Re: Even Further Beyond the Hart-Dworkin Debate
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 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.