive and worthy of serious philosophical inquiry.

Scott Shapiro, The Future of the Hart-Dworkin Debate         
Traditionally, the Hart-Dworkin debate has been understood as a dispute about the metaphysical grounds of law: whether legal facts ultimately depend on social facts alone or moral facts as well. In my remarks at the conference, I will advance two theses. First, the Hart-Dworkin debate is far too narrow in that it focuses on the metaphysical grounding of law and not on the epistemological and semantic relationships between legal, social and moral concepts and meanings. General jurisprudence ought to be more capacious and seek to explain how legal thought, talk and reality fit in with the rest of thought, talk and reality. Second, even broadened in this way, the Hart-Dworkin debate no longer captures the main fault lines in contemporary jurisprudence. The new divide centers around whether law is best understood in terms of authority. Positivists see legal events as providing content-independent reasons for action, whereas anti-positivists treat them as giving rise to content-dependent reasons by affecting the background social conditions and thereby changing agents’ moral profiles.

Nicos Stavropoulos, Climbing the Mountain
Some philosophers assert, and others deny, that moral factors play important roles in the fundamental explanation of law. What would it be for moral factors to play such roles? One possibility is that moral factors are sources of legal rights and obligations, separate from and subsidiary to institutional decisions and practices (institutional history). This possibility has been widely discussed over the years. Another possibility has been less discussed: that moral factors explain how it is that institutions change legal rights and obligations. I argue that the second possibility implies (a) that the legal relevance of institutional history is some aspect of its moral relevance; (b) that legal rights and obligations are moral rights and obligations. I next consider the claim (c) that what gives institutional history its legal relevance is certain moral constraints on the use of organized force; (d) that legal rights and obligations are those that bear some specified relation to institutional history, such that it would be justified for institutions coercively to enforce them. Finally I examine whether claims (a) - (d) are in tension with the claim (e) that legal institutions change legal rights and obligations by changing morally relevant circumstances.

Hilary Nye, The One-System View and Dworkin’s Anti-Archimedean Eliminativism
In Justice for Hedgehogs, Dworkin put forward a view about law that he referred to as the ‘one-system view’.1 On that view, law is a branch of morality, and so all legal questions are really moral questions. Dworkin argues that the old ‘two-systems view’ involves begging the question in favor of positivism or nonpositivism; “it poses a question that cannot be answered other than by assuming an answer from the start.”2 In light of this, he says, we should adopt the one-system view. Many of his interlocutors saw this as a radical shift.3 I will argue here that it is better seen as a different way of expressing his longstanding view that legal theory is an inherently normative endeavor. We should read the argument in Justice for Hedgehogs in light of, and as continuous with, his arguments in earlier work.

The one-system view makes sense when we understand it in light of the earlier claims Dworkin makes about the Humean separation of fact and value, as well as in light of his constant insistence on an anti-archimedean approach. Once we interpret it in this way, we can see how what might seem like an odd view—that law is a subset of morality—is best understood as a claim not that law (properly understood) belongs in the moral domain, but rather that the right questions are ones that belong in that domain. Finally, I argue that this one-system approach to legal philosophy, which places law within the moral domain, can be understood as a version of eliminativism, a growing trend in legal philosophy that says that there is no distinctive domain of the legal, or no answerable question about the nature of law.7 I briefly clarify what eliminativism means, and why it represents a productive way of approaching the questions of legal philosophy.

Kevin Toh, Everything in Its Right Place
Throughout his long and distinguished career, Ronald Dworkin assigned the central and even dominating place to first-order moral thinking in both his conception of legal judgments, and his conception of theorizing about the nature of law.  In this paper, I scrutinize and question his several moves, and argue that a package of views that assigns greater roles to other domains of inquiry – including metaphysics, psychology, and semantics – and also envisions a greater degree of division of labor among these several disciplines, is less likely to suffer from theoretical myopia and distortions, and is more likely to yield genuine progress in legal philosophy, not the least by eliciting insights and resources from many participants.   

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