Notes for PHIL 382, Phiilosophy of Law

1. Law and Morals
Introduction, Justice and Robes, by Ronald Dworkin
1t9. “How should a judge’s moral convictions bear
on his judgments about what the law is?” Note
that RD takes up right way the viewpoint of a
judge. This is different from the sociological
point of view that H.L.A. Hart adopts, for
example. It would also be different from the
view of someone who purports to find a law
written into the fabric of reality, a `natural law’.
Appreciating these different viewpoints is a first
step towards understanding the difference
between Dworkin’s jurisprudence and Hart’s legal
positivism or Fuller’s natural-law theory.

2. Law and Morals
(continued)
5b13. “Like the doctrinal concept, but unlike
the sociological and taxonomical concepts, a
great deal turns on what we take to be the
correct conception of the aspirational
concept.” The doctrinal concept is in question
when we ask what the law is; the
aspirational concept is in question when we
ask what it should be.

3. Law and Morals
(continued)
7t1. “We must attend to these different
ways in which morality might figure in
deciding what the law is.” RD refers to the
constitution’s moral content; statutes that are
abstract, vague, or ambiguous in ways that
require moral determination; and past
judicial decisions that may leave open
different interpretations and therefore
require moral determination.

4. Law and Morality
(continued)
8b3. “How shall we decide which of these
two very different methods of deciding what
the law says is the correct method?” RD is
talking about Mrs. Sorenson’s case, of heart
damage caused by the drug inventum,
produced by various companies; she doesn’t
know which company’s version of the drug
did the damage. Her lawyer says that all the
companies are collectively responsible, so
each should pay a share of her damages. The
drug companies’ lawyers say that none of
them is liable for damages.

5. Law and Morals
(continued)
9t11. “What assumptions and practices must
people share to make it sensible to say that
they share the doctrinal concept so that
they can intelligibly agree and disagree
about its application?” At the `semantic
stage’, RD distinguishes criterial, natural-
kind, and interpretive concepts. He thinks the
doctrinal concept of law is interpretive.

6. Law and Morals
(continued)
13t12. “I believe that any adequate account
of the aspirational concept -- of the values
of legality and the rule of law -- must give
a prominent place to the ideal of political
integrity, that is, to the principle that a state
should try so far as possible to govern
through a coherent set of political principles
whose benefit it extends to all citizens.” At
the `jurisprudential stage’ of offering a `best
justification’ of the practice, RD proposes
that one must study the aspirational concept
of law.

7. Law and Morals
(continued)
14t10. “In my view, the best way to enforce
integrity-based interpretation of legal
practice is by adopting at the doctrinal state
truth conditions that make the question of
what the law is on any issue itself an
interpretive question. A proposition of law is
true, I suggest, if it flows from principles of
personal and political morality that provide
the best interpretation of the other
propositions of law generally treated as true
in contemporary legal practice.”

8. Law and Morals
(continued)
18b4. “Of course that is a political and
therefore a moral question. It is not a
question about how morality figures in
identifying law but a question about when, if
ever, morality requires judges to act
independently of or even contrary to law.” RD
is discussing `the adjudicative stage’.

9. Law and Morals
(continued)
22t9. “But there can be no other, less
instrumental, constraints on what judges can
do, so that when efficiency or some other
community goal is actually better served by
ignoring or rewriting past declarations, that
is what a pragmatist judge should do.” RD is
discussing legal pragmatism. He goes on to
show how a pragmatist might accept his
division of a full legal theory into semantic,
jurisprudential, doctrinal, and adjudicative
stages. Then he takes up the moral radical
position of the “realists” and Posner’s view.

10. Law and Morals
(continued)
29b7. “I distinguish between two very
different ideas: semantic originalism, which
insists that the words in a constitutional text
must be given the meaning that those who
enacted the text intended them to have; and
expectation originalism, which argues that
these words must be given the force in law
that they expected it to have.” RD is
discussing political positivism, spefically
`originalism’.

11. Law and Morals
(continued)
30b2. “Analytic doctrinal positivists disagree
with my views at the most fundamental
stage of legal theory because they insist
that, contrary to my opinion, the doctrinal
concept of law is not an interpretive concept
whose elucidation requires taking a stand on
issues of political morality but a concept of
some other kind whose elucidation is entirely
a descriptive or conceptual project in which
substantive morality has no place.” RD is
talking about Hart’s view.

12. Law and Morals
(continued)
34b4. “We might treat law not as separate
from but as a department of morality....We
might treat legal theory as a special part
of political morality distinguished by a
further refinement of institutional
structures....We would no longer doubt that
justice plays a part in fixing what the law
is.” RD challenges the view that “law” and
“morality” are distinct departments of
thought.