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Old 11-20-2008, 10:35 AM
basman basman is offline
 
Join Date: May 2007
Posts: 648
Default Re: Even Further Beyond the Hart-Dworkin Debate

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 that the question is self answering—since positivism is descriptive. But even if Hart traces his analysis back to a rule of recognition and to social practices before that, is there not an identifiable and coherent discourse comprising the universe of law that is discrete and separable from, say, as you say, “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” ?

I tend to think so.

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

Last edited by basman; 11-20-2008 at 10:53 AM..
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