Ep. 303: H.L.A. Hart on the Foundations of Law (Part One)

0:00 Mark: Foreign. You're listening to the Partially Examined Life, a podcast by. Some guys were at one point set on doing philosophy for a living, but then thought better of it. Our question for episode 303 is something like, what is the relationship between law and morality? Or perhaps if law isn't founded on morality, what is it founded on? And we read HLA Hart's essay Positivism and the Separation of Law and Morals from 1958 and chapters 5, 6 from his 1961 book the Concept of Law. For more information, please visit partiallyexaminedlife.com this is Mark Linsenmayer obeying most of the rules most of the time in Madison, Wisconsin.

0:44 Seth: This is Seth Paskin pondering the rules of recognition in Austin, Texas.

0:49 Wes: This is Wes Alwan, habitually commanding but not habitually obeyed in Cambridge, Massachusetts.

0:55 Dylan: This is Dylan Casey grasping nettles in Madison, Wisconsin.

1:01 Mark: I don't remember the nettles part from

1:02 Dylan: the nettles of the Two Evils.

1:05 Mark: Ah, all right. So we wanted to read some philosophy of law after doing that abortion thing last time. Seth had raised this when we did Critical Race Theory last year, and for whatever reason we didn't do it then. But it seemed about damn time. And looking at the online syllabi, Herbert Lionel Adolphus Hart, born 1907, died 1992, apparently that is who everybody reads, that there are precedents. This guy John Austin we read about who is a utilitarian Jeremy Bentham before him, the much more well known utilitarian. But those guys were almost like 100 years plus before Hart. And yet Hart is like the next big milestone to those guys. And in fact, we read that you don't even have to read Austin because Hart gives such a good explanation of Austin that nobody reads Austin anymore. It's just Hart is the guy and

1:53 Dylan: apparently this is the book.

1:55 Mark: Yes, the Separation of law and Morals. I mean, again, I picked these two things because they were on a syllabus together. It was actually only chapter five. But Positivism and the Separation of law and Morals, you know, is an earlier, more compressed, I don't know, he writes like a lawyer, so nothing is really compressed. There are always sort of a few more pages and sentences that one would really need. But he's also, as one would think from being a lawyer, very, very clear. But then a lot of themes that are in this little essay are unpacked in various chapters of the full book.

2:23 Wes: There's nothing dense about what he's written. Right. He's kind of repetitive. It's not difficult to read, you can see the influence of like Oxford ordinary Langu philosophy. He approaches it in a very conceptual analysis way, like, what does obedience mean? What does a command? You know, and then you try to boil it down and. But it's not as infuriating or boring as typical ordinary language philosophy. It moves into. Yeah, it's not boring at all. You write to him. I don't think any of us had ever really heard of this guy, which is weird. It's understandable why, you know, this would be like the go to textbook for philosophy of law. And also this is something that I was feeling like, especially after this last Supreme Court decision. I'm like, I really don't know enough about this philosophically. So this is like Mark found this and it hits the spot.

3:10 Dylan: I'm really surprised I never heard of him because my undergraduate degree is actually technically Justice, Morality and Constitutional Democracy. That was my major. And having read this, I was like, why didn't we have at least this positivism and the separation of law and morals on there? I mean, it's just like. Would have been obvious.

3:27 Mark: Seth, opening thoughts. Did you enjoy this?

3:30 Seth: Yeah, I did, actually. It's, as Wes said, very readable. The sections we selected made reference to other selections that could have confused the situation. But there was this notion that he's arguing against a particular conception of law. The obedience thing is so easy to grasp that I think it was fair for us to skip the summary of it and the kind of the initial arguments, because at least in chapter five of the second book we read, you know, he summarizes everything previous in a very clear and concise manner. So it's very digestible. There are many distinctions.

In many ways it felt like reading Aristotle. And that can be good or that can be bad if there's a proliferation. So I struggled a little bit with some of the longer sentences, to be honest, but really, really intriguing. I'll be interested to see where the conversation goes and how we relate it back to the stuff we've been talking about recently.

4:26 Mark: So one thing we can just say is the place of this in the history, which is the things that he's arguing against this tradition of legal positivism, which sounds bad because it sounds like logical positivism, like the idea that the meaning of a sentence refers to the evidence that you would have for it. But it has nothing to do with that. It's just that somebody posited the law, which sounds pretty obvious, like, didn't people make up laws? But this is coming after a long Tradition, which we have read a lot of, of natural law theory. So all the social contract stuff that we've read, Locke, Hobbes, et cetera, is to one degree or another, expressing some natural foundation in human relations, in fundamental moral relations for law.

That law is just a natural thing that comes out. And so this doesn't strictly follow from that. But the natural law idea is that the legal law can only truly be law if it is also morally good. Right. Because that's what law is shooting for.

5:22 Seth: Right.

5:22 Mark: You could put that in social contract terms. In terms of like, we've made this deal. If you, as the legislature, pass some law that is not part of this deal, right. The thing that is for the common good, then it can't be legitimate law. You say it is, but I have now grounds sort of based on my natural rights. So whenever you're talking about natural rights, you're talking about a natural law conception. And so this legal positivism is what may seem to us like a much more commonsensical view that, yeah, people made up laws. They were probably, yes, sure, trying to do so for good reason.

Well, maybe you think that laws are, you know, just one class trying to squash down the others or somebody trying to keep on a power. But in any case, you can argue about whether this law or that law is morally good. And the fact that you can argue that shows right there that obviously morality and law are different things. Right? You could use one to measure the other.

6:17 Wes: Just because it's immoral doesn't mean it's not law. There's a way to make sense of what it is to be a law and what it is to be a legal system outside of those moral judgments, which is actually confusing until Hart explicates. You know, the law is something normative. And so how do you make sense of it unless you root it in? Morality is kind of an ultimate ground for the normative. So it seems kind of naturally that law would have some essential, important relationship to morality, which it does. The way Hart describes Bentham and Austin. Even these guys who are pushing back against the conception of natural law will say, yes, the law ought to be moral.

And there are ways in which morality features in a legal system. And yet it still makes sense to talk about the law apart from morality and apart from this conception of natural law, which you could do in a variety of different ways. Right. One day we'll read Aquinas, and I think Aquinas. I think there's a relationship, right, for Aquinas between natural law and divine Law, or you could even ground it in utilitarianism. You could say, hey, natural law flows out of utilitarian considerations. I guess you could do it as Mark was describing, through like social contract theory stuff, or at least it features in those accounts.

So anyway, there are different ways to ground this concept of natural law, but these utilitarians, Bentham and Austin, made a movement away from that. And then Hart is going to try to give a more sophisticated account that is still positivist in essence, and try

7:49 Dylan: to avoid a couple of traps that he felt like Austin and Bentham had fallen into, as well as address the criticisms of it. I confess for myself, I found it hard to take seriously the notion that law wasn't something utterly distinct from morality, or that you would be able to talk about something like, well, this law that was passed by this procedure is illegitimate law. And so we're just going to say it's not really law. It just didn't make any sense to me. Like, what does it mean to say that I wrote down a law and said that this is the law of the land and say that's not really law?

I found two things about what Hart said to make me try to take that more seriously, which was, even though he ultimately rejects it, the discussion at the end of the Positivism and Separation paper about the reaction of the German legal system in the wake of World War II and how they were dealing with the laws of the Nazi regime, which was to basically consider those laws illegitimate laws by saying that they were immoral. So I think that is worth trying to take seriously and understand what it would mean differently. And this is where the Nettles thing comes in.

And we can talk more about it. But Hart's solutions, you just basically need to be straightforward about the fact that you're going to throw that law out retroactively. Retroactively.

9:17 Mark: Usually pretty obnoxious.

9:19 Dylan: Yeah. So you're going to throw the law retroactively and you're just going to be straightforward about that is the lesser of two evils.

9:26 Wes: Just to your point about the way to talk about law is valid, except without talking about natural law. The alternative is someone says, is that law valid or is that really law? And someone might say, well, let's go and check reality and see if it lines up. Let's look at natural law. Is it really law? Well, can we root it in some sort of reality, however you want to describe it, maybe metaphysical or moral? And then the other choice is just what? We'll end it. We'll talk about this Rule of recognition that Hart sets up. But the answer to the validity question has to do with almost like this kind of chain of custody socially. Where did the law come from? Did you do it according to the rules that we set up of how you pass laws? Something like that.

10:10 Dylan: I get it. I just found myself having to work to take seriously the notion that the laws that govern our social interactions, even if there are natural moral laws, just like there are natural physical laws. It took me quite a bit of work to try to take seriously the idea that you would say our laws that have been passed in our social interactions are not laws because they don't line up with those natural laws. It seems to me like we've overloaded the term laws. Right. And we mean something completely different. And that it just to me is like we never meant for the laws that govern our interactions to be.

How could they possibly be the same things as natural laws? It's just not even possible for them to be such things. So I found myself having to work really, really, really hard to even take it seriously. And I got some way down that path. The other piece, besides that discussion about why you would throw laws out, that helped me with that was the notion of a legal system existing, which is related in the notion of a lawless state. When we say something is a lawless state, we would allow that there might be written down laws. But Hart has this very interesting discussion in the chapter six, which we might not get to right now, but about that system needs to be accepted at some level in order for it to be an actual existent legal system.

That's a circumstance where you might have laws that were written down, but you really don't have laws because no one's obeying them. That's an interesting case, right?

11:48 Wes: Yeah. I would try to give one more intuition about why someone might worry about the whole natural rights thing. And it just parallels our worries about morality because we're trying to think about, is there some real ground to normativity in the case of morality? Is it really the case that I ought to do something? Is it really the case that it's wrong to murder innocent people? Or is that all just BS that we make up? Is it just made up or is it real? And I think people's intuitions, they kind of use the same intuition when it comes to law because there are these important relationships between law and morality that make them hard to pull apart.

So when someone says, is that really a law? I think the impulse is to do the same thing that we would be doing. When we try to ask about morality, which is to say, is there some underpinning in reality for it? Hart is going to show us at least a different way to think about what the laws and validity, which gives us a way of thinking about the legal system independent of having to refer ourselves back to this other ground.

12:54 Mark: So where this got really interesting for me though is in his talk about jurisprudence. So that is the place. Since every law under determines its application. That's just the nature of rules. So what a judge is doing is looking at a specific case and says, does this law apply to this? And he gives these nice examples of there will be no vehicles in the park. Well, what counts as a vehicle. And so in figuring out the penumbra, as he says, you know, the cases that are unspecified. So the whole reason why we have judges in the first place is to figure these things out is you do end up, at least arguably that would be the place where morality would come in.

Right. You don't want to interpret a law in such a way that it just is evil. Right. Even if the literal wording, you know, if you're just going to interpret in the most literal, dumbest possible way, like what the ordinary man would think those words mean. If that has an absolutely foul and especially you think probably unforeseen by the law's framers, then a judge is not going to interpret it that way. There's an assumption that the law was written in such a way as to be humane is to be morally good

14:02 Wes: in some way for the common good. And you have to interpret it according to that standard. Yeah, yeah.

14:07 Mark: I mean, so Hart acknowledges this. He still points out that really what you're sort of doing, and he doesn't use this term somehow but like the spirit of the law, even referring to what did the framers of the law mean, which he also points out that legislators, laws are long. Legislators don't read the whole thing. They don't know what is all is in it. They sort of, it's rubber stamped, you know, it's been given to them by some committee of experts or they're lobbyists or some group. So we can't even necessarily, with all the details, talk about what, what their opinions were, that what, you know, what the framer's idea was.

But you could still have something that's an honest, you know, again, looking at Nazi laws like, well, what is the spirit of that? How do we. Do we interpret this to be the most humane way possible? No, according to Hart, because that's not what the Framers had in mind that the purpose of this law is to spread the terror of the Nazi regime. And so for a judge to be true to the spirit of that law would not be to use his innate moral sense, but would be to, you know, figure out what those purposes are and interpret applications so that will further those purposes.

15:10 Wes: This will become important. Just a little teaser. You know, when we do, we'll do some other episodes on, like Dworkin. Right?

15:17 Mark: Ronald Dworkin. Yep.

15:18 Wes: Concept of interpretation will be important, and this will lead directly into. We'll read the most. The recent Supreme Court decision on abortion. Because this whole concept of the penumbra and interpretation is really important to the question of enumerated rights in the Constitution.

15:33 Dylan: Sure.

15:34 Wes: What does it mean to say we have an enumerated rights or, you know, say a Fourth Amendment right? The way it's spelled out there. What can we derive from that? What's implied in that? So, anyway, this will all be useful later on when we get back to the legal aspect of the abortion debate.

15:49 Mark: So I think we have most of the concepts at least thrown out there. Should we just go to this essay first? Positivism and the separation of law and morals. So he's trying to defend positivism as not being this dumb thing that some critics say, you know, that it actually sounds like we will use deductive arguments. We will have the laws. You know, what the judge does is come along and looks at that general case and applies it deductively to the individual circumstance. And he says, maybe that's how some positivists think. That's not how my favorite positivists think. That's not how I think.

16:21 Dylan: He's defending positivist law against pejorative interpretations.

16:25 Seth: Mm.

16:26 Wes: And he's gonna vastly improve on Austin, right?

16:28 Dylan: Oh, yeah. And Bentham.

16:30 Wes: Yeah. So he's largely concerned with Austin because he wants to elaborate on this. Bentham had a different way of doing this. But Austin is thinking of law in terms of what Hart calls an imperative thinking theory of law, where law is essentially a command. Actually, I guess what Austin does with that is to break down what the concept of a command is, where you tell someone what you want, and then you say either going to get hurt if you don't get it. You know, so if you're a robber, give me all your money. Your money or your life. And then that coercive model becomes a legal model if you just do two things to it, which is to make it general.

So it's not just that you're Going in and asking a particular person for your money. It applies to say, all the people in the country or whatever. And then the second point there is that you get habitual obedience from others. The one who's doing the commanding is sovereign. They're obeyed in general by the people, whether they're a person or a body of people or whatever. But they don't obey anyone else. So the buck stops with them. They issue their command. People habitually pay. There are penalties, there are punishments. And that's the model that Austin is going to show.

Doesn't work for various reasons and needs to be improved upon.

17:49 Mark: Yeah, that sounds a lot like Hobbes. And Hobbes is identified both in the natural law tradition because he does talk about man's natural rights and things. But as far as specifically the law goes, he's maybe the first positivist that he's trying to provide a hard nosed enlightenment scientific account of law as opposed to all those natural law superstitious religious people. The law is just whatever the sovereign says it is.

18:17 Wes: It is a little like logical positivism because there's a kind of a behaviorist element to this. And I'm going to recommend now this thing that you found Mark, online, Jeffrey Kaplan. If you search YouTube for Kaplan Hart, you'll find his brief lectures on this. And it's very clarifying. And he goes over chapters two through six of the Concept of Law Book. But Kaplan makes that comment. But this kind of sounds behavioristic. So if you want to be really scientific about the law, you want to look at it scientifically. So you want to really try to be able to describe things in terms of people's behavior.

Right. These regularities, people issuing commands and then people obeying and not have to talk about it in terms of these more subjective states of mind, I guess is the way you might want to put it. And I think that's the thing that Hart is going to essentially end up reversing. He's going to say, well, actually we can't really get at the law without. This is the first step. But thinking about what he calls an internal point of view. But maybe I've kind of jumped to the book now. I guess we should stick to the paper here again.

19:20 Mark: Yeah. Chapter five in the book is expanding on this part of this essay. So it is entirely natural that we're sort of dealing with them in one and the same point. The internal point of view. Right. What's wrong with the command theory is that it can't account for how the people who feel Themselves bound by the law. Actually see the law. Right. It's not merely that they obey, and there must be a sanction, and the sanction is what makes them obey. Because that's not how a lot of laws, most of the laws work. Should I do this? Should I not do this?

And Hart brings up custom a lot because custom is kind of the thing, you know, this is jumping ahead a little bit. The thing out of which law develops, which it fades back into that, you know, all these, like, stringent religious laws about you can only eat this on this day and you can't wear this kind of clothes. Those started, says Hart, as just customs. And then over time, people were like, not only is this an effective way, this is the way. This is the way we do it. And if you don't do it this way, you'll be punished.

20:22 Wes: He draws this distinction between being obliged and obligated. Right. This is like part of the whole English language, ordinary language approach. But so the psychology of this is very different. Right. Someone says, hand over your money. You're obliged to do it if you don't want to get hurt. But you don't say, well, it's my duty to.

20:38 Dylan: I'm not obligated to do so.

20:40 Wes: Yeah, they're very different states of mind and motivations. So this Austinian theory doesn't really capture, I'm going to say, the psychology of this, but I'll have to think about whether that's right later. But Mark was talking about social customs. People internalize this stuff and they feel like they ought to do it for the most part. There's some people who don't. Right. And those people may. The criminals may just care about getting caught or whatever, but most of us do feel like it's a duty or an. An obligation to do things. And it's not simply that we're wandering around trying to figure out where the limits are because we are worried about getting punished.

21:16 Dylan: But yeah, I mean, doesn't it depend. Depends on the law, Right? Yeah, we do exactly that with regard to speed limits. Right?

21:24 Wes: Yeah.

21:24 Dylan: You know, we do worry about, well, am I going to get caught or not? I mean, there are people. I suppose I'm not going to drive over the speed limit, because that's what the law says. But most people don't do that. And I'd say that the way in which we do this depends a lot on the laws.

21:39 Mark: Hart makes this distinction later. This is like in chapter six of the book between. It's not necessarily that all the people think of the Law from this internal point of view, that it is binding on them. But as long as the officials who are enforcing the law think of it like that, then you still have a functioning legal system. Like, that's what's required. But clearly you'd want for the simplest kind of society. Right. If this law has just been brought up from a custom, the custom is only accustomed because the average person thinks that this is morally binding upon them, or I shouldn't use that word, but it is. They're obliged.

22:14 Dylan: So the difference would be is that I accede to the fact that the law is that speed limit is 70 miles an hour and that I am obliged to drive less than 70 miles an hour. And the way in which I manifest that is that I submit to the punishment of having gotten caught.

22:35 Wes: Dylan, though, that's not really a law because it's a bad boss. Thinking about more obvious examples like murder and theft and things which Hart says in any society, even if there's no formalized law. Right. There's customs, taboos against this type of thing. And then. So how does it become to be a regularity beyond fear of punishment? He doesn't really talk a lot about that, but he does use the word shame and I think guilt at some point.

23:07 Dylan: I was just going to point to etiquette, because etiquette, to me, is the perfect example of this kind of homegrown, organically driven rulemaking that we make in life. That is the way in which this will happen. In fact, it happens right now. So we can recognize it is that those are rules of engagement that aren't written down, for which there are punishments, for which there are people feeling obliged to do and behave in certain ways. And there are costs associated with not all of which is before you have laws written down or before you have authorities enforcing them. And in fact, even in the case of etiquette, there can be people enforcing them even if they aren't written down. That's what Mill called social coercion.

23:52 Wes: And it comes down to. So. So Hart actually does talk about this. Comes down to, you know, it could be as much as someone like, giving you the side eye. Right?

24:00 Dylan: Yeah.

24:00 Wes: How do all these things ultimately get forced? There are a lot of social mechanisms that lead to rules getting established. It could be pretty minor disapproval, comparatively. Right. But for most of us, even that minor disapproval has, like, a regulating effect. And we'll just say, you know, okay, I'll comply. Etiquette is in contrast to. Because etiquette doesn't create an obligation either. So it's A rule. So rules can be non obligatory. So all obligations imply rules, he'll say. But some rules are non obligatory in etiquette. As an example, I don't say I have a duty to take my hat off when I come in the room. But it shows you broadly how these types of rules, whether it's etiquette or whether it's more serious norms, can get instilled in us.

24:49 Mark: I wonder if we should just say a normative reason to rather than obliged. Because contrasting obliged and obligation, my God, that's just a recipe for confusion. That is intolerable. But if you say I have a normative reason to take my hat off, that is so technical sounding that it could not possibly have bad.

25:11 Wes: It's not a duty, it's not a moral legal obligation.

25:13 Mark: It's just there is a norm, people take their hats off.

25:16 Wes: Yeah. So you don't need to centrally organize system of punishments. You know, you can have what Hart calls it is this diffused hostile or critical reactions. Right. Shame, remorse, guilt, blah blah, blah. And then it's at the point where we start to systematize that, that we could start to talk about law.

25:36 Mark: I don't know if the fact that he's British and they're for the Brits in particular, you know, etiquette I would imagine at this time more so a stronger normative force than perhaps we would consider in today's America.

25:48 Wes: He's using it as a contrast. He wants to say there are some non obligatory rules.

25:53 Mark: But it's hard to just go through the essay because he starts with this whole like history of utilitarianism, like we've kind of given enough of that something that he brings up here. Again, this is made much more of a deal of in chapter five. But you know, another thing that's wrong with the command theory is that there are lots of laws that are not prohibitions. They give powers, right? Giving you the power to write a will or giving you the duty appointing you an official of any sort. It's hard to then see what. So I, I have to write a will or if I write a will the wrong way, then I'm going to be in trouble with the law.

Like that might be true. I guess you're committing fraud or something like that if you write a will the wrong way. But it seems like a lot of these regulations are grant powers. And it's hard to think of that as in any way analogous to somebody holding a gun to the country and saying create wills according to this form 7B and the 12 paragraphs under that that I've specified on the website, or I'll shoot.

26:50 Wes: Well, you could try to do it as a hypothetical. You could say, if you're going to create a will, this is the way you have to do it. There are more clever ways to try and make this seem like a command.

26:57 Dylan: It seems like torturing it though.

27:00 Wes: So, yeah, I think Hart does that in the earlier chapters of the book that we didn't read. So I'm not sure exactly how he addresses it, but he thinks he's. And I think most people think he's shown that you can't really try to do that, make that reduction civil law, wills and contracts and things like that to a form of command theory.

27:17 Dylan: What it seems to reveal is that in trying to give an underpinning of how law is working, the command theory of law just isn't a complete enough account of how law is actually working in our society. Which this is sort of what Hart is saying. Command theory of law explains some pieces of it, especially certain aspects of political association and the big laws we care about that are associated with morality, but it doesn't account for the full structure of our legal system. And the example that Mark just gave is one of them. And so it's not a sufficient philosophical account of how law is working.

27:56 Mark: So section 3 of the paper, which starts on PDF, page 15, page 606 of the text, the Harvard Law Review text, is where he gets to the

28:05 Dylan: jurisprudence stuff and the penumbra.

28:08 Mark: Yes, you know, you've said a couple times, Wes, about, you know, you should consult reality. And he. I don't know if that was related to what he's calling the realists here. This came up in our Critical Race theory discussion that the main influences of our author Derrick Bell, was these realists. It's not well explained here. I don't know if either of you has a good memory here. I think the context here is the loosely named realists of the 1930s perhaps too naively accepted the conceptual framework of the natural sciences as adequate for the characterization of law and the analysis of rule guided action, of which a living system of law at least partially consists.

But they open men's eyes to what actually goes on when courts decide cases. And the contrast they drew between the actual facts of judicial decision and the traditional terminology for describing it as if it were a wholly logical operation was usually illuminating. For in spite of some of the exaggeration, the realists made us acutely conscious. One cardinal feature of human language and human thought, emphasis on which is vital not only for the understanding of law, but okay, so that's where he gets us to this example with the penumbra, you know, about vehicles being prohibited in a public park.

But I think what I recall from the realists were basically pointing out that, you know, you think they're being critical here. We could have called positivists, you positivist judges think that you're just using deduction like we were saying. You're just objectively, I'm just calling the balls and strikes.

29:28 Wes: Well, here's a rule, it's clear what follows under it and what doesn't in any given case. And it's all mechanical.

29:34 Mark: And the realists are more cynically saying no, it's actually whatever the judge's biases push them to say at that point. And it's going to reflect the actual beliefs in the society. So no matter how high minded a law might be passed, you know, this is the critical race theory case. It was, you could pass all these laws that say equal treatment for all. But the way that judges are actually going to apply them, the way that individuals are going to apply them is going to just be in line with the actual mores of the society. That's a way of saying if you pass a law that is out of step with those mores, it's not a real law in that it's not actually going to be efficacious, it's not going to be interpreted in such a way to actually implement whatever high minded original intentions they might have had.

30:17 Seth: I don't think what you're describing, Mark, is exactly what he's pointing at in this section. This resonated with me. The idea here is that you write a law to proscribe or prescribe some kind of action, right? So the example he gives is a legal rule forbids you to take a vehicle into a public park. Clearly this forbids an automobile. But what about bicycles, roller skates, toy automobiles? What about airplanes? And so the intent of the example is to say, well you would say to yourself, obviously not an airplane. But then you have to ask yourself why obviously not an airplane.

And what comes up is that there's a social context and there's a set of meanings associated with the term vehicle that are understood and that much of what happens in law is for jurists or judges or whatever to identify whether a thing is classified as, in this case, a vehicle or not. So the function here is really about bringing a particular under a general.

31:16 Dylan: Yeah, there's a couple great quotes here. He says there must be a core of settled meaning, but there will be as well a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out. Fact situations do not await us neatly labeled, creased, and folded, nor is their legal classification written on them to be simply read off by the judge. Instead, in applying legal rules, someone must take the responsibility of deciding that words do or do not cover some case in hand with all the practical consequences involved in this decision.

I can see how you get to the way you were characterizing Bell's argument, Mark, but I think that the insight here is sort of the general activity that this is part of what we have to do all the time. And judges in particular, with respect to laws, is judging where the core deductive instances are. And then what's the penumbra of meaning that we're going to associate with it. And then maybe then that's where we get this notion of the context that we're going to have to apply and how that context gets applied.

32:21 Mark: Well, yeah, so the legal realist is saying that judges legislate. They don't think they're legislating, but they absolutely legislate. Hart is saying that's exaggerated because they're only legislating in the penumbra, that if they are completely ignoring the text of the law and the clear settled core, as you were saying, that would be a problem. Maybe they do that sometimes, but they're not being good judges if they're doing that. But they are being good judges if that's what they're for, to settle the penumbra.

32:48 Wes: This is one of those examples of the intersection of law and morals. Right. It seems true to say, he says, that the criterion which makes a decision sound in such cases is some concept of what the law ought to be. Yep.

33:00 Dylan: And that seems right. I mean, I don't think Hart's denying that. There's a quote here on 608 that I really, really liked. He says, in this area, men cannot live by deduction alone.

33:10 Wes: Yeah, I was going to read that. That's great.

33:12 Dylan: And it follows that if legal arguments and legal decisions of penumbral questions are to be rational, their rationality must lie in something other than a logical relation to premises. So that point, I think, is super powerful, that we can be rational, but that doesn't mean the same thing as being deductive. It's a good reminder.

33:33 Wes: And then he's going to go on to defend Austin, right, from charges of formalism of this kind. Like it's all Just deduction, which we

33:42 Mark: don't really care about the reputation of Austin so much, but he's going to

33:46 Dylan: throw Blackstone under the bus.

33:48 Mark: Blackstone, I think, is one of those natural law guys. Yeah. So that's interesting that Blackstone is childish fiction, as Austin termed it. The judges only find never make law. That it is actually within the things Austin realized that judges do legislate to some extent. They're not just finding the laws. Is finding the laws comparable to. I'm just calling the balls and strikes, or is that just sort of at a different level of magnification?

34:15 Wes: I think it's clear in baseball, right. Even those most borderline cases are the hard ones. But it's not conceptual. It's like spatiotemporal. Right. So. But in this case, it's like, you know, logic is silent. Looking at 6, 10, logic is silent on how to classify particulars. And this is the heart of a judicial system. These conceptual classification problems are, you know, like the ball strike example, like, even. It's a more modest problem.

34:41 Dylan: Also, just before what you read, Wes, he says, logic does not prescribe interpretation of terms. It dictates neither the stupid nor the intelligent interpretation of any expression. Logic only tells you, hypothetically, that if you give a certain term, a certain interpretation, then a certain conclusion follows. This is like the whole discussion that you have when you're doing syllogisms. Right. The syllogisms work, and you can do all your logic puzzles about it. But what you decide that are the terms themselves is often the more interesting question.

35:16 Wes: I want to do a little brief aside here. As I mentioned before, I've done all this writing about the whole free speech problem and mill and social coercion and all this stuff. And I ended up at the point where I thought, you know, a lot of accusations about censorship are really. And people don't realize that they're really saying, you're misinterpreting me. Yes, because there are things which are beyond the bounds of acceptable discourse. And the real problem within discourse, when it comes to freedom of speech, is the interpretive frames that people are applying to things and whether how promiscuous they're being in interpretations, whether they're making intelligent interpretations, are giving people the benefit of the doubt, and all that stuff. So that's just a brief aside. This stuff comes up not just in legal thinking, but in how you think about discourse in general.

36:02 Mark: Is it interpreting in terms of the meaning of the words? I'm thinking of the Alex Jones things. People who are being tried for libel and slander and things based on this kind of stuff. You could say they're giving their interpretations of facts. And you could sort of say, well, that's different. Or you could say, you're misinterpreting. I'm Alex Jones. You're misinterpreting what language game I'm playing. I'm just talking here. I'm just asking questions. That's the game that I'm playing. I'm not yelling fire in a crowded theater. Essentially, I'm not performing a political act. I'm merely expressing an opinion. So those are two different senses of interpretation. Facts to interpretations. And then a thing that I have said to. How I intend the audience to take it, what I intend them to do about it. Do I want them to call and harass people that I say are lying?

36:51 Dylan: But I think that this is exactly the point. Take the yelling fire in a crowded theater. Right to Wes's point about lots of censorship questions and regulation of speech come down to understanding the claims of misinterpretation. And so somebody says, I was just joking when they yelled fire in the crowded theater. And the reason we say that that's not allowed. That's outside the bounds of legitimate speech that should be allowed to be freely said is because the context there is such that a reasonable person would interpret that kind of speech as being an actual warning. And that's perfectly reasonable that someone would do that. And your claim that's just a joke or you shouldn't have taken me seriously. You should have looked around and see if you saw a fire or whatever it was. That's baloney. I think the same kind of thing applies in the Alex Jones case.

37:39 Mark: You're making me now think of like we were watching Frankenstein and we were all engaged in Frankenstein cosplay. And so I yell fire bad. And everybody ran out of the theater. And clearly I was, you know.

37:50 Wes: Yes, that's a. That's actually a really good example.

37:54 Mark: What if the people in the on screen yell fire and you're in a crowded theater? You could be confused.

37:59 Dylan: Fortunately, that's not part of Rocky Horror Picture Show.

38:01 Wes: Right. But it is the feature of people getting offended to say that even indirect mention. Right. I want to quote Mark Twain, the passage where there's the N word. I can't do that because indirect mention is now supposed to be. The use mention distinction is undermined. It's not the same thing to use us to mention a slur mention the character in the book's use of a slur as it is, to use a slur, but those sorts of things break down. But that's just a very minor example.

38:28 Mark: He's concerned in this whole thing and he keeps going back to. You might have thought that this point I'm making mixes morality and the law, but they certainly aren't conceptually the same thing.

38:40 Dylan: Yeah.

38:40 Mark: And it just seems like such an obvious point that there's a reason we started this time talking about natural law theory and to get that background out there, because that is the edifice that he is arguing against. Whereas just reading this, you know, before, I then went back and sort of saw that what the context was, it just seemed like a straw man. Who are these people that think that law, and only the Nazi example, the current thing, he mentions that, you know, one thinker in particular who was saying, oh, I was just following orders. Like, why that's a bogus thing, because you should know that if somebody gives you terrible, terrible orders, even if you could trace back, well, he's my superior in this, and he was appointed by the government official who was appointed by Hitler, and Hitler was elected by the people.

And the election laws were agreed on beforehand by the people. Like, it seems like the chain is valid there. But if the result is so horrible, you should assume, as somebody in a military uniform or a citizen who is being ordered to do something by the police or whatever it is, that something must have gone horribly wrong if it goes so against morality.

39:49 Wes: The idea here is that to ask whether something is a law is tightly related to asking whether the law is valid. So we get a normative idea introduced and then it's unclear where the norm comes from. I never thought about this. I'd never thought about the whole rule of recognition thing that hard is going to do as the ground for the validity of law. So it seems to me understandable that when people are trying to think about, well, how is the law grounded, whereas the validity, the first instinct will be to try to ground it in some form of reality and not treat it merely as social custom. But once you're used, as we are, to thinking of it in purely customary or even constructivist terms, you can think of validity in terms of these little meta rules, the compliance with these little meta rules that Hart is going to give us.

40:37 Dylan: The secondary rules.

40:39 Seth: Yeah, the way he characterizes it in this paper, as opposed to in the book, he doesn't actually talk about validity because in the book he's clear that that imports a bunch of potentially confusing things. The issue is, it's clearly a law that is obviously against what, some set of social norms or moral precepts or whatever is still a law if it's created and enacted and written in the right way. The question is, should it be obeyed? That's the moral question. And that's a different question, I think, than is the law valid?

41:13 Dylan: So that's the way he gets out of it. I mean, that's the way he says you should resolve this distinction between morality and law, is that you would say, well, it's a law, but the question of obeying is a completely different question. Whereas the Nazi case, Gustav Radbruch, and I think there's a couple other ones that you say that's not really law because it violates something like natural law. You supervene on top of the law and say that law, not only is it not worth obeying, it's not even really a law. It has no force or something like that.

41:49 Wes: People want to come back and say the Nazis were doing something illegal. It doesn't matter what they put down on paper.

41:54 Dylan: Yes.

41:54 Wes: And then the solution is to say, well, we put it down on paper, even though it happened in the past, and we're going to judge you by what we just put down on paper. And now we can refer, of course, to international law. And there's more of an apparatus for that type of stuff.

42:08 Dylan: Yeah, that gets back to. That's one way of having the rule of recognition solve that problem.

42:13 Wes: Right.

42:14 Dylan: Because you pull it out another level.

42:16 Mark: That seems like a good way to end part one. There's plenty more to cover in parts two and three, which we'll do on a different day. Supporters, you'll find part two right there in your feed, and you'll get part three next week or so. See ya.