PILPUL(SOPHISTRY) VS TESTIMONY (SCIENCE): THE LEGAL DEBATE OF THE 20th CENTURY (SOON TO BE ASHES)
LAW MUST BE …
1 – Existent, not ad-hoc (not made up at the moment)
2 – Prospective (non-retroactive)
3 – Applicable to all, identically to all. (CD)
4 – Clearly Stated and Comprehensible (in and of itself and in the broader context – internally consistent)
5 – The aspects of the law must be consistent with each other -(externally consistent)
6 – Possible to be obeyed
7 – Possible to enforce (CD)
8 – Constant and Long Lasting.
9 – Promulgated (widely known)
10 – Applied and administered as stated. (rules must be consistent with the acts)(Externally Demonstrated)
Hart, Kelsen, Fuller, Dworkin
HART: AUTHORITARIAN LEGAL POSITIVISM (Pilpul)
His father was a Jewish tailor of German and Polish origin; his mother, of Polish origin, daughter of successful retailers in the clothing trade, handled customer relations and the finances of their firm. Hart was, by his own account, a ‘suppressed homosexual’ Hart married Jenifer Fischer Williams, a civil servant, later a senior civil servant, in the Home Office and, still later, Oxford historian at St Anne’s College (specializing in the history of the police). Jenifer Hart was, for some years in the mid-1930s and fading out totally by decade’s end, a ‘sleeper’ member of the Communist Party of Great Britain.. Jenifer Hart was believed by her contemporaries to have had an affair of long duration with Isaiah Berlin, a close friend of Hart’s. Hart strongly influenced the application of methods in his version of Anglo-American positive law to jurisprudence and the philosophy of law in the English-speaking world. Influenced by John Austin, Ludwig Wittgenstein and Hans Kelsen, Hart brought the tools of analytic, and especially linguistic, philosophy to bear on the central problems of legal theory.Hart’s method combined the careful analysis of twentieth-century analytic philosophy with the jurisprudential tradition of Jeremy Bentham, the great English legal, political, and moral philosopher. Hart’s conception of law had parallels to the Pure Theory of Law formulated by Austrian legal philosopher Hans Kelsen, though Hart rejected several distinctive features of Kelsen’s theory.
Hans Kelsen was an Austrian jurist, legal philosopher and political philosopher. He was the author of the 1920 Austrian Constitution, which to a very large degree is still valid today. Due to the rise of totalitarianism in Austria (and a 1929 constitutional change), Kelsen left for Germany in 1930 but was forced to leave this university post after Hitler’s seizure of power in 1933 because of his Jewish ancestry. While in Vienna, Kelsen met Sigmund Freud and his circle, and wrote on the subject of social psychology and sociology. Kelsen’s contributions to legal theory of the Nuremberg trials was supported and contested by various authors including Dinstein at the Hebrew University in Jerusalem. Kelsen’s neo-Kantian defense of continental legal positivism was supported by H. L. A. Hart in its contrasting form of Anglo-American legal positivism, which was debated in its Anglo-American form by scholars such as Ronald Dworkin and Jeremy Waldron.
Ronald Dworkin was born in 1931 in Providence, Rhode Island, United States, the son of Madeline (Talamo) and David Dworkin. His family was Jewish. Ronald Dworkin as a leading defender of the “compatibility of judicial review with the very principles of democracy.” Baume identified John Hart Ely alongside Dworkin as the foremost defenders of this principle in recent years, while the opposition to this principle of “compatibility” was identified as Bruce Ackerman and Jeremy Waldron. Dworkin has been a long-time advocate of the principle of the moral reading of the Constitution whose lines of support he sees as strongly associated with enhanced versions of judicial review in the federal government. This theory combines two key ideas. Broadly speaking, the first is that human beings are responsible for the life choices they make. The second is that natural endowments of intelligence and talent are morally arbitrary and ought not to affect the distribution of resources in society. Like the rest of Dworkin’s work, his theory of equality is underpinned by the core principle that every person is entitled to equal concern and respect in the design of the structure of society. Dworkin’s theory of equality is said to be one variety of so-called luck egalitarianism, but he rejects this statement. Dworkin, as positivism’s most significant critic, rejects the positivist theory on every conceivable level. Dworkin denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its moral merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of the political organization of a legal system, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects. Dworkin’s metaphor of judge Hercules bears some resemblance to Rawls’ veil of ignorance and Habermas’ ideal speech situation, in that they all suggest idealized methods of arriving at somehow valid normative propositions. The key difference with respect to the former is that Rawls’ veil of ignorance translates almost seamlessly from the purely ideal to the practical. In relation to politics in a democratic society, for example, it is a way of saying that those in power should treat the political opposition consistently with how they would like to be treated when in opposition, because their present position offers no guarantee as to what their position will be in the political landscape of the future (i.e. they will inevitably form the opposition at some point). Dworkin’s Judge Hercules, on the other hand, is a purely idealized construct, that is if such a figure existed, he would arrive at a right answer in every moral dilemma. For a critique along these lines see Lorenzo Zucca’s Constitutional Dilemmas.
Dworkin’s right answer thesis turns on the success of his attack on the skeptical argument that right answers in legal-moral dilemmas cannot be determined. Dworkin’s anti-skeptical argument is essentially that the properties of the skeptic’s claim are analogous to those of substantive moral claims, that is, in asserting that the truth or falsity of “legal-moral” dilemmas cannot be determined, the skeptic makes not a metaphysical claim about the way things are, but a moral claim to the effect that it is, in the face of epistemic uncertainty, unjust to determine legal-moral issues to the detriment of any given individua
Notice the rules this post begins with a list of Fuller’s eight testable rules (i”ve added two to make it ten).
Lon Luvois Fuller was an American legal philosopher, who criticized legal positivism and defended a secular and procedural form of natural law theory. In his widely discussed 1964 book, The Morality of Law, Fuller argues that all systems of law contain an “internal morality” that imposes on individuals a presumptive obligation of obedience. “Fuller was one of the four most important American legal theorists of the last hundred years”.
Fuller denied the core claim of legal positivism that there is no necessary connection between law and morality. According to Fuller, certain moral standards, which he calls “principles of legality,” are built into the very concept of law, so that nothing counts as genuine law that fails to meet these standards. In virtue of these principles of legality, there is an inner morality to the law that imposes a minimal morality of fairness. Some laws, he admits, may be so wicked or unjust that they should not be obeyed. But even in these cases, he argues, there are positive features of the law that impose a defensible moral duty to obey them.
Now the key part:
In a review of The Morality of Law, Hart criticizes Fuller’s work, saying that these principles are merely ones of means-ends efficiency; it is inappropriate, he says, to call them a morality. Employing Fuller’s eight principles of legality, one could just as well have an inner morality of poisoning as an inner morality of law, which Hart claims is absurd. Other critics have challenged Fuller’s claim that there is a prima facie obligation to obey all laws. Some laws, it is claimed, are so unjust and oppressive that there is not even a presumptive moral duty to obey them. In this phase of the argument, the positions of the combatants are transposed. Fuller proposes principles that would easily fit into a positivistic account of law and Hart points out that Fuller’s principles could easily accommodate an immoral morality.
In other words, Hart acknowledges internal amorality and denies self-determination and individual sovereignty.