Justice Scalia and First Things
edlind at dickinson.edu
Thu Mar 9 12:05:22 PST 2006
I don't disagree with anything Mark has written here. All I meant to
say in my previous post was that the morality available to judges when
they "legislate" in the absence of any otherwise applicable legal
sources is not therefore legally unbounded. For an inclusive positivist
such as Hart (but perhaps not for an inclusive positivist such as
Coleman), it remains constrained by the source-based moral principles
instantiated in the Constitution.
Scarberry, Mark wrote:
> Doug probably knows more about Hart than I do, but, if I remember correctly,
> Hart's view is that judges in effect legislate when they decide cases in
> which neither statutes nor clear precedents require a particular result.
> When judges legislate in that way, they decide cases using all tools
> available for making the best decision, including morality broadly speaking.
> The rule of recognition then comes into play. It says that because a duly
> constituted court decided the case in the way that it did, that decision is
> a kind of "law" for later cases under the principles of stare decisis that
> are part of our rule of recognition of what constitutes the law.
> The approach that says you look for the best fit in light of the moral
> principles inherent in other laws is more associated with Ronald Dworkin, in
> my view. Dworkin says that there is only one right way to decide such cases,
> and his hypothetical super-judge, Hercules, could find it. Thus judges lack
> the discretion that Hart said they had.
> But perhaps we are getting too far afield from constitutional law.
> Mark S. Scarberry
> Pepperdine University School of Law
> -----Original Message-----
> From: Douglas Edlin [mailto:edlind at dickinson.edu]
> Sent: Thursday, March 09, 2006 10:15 AM
> To: Scarberry, Mark
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: Justice Scalia and First Things
> Just a quick clarification of a small but important point in Mark's
> excellent post. As an inclusive positivist, Hart would not say that
> morality broadly speaking can be used to determine what the law is.
> Only the moral principles incorporated by reference in a legal source (for
> example, the U.S. Constitution) may be used to determine what the law is
> (according to the rule of recognition).
> I think many lawyers become (or believe they become) positivists in law
> school. They are taught that laws can only be found in certain
> authoritative sources and that these sources are uniquely important to legal
> reasoning. Some of them are also taught, or hear, that the sources thesis
> is a defining characteristic of legal positivism, so they consider
> themselves legal positivists. This still may not resolve the question of
> whether Justice Scalia is a legal positivist or a natural lawyer, however,
> because John Finnis believes that natural lawyers can accept the unique
> importance of authoritative sources for legal reasoning without necessarily
> adopting positivism as a legal philosophy.
Douglas E. Edlin
Department of Political Science
P.O. Box 1773
Carlisle, Pennsylvania 17013
More information about the Conlawprof