Great debate. The civility and courtesy are a model to follow for everyone. Many of the summaries were magnificent. I still am unclear why Brian thinks the theoretical disagreements are not important simply because they are few in number. Just because they are few doesn't mean that they don't have an outsized impact and thus need to be accounted for. I would have liked to know Brian's explanation for the New Deal courts and how he explains their decisions given that they were radical departures from the past. I would also like to know what Scott thinks. How are the Supreme Court decisions that break from the past and don't seem to follow legal precedent or the letter of the law explained in the positivist's framework? Brian seems to say that it is unimportant. How are they unimportant since those decision have had a massive impact on society? I also would have liked to have had Scott flesh out more his reasoning why he thinks Dworkin is mistaken in his analysis. He said something along the lines that the legal system is designed to decide

I guess this was interesting. Hard to say, really. It all seemed to be one big begging of the question (petitio principii) to me. That is, the positivist or conventionalist just says that any claim that moral reason makes turns out, upon inspection, to be another part of convention. The interesting question is whether this conventionalist claim about moral reason would also be extended to the claims of natural science and mathematics. I don't want to be too harsh, but maybe this wasn't really interesting. I would rather hear the same debate about Paul Feyerabend, I think.

The level of abstraction of this discussion was impressive but also a bit stultifying. Still, let us hope the Bloggingheads keeps up the good work and continues to call on the best and the brightest. I confess I have never understood how law and justice, or law and morality, or law and "natural law" (to use the three traditional oppositions), could be separated into absolutely air-tight compartments--as if the legislators, judges and lawyers of the states whose laws they administer were not also citizens of those states, hence concerned to see that justice be done (et pereat mundus!). And since the laws of every state that has ever existed have fallen short of perfection, what is so paradoxical about the idea that there may be a "law" superior to actually existing law even if it only exists in the minds of a few men and women? Would slavery have been abolished if the matter had been left up to lawyers?

I agree with the above. I found the discussion to be kind of hard to follow but loved that the participants seemed very intelligent. Thank God for diavlogs like these in a nation that came close to electing Sarah Palin as our VP!

Quoting travis68: I also would have liked to have had Scott flesh out more his reasoning why he thinks Dworkin is mistaken in his analysis. He said something along the lines that the legal system is designed to decide moral questions but that in Dworkin's framework, the legal system would need to look to morality. Scott seems to find that wrong. I am probably badly summarizing Scott's viewpoint, which is why I would like a further explanation.

I also would like to see how Scott develops that argument. My understanding from his very brief account was this: He thinks of the law as a tool for figuring out the moral thing to do. But (I gather he argues) the tool won't be any use if it depends upon our already knowing the moral thing to do. If we interpret the law using our pre-legal moral thinking, then our interpretations will be only as valid as that pre-legal moral thinking. This means that we can't turn around and use those legal interpretations to improve our moral thinking beyond its pre-legal state. This, I take it, would defeat the purpose of the law as Scott sees

Heck more philosophy BhTV - philosophers do love talking about their work for free: http://www.nigelwarburton.typepad.com/philosophy_bites/. Also, Leiter and Mickey Kaus should do a diavlog on liberal legalism and what kind of courts Obama might bring.

philosophers do love talking about their work for free: http://www.nigelwarburton.typepad.com/philosophy_bites/.

Cool site! I'm all over that one.

@Tyrell: Thanks for the explanation. What you say makes sense. Any idea on how the positivist framework would handle the New Deal court decisions?

…How are the Supreme Court decisions that break from the past and don't seem to follow legal precedent or the letter of the law explained in the positivist's framework? Brian seems to say that it is unimportant. How are they unimportant since those decision have had a massive impact on society… Isn’t legal positivism an account of law as it is exists, a reconstruction of law’s deepest structures driving all the way back to a rule of recognition, which discriminates between what is accepted into law and what is not, which rule of recognition itself rests ultimately on social consensus? I think that that goes to the distinction of law as such in virtue of its pedigree as opposed to its content and its relation to morality. Therefore, I think, if the SCOTUS makes a precedent shattering decision, or series of decisions, it or they will, presumably, be justified by conventional legal reasoning and hence will fit into a positivist conception of law. After all, for the Supreme Court, as opposed to lower courts, stare decisis is not absolutely binding, and there is a jurisprudence on when it can be departed from

One more thought: Leiter mentioned in passing Richard Posner's book How Judges Think, (which is now on its way to me). It would have been fascinating to hear these two totally admirable law profs discuss Bush v Gore and the opposing views of it taken by Dershowitz and Posner, in their own respective books on the case, but elevate the issues by reference to the terms of their discusson in this diavlog. (See for example: http://www.arts.mcgill.ca/history/fa...tzvsPosner.htm) Itzik Basman

Quoting basman;97880
Isn’t legal positivism an account of law as it is exists, a reconstruction of law’s deepest structures driving all the way back to a rule of recognition, which discriminates between what is accepted into law and what is not, which rule of recognition itself rests ultimately on social consensus? I think that that goes to the distinction of law as such in virtue of its pedigree as opposed to its content and its relation to morality. Therefore, I think, if the SCOTUS makes a precedent shattering decision, or series of decisions, it or they will, presumably, be justified by conventional legal reasoning and hence will fit into a positivist conception of law. After all, for the Supreme Court, as opposed to lower courts, stare decisis is not absolutely binding, and there is a jurisprudence on when it can be departed from to “make new law”. Itzik Basman[/QUOTE:
I am not a lawyer and I have only a superficial acquaintance with the doctrine of legal positivism, but I simply cannot see how a "precedent shattering decision" of the Supreme Court can be understood on the basis of a doctrine that forbids appeal to first principles, or morality, or natural law, or whatever you want to call the fact that citizens have moral reasons for "consenting" to a particular form of government, and therefore (if consensus means anything) the moral right to withhold their consent. If the Constitution ultimately rests on some kind of a "consensus," and if that consensus itself has its foundation in certain natural law doctrines of the 17th and 18th centuries (which were by no means universally accepted at the time), then surely the learned judges of the Supreme Court (well...with some notable exceptions past and present) cannot be legal positivists?

francoamerican: I am a (Canadian) lawyer, but not a philosopher. I have no certainty that I understand legal positivism any better than, or as well as, you do. But insofar as the Supreme Court is not bound by its own precedents, I have no problem with a descriptive account of what the law is accommodating that court *making new law* within the means of its traditional modes of legal reasoning. I was not asserting anything about positivism as against natural law theory; I was, simply enough, trying to answer the question of how positivism might account for the New Deal or any new law making cases—say the much criticized, in these terms, Roe v Wade. But to turn the question back on you and to get to a concrete instance, I’d be interested in an example of when your Supreme Court, even at its most radical turns, ever decided cases, ever made new law—or, in Ackerman’s terms, *amended* your Constitution--by reasoning that did not come within Hart’s notion of a rule of recognition? Is there circularity in what I am saying? For what, ultimately, is the proper account of the scope and constituency of what the rule of recognition allows for? It can be argued

Quoting basman: And having said this, I can see better than I did before the argument for the small number of cases of actual theoretical disagreement--the top of the pyramid, so to speak--as telling for the positivist account and as telling against the Dworkinan account. Itzik Basman

My comment was less directed at you than at legal positivism. Unlike you I lean towards the Dworkinian account of the relationship between law and morality (or justice). Dworkin is a better philosopher and a better historian. Legal positivism is a stale and empty school of thought, suitable only for a certain type of liberal academic who cannot make up his mind about anything. If you agree with Max Weber and Hans Kelsen that the social sciences must be "wertfrei," and with the Viennese logical positivists that natural law is nothing but metaphysics, then I suppose you will agree with Hart and tutti quanti. But if you think as I do that no one can really be "wertfrei" and that modern natural law (Grotius--Hobbes---Locke---Rousseau--Kant) still has something to teach us, then you will side with a more robust conception of the law.

...only for a certain type of liberal academic who cannot make up his mind about anything... Oh my God, you have me found me out, though I am no academic. Let me try, with a few better moments at hand, to work through what you said, including "wertfrei" and "tutti quanti", about which I have a call in to Sarah Palin or anyone else comprising the Republican base, and see what response I can fashion using only English words. Adios for now mon ami, Itzik Basman

Quoting basman: ...only for a certain type of liberal academic who cannot make up his mind about anything...

Oh my God, you have me found me out, though I am no academic.

Let me try, with a few better moments at hand, to work through what you said, including "wertfrei" and "tutti quanti", about which I have a call in to Sarah Palin or anyone else comprising the Republican base, and see what response I can fashion using only English words.

Adios for now mon ami,

Itzik Basman

Say hello to Sarah for me and thank her for the Obama victory. I doubt, however, that she can help you with your English. I did not mean to cast aspersions on the "liberal" of liberal academic. Wertfrei= value-free
tutti quanti= and all those (of that kind)

F.A. Please, if you care to, flesh out, or just hint at, a better account of what law is than legal positivism and give me an example or examples and a reason or two why. After all, positivists don’t say that (a) law’s content is unknowable, insignificant or marginal to a theoretical conception of law, but, rather, that they are not the touchstone for the existence of law. It is simply not the case, to put it most simply and commonly, that an unjust law is not a law. Justice is the cardinal moral principle. So what is the relation between law and justice? I argue that (a) law can be detached from justice and still be law. I sense that you are conflating two different questions: the nature of law; and the nature and demands of justice. Attending analytically to the former does not denude treating of the latter. So wherefore the staleness and emptiness? What would you have the legal positivists say that they are not saying; and why are they typical of a certain kind of liberal academic who cannot make up his or her mind about anything? What would you have the legal positivist or

Basman You raise some good questions, but I fear that nothing I say will strike you as terribly relevant. I am neither a legal scholar nor a lawyer. I am not even a academic philosopher (though I have a PH.D., "doctor of philosophy" in the comical lexicon of academia). To the extent that I understand the debate between legal positivists and EVERYONE ELSE, it seems to me to boil down to a debate between those who are fond of tautologies (the law is the law by virtue of the fact that the law is the law) and those who think that laws exist for some purpose--the common good, justice, natural rights, morality, freedom, peace etc.--and that these purposes (should) determine both the content and the interpretation of the law (You will notice that I am eclectic: Americans who want to outlaw abortion obviously believe that the law has a moral or religious purpose; other Americans believe no less strongly that the purpose of the law is to protect or expand their freedoms, the woman's "right" to her own body etc.). I have no doubt that legal positivists can, if they so wish, seal the law off conceptually and study it en

Quoting Francoamerican: To the extent that I understand the debate between legal positivists and EVERYONE ELSE, it seems to me to boil down to a debate between those who are fond of tautologies (the law is the law by virtue of the fact that the law is the law) and those who think that laws exist for some purpose--the common good, justice, natural rights, morality, freedom, peace etc.--and that these purposes (should) determine both the content and the interpretation of the law

From what I gathered in this diavlogue, this looks like an unfair simplification of the positivist position, at least as Scott portrayed it. But I know almost nothing about legal positivism other than what I saw in this diavlogue. At any rate, the impression I got was that the positivists think of lawyers and judges as being like umpires in a game of, say, baseball. Legislators, on the other hand, are more like the official bodies that write the game's rules (MLB or whatever, I don't really follow professional sports). The analogy carries over on a couple of points. First, although it is tautological to say, "The rules of baseball are the rules of baseball.", it's not tautological to say, "The rules of baseball

Tyrrell McAllister Your analogy is useful, and indeed the idea of the judge as an umpire is close enough to common sense and to the historical development of legal systems (in French the sports umpire is an "arbitre", arbitrator) to commend itself to anyone who thinks about the function of law. One could certainly write a kind of phenomenology of the law in which the action of a judge is described in such terms: a disinterested mediator who intervenes in an interaction between two or more agents who are at odds with one another over some issue (in French, a "litige"=legal conflict or feud) and decides the issue by appealing to the rules of the game, without bringing into his decision any moral considerations, either his own or those of his society. I would question though whether even a phenomenological description can evacuate moral considerations. This is clear from your somewhat bizarre interpretation of the function of rules in a game. When you say that the rules of a sport were written "with a view to entertaining the crowd," aren't you overlooking their primary purpose? Namely, to

Tyrell and Franco: I enjoyed your just before back and forth. I don't think I have anything useful further to say here. And for myself here I willl leave it. Itzik Basman

If I understand the issue correctly, I’d say Shapiro has the better position on theoretical disagreements. When there is theoretical disagreement, that is, when lawyers or judges disagree about foundational legal rules or principles of interpretation, for example, whether “If it is absurd, it’s not law” is true or not, and yet, in the face of the explicit or implicitly-acknowledged foundational disagreement, continue to assert their position, knowing they have no legal basis for it (because it is, by definition, foundational) and knowing the other side does not accept the foundation, hence there is no consensus, as long as they are acting in good faith, they are still engaged in doing law. Weird law, but still law. Only when it's in bad faith will people say, "That's not law, that's . . . politics." Regardless how common this phenomena is--some would say it is rare if only because judges are most often not acting in good faith but think of themselves as overstepping the boundaries of law--I see no reason not to modify positivism to account for it. It need only be a minor qualification to the theory. We should not be surprised that the boundaries of such a complex social