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Fuller's Internal Morality of Law
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Positivism and Legal Principles
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The Semantic Sting
5 References and Further Reading
1. The Pedigree Thesis
The pedigree thesis asserts that legal validity is a function of
certain social facts. Borrowing heavily from Jeremy
Bentham, John Austin argues that the principal
distinguishing feature of a legal system is the presence of a
sovereign who is habitually obeyed by most people in the
society, but not in the habit of obeying any determinate
human superior (Austin 1995, p. 166). On Austin's view, a
rule R is legally valid (that is, is a law) in a society S if and
only if R is commanded by the sovereign in S and is backed
up with the threat of a sanction. The severity of the
threatened sanction is irrelevant; any general sovereign
imperative supported by a threat of even the smallest harm is
a law.
Austin's command theory of law is vulnerable to a number of
criticisms. One problem is that there appears to be no
identifiable sovereign in democratic societies. In the United
States, for example, the ultimate political power seems to
belong to the people, who elect lawmakers to represent their
interests. Elected lawmakers have the power to coerce
behavior but are regarded as servants of the people and not
as repositories of sovereign power. The voting population, on
the other hand, seems to be the repository of ultimate
political authority yet lacks the immediate power to coerce
behavior. Thus, in democracies like that of the United States,
the ultimate political authority and the power to coerce
behavior seem to reside in different entities.
A second problem has to do with Austin's view that the
sovereign lawmaking authority is incapable of legal
limitation. On Austin's view, a sovereign cannot be legally
constrained because no person (or body of persons) can
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that the judge decide the relevant issue by making new law.
Each lawyer cites cases favorable to her client's position and
argues that the judge is bound by those cases to decide in her
client's favor. As a practical matter, lawyers rarely, if ever,
concede there are no legal standards governing a case and
ask the judge to legislate in the exercise of discretion.
Nevertheless, the problem with Dworkin's analysis is that it
falsely presupposes an official cannot make new law unless
there are no legal standards constraining the official's
decision. Indeed, lawmaking authorities in legal systems like
the U.S. never have what Dworkin describes as strong
discretion. Even the legislative decisions of Congress, the
highest legislative authority in the nation, are always
constrained by constitutional standards. For example, under
the Fourteenth Amendment, Congress cannot enact a law
that sets one speed limit for male drivers on interstate
highways and another for female drivers.
For his part, Hart concedes that judicial lawmaking authority
is limited in two respects: "not only are the judge's powers
subject to many constraints narrowing his choice from
which a legislature may be quite free, but since the judge's
powers are exercised only to dispose of particular instant
cases he cannot use these to introduce large-scale reforms or
new codes" (Hart 1994, p. 273). What explains the judge's
discretion to make new law in a given case, on Hart's view, is
not the absence of legal standards constraining her decision;
rather it is the absence of legal standards that dictate a
uniquely correct answer to the case. The judge cannot decide
such a case merely by applying existing law because there is
more than one available outcome that coheres with existing
law. In such instances, it is impossible to render a
substantive decision (as opposed to simply referring the
matter back to the legislature) without creating new law.
The discretion thesis is vulnerable to one powerful objection.
Insofar as a judge decides a difficult case by making new law
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for positivism.
There is, however, a second kind of disagreement that
Dworkin believes is inconsistent with positivism. Lawyers
often agree on the facts about a rule's creation, but disagree
on whether those facts are sufficient to endow the rule with
legal authority. Such disagreement is considerably deeper
than empirical disagreement as it concerns the criteria for
legal validity-which, according to positivism, are exhausted
by the rule of recognition. Dworkin calls this second kind of
disagreement theoretical disagreement about the law.
Theoretical disagreement, on Dworkin's view, is inconsistent
with the pedigree thesis because the pedigree thesis explains
the concept of law in terms of shared criteria for creating,
changing and adjudicating law:
If legal argument is mainly or even partly about [the
properties that make a proposition legally valid], then
lawyers cannot all be using the same factual criteria for
deciding when propositions of law are true and false. Their
arguments would be mainly or partly about which criteria
they should use. So the project of the semantic theories, the
project of digging out shared rules from a careful study of
what lawyers say and do, would be doomed to fail (Dworkin
1986, p. 43).
If lawyers disagree about the criteria of legal validity, then
the grounds of legal validity cannot be exhausted by the
shared criteria contained in a rule of recognition. The
semantic sting, then, implies that there must be more to the
concept of legal validity than can be explained by
promulgation in accordance with shared criteria embodied in
a rule of recognition.
The semantic sting resembles one of Dworkin's earlier
criticisms of Hart's pedigree thesis. Hart believes that the
rule of recognition is a social rule and is hence constituted by
the conforming behavior of people who also accept the rule
as a ground for criticizing deviations. Like all social rules,
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