Can't you please provide summary of this reading and any important quotes. Please explain

CRITICS OF LEGAL POSITIVISM 204 CH. 5 afor Power to fill gaps in the law in the way that would make the proposition true er they act. Why then do they all pretend that there is law and that they are H. disag agreeing about what the law is? Because the public believes that there always ; law and that judges should always follow it. On this view lawyers and judges connive do speak to keep the truth from the public so as not to disillusion it or arouse its ignorant correct t agree ab anger. word son this crude answer is unpersuasive, because it is unclear why the pretence should case of a be necessary, or how it could be successful. If lawyers all agree that there is no word or decisive law in hard cases, then why has this view not become part of our popular tests for political culture long ago? Why do losing as well as winning lawyers co-operate in they ag the deception? In any case, there is no evidence, in actual judicial opinions, that proposit when lawyers and judges seem to be disagreeing about the law they are really argumer keeping their fingers crossed. Most of their arguments would be entirely inappro- some co priate as arguments for either the repair or improvement of law; they make sense to read only as arguments about what judges must do in virtue of their responsibility to assump unclear enforce the law as it is. The second version of the claim that theoretical disagreement is a kind of illusion is more sophisticated. It stresses the imp e importance of distinguishing between standard or core uses of the word "law" on the one hand and border-line or I said penumbral uses of that word on the other. Rules for using words (it points out) are proposi not precise and exact; they create penumbral or borderline cases in which people truth speak somewhat differently from one another. So lawyers may use the word "law" simply differently in marginal cases when some but not all of the grounds specified in the most al main rule are satisfied. This explains, according to the present argument, why they of tryin disagree in hard cases. Each uses a slightly different version of the main rule, and imposi the differences become manifest in these special cases. behavi - the According to this more sophisticated defence of positivism lawyers are in no way pretending or trying to deceive the public. They really do believe they disagree to mak about the state of the law, but their disagreement is spurious. From our standpoint, which as critics, it is better to think of their argument as one about repair, about what the of art law should be, because we will understand the legal process better if we use "law" some only to describe what lies within the core of that concept. If we use it, that is, to view o cover only propositions of law true according to the central or main rule for using Pro "law" that everyone accepts, like the propositions of the highway code. So legal They positivism, defended in this different way, has a reforming as well as a descriptive as der political morality. character, but the reform is in the interests of clarity, not any particular vision of develo worki This new story is in one way like the fingers-crossed story, however: it leaves legal wholly unexplained why the legal profession should have acted for so long in the way they the story claims it has. How could they think that important decisions about the use consis of state power should turn on an arbitrary decision to use a word one way rather the ge than another at its borders? The crossed-fingers defence shows judges as well- disagi meaning liars; the borderline case defence shows them as simpletons instead. read, The borderline defense is worse than insulting, moreover, because its diagnosis point, ignores an important distinction between two kinds of disagreements. I mean the inter distinction between borderline cases and testing or pivotal cases. People sometimes ment of vie beforeH. RONALD DWORKIN cannot 207 ts, for which cast. latter appear more ambitious or profound the theory will have an overall sceptical ause some In the heyday of semantic theories legal philosophers worried about whether, nain wicked places really had law. Semantic rules were meant to capture the use of "law can generally, and therefore to cover statements people make not only about their own t of legal system, in which they participate as members of a continuing practice, but ive about very different historical and foreign legal systems as well. It was, for example, cal a common argument against strong "natural law" theories, which claim that a scheme of political organization must satisfy certain minimal standards of justice in on order to count as a legal system at all, that our linguistic practice does not deny the title of law to obviously immoral schemes. We say the Nazis had law though it was very bad law. This fact about our linguistic practice was widely thought to argue for positivism, with its axiom that the existence of law is independent of the value of that law, in preference to any "natural law" theory. If useful theories of law are not semantic theories of this kind, but are instead interpretive of a particular stage of an historically developing practice, then the problem of immoral legal systems appears in a very different light. Interpretive theories are in their nature addressed to a particular legal culture, generally the culture to which their authors belong. Unless these theories are deeply sceptical they will treat that legal system as a flourishing example of law, one that calls for and rewards the interpretive attitude. They will offer to find, in its general structure of their practice, a political justification of its role in licensing political coercion. They should therefore not be supportive, but in some way sceptical, about legal systems that lack features essential to that justification. But it does not follow that a lawyer who finds the best interpretation of Anglo-American law in some feature the Nazi regime wholly lacked must then deny that the Nazis had law. His theory is not a semantic theory about all uses of the word "law", but an interpretive theory about the consequences of taking the interpretive attitude towards his own legal system. He may, with perfect linguistic propriety, insist that the Nazis did have law. We would know what he meant. He would mean that the Nazi system can be recognized as one historical realization of the general practices and institutions from which our own legal culture also developed. It is law, that is, in what we might call the pre-interpretive sense. We need not deny that the Nazi system was an example of law, no matter which interpretation we favour of our own law, because, as I have just said, there is an available sense in which it plainly was. But we 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. For he is not then using "law" in that sense; he is not making a pre-interpretive judgement of that character, but a sceptical inter- pretive judgement that Nazi law lacked features crucial to flourishing legal systems whose rules and procedures do justify coercion. His judgement is now a special kind of political judgement for which his language, if the context makes this clear, is entirely appropriate. We do not understand him fully, of course, unless we know which interpretation of the point of flourishing legal systems he favours. But we catch his drift; we know the direction in which he will argue if he continues. It is perfectly true that the lawyer just mentioned, who says that Nazi law wasCH. 5 H. RONALD DWORKIN 203 truth of any particular proposition of law. It does not follow that lawyers know what ense, "les these are, in the sense of being able to state them in some crisp and ed. 1987). Comprehensive form. For we all follow rules, in using our language, of which we are not fully aware . It e. It falls to legal philosophy, on this account, to explicate the Conceptual rules lawyers have been following unawares, This may be a matter of some difficulty and legal philosophers may well disagree. r aims of Legal positivism, as a school of jurisprudence, argues that the rules lawyers issue of follow unawares stipulate exclusively historical grounds for law, stipulate, that Is, sense of criteria that make the truth of propositions of law turn on whether certain specified social and psychological d deny) logical events have actually occurred. Positivists differ about the ositions exact characterization of these historical criteria. Austin, for example, said that a e equal proposition of law is true, within a particular political society, if it correctly reports dment), the past command of some person or group occupying the position of sovereign in it from that society and he defined a sovereign as someone whose commands are habitually ien to obeyed and who is not himself or itself in the habit of obeying anyone else. ctober Hart rejected Austin's account of legal authority as a brute fact of habitual command and obedience. He said that the true grounds of law lie in the acceptance, rstood by the community as a whole, of a fundamental master rule (he called this "a rule se or of recognition" that assigns to particular people or groups the authority to create law. So propositions of law are true, when they are true, not just in virtue of the aw, in commands of people who happen to enjoy habitual obedience, but more fundamen ways tally in virtue of social conventions which represent the community's acceptance of and a scheme of rules empowering such people or groups to create, by their decisions 2, no from time to time, valid law. hese like All forms of legal positivism must meet a formidable challenge, which we can ould describe most quickly by noticing a distinction between two kinds of disagreement ati- lawyers can have about any particular proposition of law. They might agree about tail what I called the grounds of law - about which non-legal facts can make a particular proposition of law true or false - but disagree about whether those grounds are in fact available in a particular case. They might agree, for example, that the speed limit is 55 if the appropriate legislature has passed such a law, but disagree about whether it has because they have not yet consulted the statute books. Call this an empirical disagreement. Or they might disagree about what really are the grounds of law, about which non-legal facts make a proposition of law true or false. Call that a theoretical disagreement about the law. If the positivist's general solution to the problem of sense is sound, then theoretical disagreement would be impossible or at least very rare. How can lawyers and judges disagree about the grounds of law if they all follow the same rules (whether or not they are able to articulate these rules) for deciding what grounds make a proposition of law true? The positivist's reply, so far as it appears in the literature, is a bold claim. Theoretical disagreement is, in some sense or another, an illusion. There are two versions of this bold claim. The first is the cruder: it holds that when lawyers and judges appear to disagree about whether some proposition of law is true they are actually agreed that it is not because there is in fact no law at all on the question it purports to answer. They are actually debating about whether the proposition should be true, about whether judges should useCRITICS OF LEGAL POSITIVISM 206 CH. 5 Legal philosophers cannot produce useful semantic theories of law. They cannot pose the common ground rules lawyers follow for fixing legal labels onto facts, pot H. there are no such rules. General theories about the circumstances in which propositions of law are true are abstract interpretations. They are abstract because latter app wiley aim to interpret the main point and structure of legal practice, not some cast. particular part or department of it. But for all their abstraction they remain In the interpretations: they try to show legal practice as a whole in the best light it can wicked pl dear. So no firm line divides jurisprudence from adjudication or any other aspect of generally legal practice. Legal philosophers debate about the general part, the interp legal sys foundation any legal argument must have. We may turn that coin over. Any practical erpretive about ve legal argument, no matter how detailed and limited, assumes a general foundation a comm scheme of exactly the kind jurisprudence offers, and when rival foundations compete it order to assumes one of these and rejects others. Jurisprudence is the general part of title of adjudication. very ba An abstract interpretation of legal practice - a "conception" of law - will positivis that lav deploy, as its organizing idea, some account of how the familiar practices and procedures of modern legal systems contribute to the justification of collective If us coercive force. Legislation - the practice of recognizing as law the explicit decisions interpr of special bodies widely assumed to have that power - is a prominent part of our proble theorie legal landscape, and precedent also has a prominent place. So any competent cultur conception must provide some answer to the question why statutes enacted through they particular procedures and past judicial decisions should in themselves provide a and re justification for the later use of state power. No conception need justify every of th feature of the practice it offers to interpret: like any interpretation it can condemn They some of its data as a mistake, as inconsistent with the justification it offers for the syste rest, and perhaps propose that this mistake be abandoned. A conception of law B might try to show, for example, that the general explanation of legislation that provides overall the best justification of that institution requires, contrary to now Ang that prevailing practice, that old and out-of-date statutes should be treated as no longer wor law. Conceptions of law are controversial just because they differ in this way in their inte post-interpretive accounts of legal practice, in their opinions about the right way to pro expand or extend the practice in topics or areas or procedures at present wow controversial. These controversial opinions are the cutting edge of a conception of the law, and that is why hard cases provide the best theatre for their power. de IV. SCEPTICAL THEORIES AND WICKED LAW int There is plainly room, in this general picture of what legal theory should be like, av for sceptical or nihilistic conceptions of law. It must be open to a philosopher of law so to conclude that the practice he sets out to interpret has no decent justification that se fits even most of what is done or demanded in its name, and to recommend that the practice therefore be abandoned or ignored. Some of the more extreme examples of legal realist theories have that flavour, when they are understood as interpretations instead of semantic theories of law, as do some theories that call themselves Marxist. The question whether a particular conception of law is a negative or sceptical conception, however, is sometimes a matter of perspective. An interpre- tation that emphasizes one point or purpose is sceptical about others, and if thepost . abest CRITICS OF LEGAL POSITIVISM CH. 5 208 to law, might have put the very same point in the different way favoured by positivists. He might have said that the Nazis had law but very bad law lacking the d have told us less of what still thin features of a minimally decent system. But that would have although thinks, revealed less of his overall jurisprudenceal posimon ial position, because it would not conside have signaled his view about the consequences of lacking those features. On thi neverth other hand, on some occasions, this curtailment might be an advantage. It might be dismiss unnecessary and even diversionary - productive of argument unnecessary to this present purpose - for him to reveal more. In that case the e the alternative positivist We formulation of his point would be preferable, and there is no reason why we should of our artificially limit our language to make context-sensitive choices of this kind and m questi impossible. an int Context sensitivity will be even more important when the question in play is appro sharper, more specialized, more practical than simply one of general classification repor or critique of a foreign and very different legal system. Suppose the question same somehow arises, for example, how a judge in the foreign system we disapprove - wicke Judge Siegfried, for example - should decide some hard case arising there. The conce focus has changed, because this question requires, not merely a general comparison ques of the foreign system with our own, but an independent interpretation of that rules system in some detail. posi posit Suppose we think that Siegfried's legal system is so wicked that it can never provide any justification at all, even a weak one, for state coercion, so that in every case Siegfried, if he can get away with it, should simply ignore legislation and precedent altogether. Once again we might, but need not, put that opinion in the dramatic language that denies that there is any law in Siegfried's nation at all. That sen choice of words, which relies on the post-interpretive sense of 'law', would enforce the premises that interpretation proposes a justification, so that when no justifica- tion at all is provided by what is law in the pre-interpretive sense, the right to interpretive judgment is the sceptical one that denies the title of law. But we could make the same complex point by using 'law' in the pre-interpretive rather than the (W post-interpretive sense, and then adding that in this case what is law provides no ea warrant for a judicial decision. Whichever language we choose the important point, for us, would be the point of political morality, that nothing just in the fact that this nation has law in the pre-interpretive sense provides any litigant with any right to win what he seeks in its courts. Suppose, however, that on further reflection this is not exactly our view. For we might find something in the history of the legal practices of Siegfried's community that we think justifies some claim of right by some litigant in some case before him, in spite of the general wickedness of the political system, and in spite of the fact that we believe these practices as a whole are so defective that no supportive general interpretation is possible. Suppose, for example, that that case in question is an ordinary contract case that seems to involve no issue of racial or political discrimination or otherwise any piece of tyranny. We might think that the plaintiff in this case has an overall right to win just because the statutes and precedents of his jurisdiction grant him that right. Our opinion might, in another case, be more guarded. Suppose the case does in some way involve discriminatory or otherwise unjust legislation. Suppose the defendant is a Jew and the plaintiff has appealed to some statute denying Jews defences available to Aryans in contract cases. We mightCRITICS OF LEGAL POSITIVISM 202 CH. 5 H. H. RONALD DWORKIN tru Ronald Dworkin, Legal Theory and the Problem of Sense, rul in ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY 9-20 (Ruth Gavison ed. 1987). cor no co THE PROBLEM so I spoke about the general character of jurisprudence; about the proper aims of that discipline and its proper methods. I was concerned with one central issue of jurisprudence: analysing or accounting for what might be called the sense of propositions of law. Lawyers and laymen accept and assert (or disbelieve and deny) propositions about what the law of their nation or state "says". These propositions are sometimes very general (the law forbids states to deny anyone the equal protection of the laws within the meaning of the Fourteenth Amendment), sometimes much less general (the law does not allow murderers to inherit from their victims), and sometimes very concrete (the law requires Mr. O'Brien to compensate Mrs. McLoughlin for the emotional injury she suffered on 19 October 1973). The question of sense asks what these propositions of law should be understood to mean, and in what circumstances they should be taken to be true or false or neither. (Or, if you object to using "true" and "false" about propositions of law, in what circumstances it is proper and improper to assert them.) These must always be central problems of jurisprudence. Since the use of propositions of law and debate over their truth or soundness are pervasive features of legal practice, no competent account of that practice can ignore the issue of what kind of claims these propositions are used to make. We can no more grasp what legal practice is like without some understanding of the sense of propositions of law than we could understand the institution of mathematics with no grasp of the sense of mathematic cal propositions. That is why successful theories of law will always have or entail what might seem a merely linguistic aspect or component. II. THE ORTHODOX ANSWER Orthodox legal theories (I shall mention some examples in a moment) each contain some general thesis about what propositions of law mean and when they are true, although this must sometimes be dug out from beneath the surface. I believe they share a common and mistaken assumption: that lawyers all use roughly the same factual criteria for deciding when propositions of law are true or false, and that a correct statement of the criteria they use constitutes a statement of the sense these propositions have. So a philosopher answers the question of sense by an accurate report of these shared criteria, which must be a neutral, descriptive report quite independent of any moral or political convictions the philosopher might have. This story supposes that lawyers follow common rules - I shall call these semantic rules - which stipulate necessary and sufficient factual conditions for the " From ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY 9-20 (Ruth Gavison ed. 1987). Copyright 1987 Ronald Dworkin. All rights reserved. Reprinted by permission