Ep. 304: Dworkin v. Hart on Legal Judgment (Part One)

0:00 Mark: Foreign. You're listening to the Partially Examined Life, a podcast by some guys who at one point set out to do philosophy for a living, but then thought better of it. Our question for episode 304 is something like how do judges make decisions in hard cases? And we read Ronald Dworkin's article the Model of rules from 1967, and a secondary source, the Hart Dworkin Debate, A Short Guide for the Perplexed, by Scott J. Shapiro from 2007. For more information, please visit partiallyexaminedlife.com this is Mark Linsenmayer, exhausted by the linguistic limits of some particular phrase in Madison, Wisconsin.

0:39 Seth: This is Seth Paskin acting on principle and not policy in Austin, Texas.

0:44 Wes: This is Wes Alwan, not controlled by any established rule, but exercising discretion in Cambridge, Massachusetts.

0:51 Dylan: This is Dylan Casey maintaining discretion in Madison, Wisconsin.

0:55 Mark: So this is on the Hart Dworkin debate. I was inspired to do this. We watched some of these Jeffrey Kaplan videos on YouTube explaining Hart's concept of law for our last episode, and his next one in the series was on the Hart Dworkin debate. And we had already planned to read some Dworkin for this upcoming episode on unenumerated rights, where we will consider the most recent abortion ruling. So this seemed like a great piece of connecting tissue. But it's complicated in that there were several articles between Dworkin and not so much Hart, but Hart's followers back and forth from for many years, starting with this one that we read the model of rules, 1967, concluding with this book from the 80s law's empire that I didn't want to pull out, but I happened to, in Googling around, find this Shapiro article which sums up everything.

So that was nice. I also looked at a second pass at this from 1977 by Dworkin from his book Taking Rights Seriously. Chapter four is called Hard Cases. It's just a very long chapter. Also in the concept of law that we read last time by Hart. The chapter after we stopped Chapter 7 is called formalism and Rule Skepticism, which seems to be the one that is most directly about judicial decision making. So I looked at that as well, but we really already covered most of the concepts in that in our last episode in one way or another. So we have some optional stuff that we could bring in some points from if we want.

But I think the key thing is this first Dworkin article with some additional information from Shapiro and actually following up on Shapiro, there was another article that I looked at this morning that Dylan said he liked by the old professor by some of us. Brian Leiter explaining theoretical disagreement from 2009, which is a direct response to the Shapiro argument, saying that, yeah, Dworkin was really confused.

2:43 Wes: We should say that the Shapiro summarizes the early Dworkin critique of positivism than a later critique, which I think is in Hard cases. Right. What he calls Model of the rules 1 and model of the rules 2.

2:57 Mark: Well, there is a separate article called Model of Rules two, which I downloaded but did not have us look at. Hard cases just happen to be the one that Kaplan in his video had referred to. And so that's why I pulled out. It has some good case law examples.

3:12 Wes: I only read the first few pages of that. Does that spell out the second critique, or is it just adding to the first critique?

3:19 Mark: No, it's actually still more about the first critique. It's just that Hard Cases gives more of what Dworkin's positive account.

3:25 Wes: I'm glad we read the Shapiro, because I think the conclusion by many, including Leiter, is that that first critique, that earlier critique, has been handled, which we'll get into the details, obviously, and that it's been responded to and put to bed. But Shapiro gets us back into more powerful second critique, which opens things back up.

3:46 Dylan: Am I wrong to see Dworkin as making a kind of a fundamentalist critique of Hart or accusing Hart that effectively your position descends into a kind of relativism that's unacceptable, and that you have to have solutions for lawmaking that have a fundamental standard, sort of a parallel to a very common tension in moral philosophy or philosophy in general, or a

4:13 Mark: critique of positivism, that positivism is generally taken to be a. In every scenario in which that term is brought up to be sidestepping important issues. Right. If you say that positivism in science is basically verificationism, in other words, every sentence about the world either can literally be affirmed by some experience or other, you know, some test, or it's just meaningless. And that, of course, sidesteps a whole. You know, we've had great critiques of that. But legal positivism, as we described last time, is supposed to be less objectionable than that. But still saying that the law is not based on morality, that the law is just a thing that people came up with. So Dworkin is arguing against that. If you want to say it's a fundamentalist thing, you'd have to say more. Why that?

4:56 Dylan: Well, I just mean fundamentalist in the sense of the critique that you'd make of something like positivism is lacking the proper Grounding that would allow us to make decisions the way in which you would criticize relativism or something like that.

5:10 Wes: I mean, you could say that one of the critiques, although it's not put this way, is that there's some trouble going from fact to value. Right? I mean, Hart tries to get at some of this with the concept of acceptance and. But the positivist wants to ground the law not in morality, but in social facts and what people are doing. So you could have systems of law that are completely immoral. Nazi. Right. But they have valid laws because they can appeal to some master rule, a rule of recognition that validates laws or invalidates them. So part of this has to do with morality, but part of it also is a more general critique about whether or not principles which are not established statutes, which haven't been validated by the master rule of recognition in the sense they haven't necessarily passed the legislature, been passed some other form of test, whether those principles are quote, unquote, within the law or outside of the law, and whether when a judge applies those principles, are they reaching beyond the law by virtue of their discretion and what Dworkin calls the strong sense of discretion?

Does a judge reach beyond the law to principles because of their morality or even, say, the whim of the judge? Or is the judge staying within the law in the sense that despite the fact that they're not validated by the rule of recognition, they are still in some sense part of the law? And what a judge is doing, they may be exercising discretion in a weak sense by applying the judgment and figuring out what falls under certain concepts and things like that, but they're not doing something extra legal there. They are kind of bound. That's the idea that we want to get at, is that even when judges are doing weak discretion, they're still bound by those principles.

And they're bound by them not just because the principles are precedents. Some principles just recommend themselves. I guess, Dylan, that kind of gets at your point about this, that it does ultimately seem to open the door into fundamental moral considerations, like what is really right and wrong, what is really just and unjust.

7:06 Dylan: And.

7:06 Wes: And it seems like the positivists want to keep that aperture closed. And the light always seems to leak in. Seems like you can't fully close that off.

7:16 Dylan: And you're right. The way that I was maybe oversimplifying, Dworkin was basically saying, isn't he just in a straightforward way saying that law ought to be grounded effectively in something like what is actually right? A kind of moral argument. And my understanding is that's the way his original critique was taken, very straightforwardly, but he also revised his critique later on. And what you just said, Wes, makes me think that maybe in the stronger sense, Dworkin would be saying, effectively, Hart, your goal in your critique of Austin and your refinement of positivism under Austin was to make it actually more successful in account of both what law does and how it successfully manages to articulate what legal means as a theory of law.

But in a stronger sense, Dworkin would be saying, well, you failed at this Hart because you haven't accounted for how hard cases are taken care of. And so therefore you have failed in a proper philosophical understanding of law. And if you did, it would have a satisfactory answer for that. And that also explains why someone like Shapiro or even Leiter focus on this as having a better defense of positivism against hard cases and just say, basically, look, there's a response that Dworkin just willfully ignores.

8:33 Mark: I want to hear Seth's take on the model of rules, because you were saying in Slack how he just goes point by point and refutes Hart, which Shapiro is totally unconvinced by, but you seemed sympathetic to that.

8:44 Seth: I guess my question is he talks about social facts versus moral facts. And what convinced me, or what I should say I'm most convinced by, is that I think the distinction between the two collapses. My understanding of the positivist position that he characterizes in Hart is that ultimately the validity of laws depends upon social facts only and not moral facts. And the idea is that social facts are something like I'm not sure exactly what they are, but some kind of consensus driven but not moral norms that are established that include rules of procedure and things like that.

9:25 Mark: Even the group accepts this moral theory that's a social fact, even though it contains intentionally have embedded.

9:32 Wes: It's a non normative social fact that people have. Normative.

9:35 Dylan: Yeah. And you might also, of course, say that morality is use.

9:39 Seth: I don't know. I find Dworkin's in hard cases, he gets a little jargony and it doesn't read as well as the other critique that we read of his or doesn't read as easily. But I guess I'm caught up in something about the notion of judgment. He's talking about how judges make decisions on the applicability of law based on extralegal considerations about intent for various things. And maybe I'm just caught up that I think his description sounds compelling and maybe it's not so much a refutation of Hart. I'm not sure at this point you

10:12 Dylan: mean the observation of the fact that judges do that you find compelling.

10:17 Seth: I think Dworkin gives a better account of what judges actually do because when he talks about how the judge is looking at precedent and in the cases that he cites where he is very specific examples about the one about the automaker, for example.

10:33 Mark: Yeah, let's lay that out.

10:35 Seth: I guess there was a case where automobile manufacturer had either a defect in the car or the car wasn't sufficiently well designed to protect an individual in a particular accident. And even though the individual had, in buying the car, had signed a waiver that said, you know, the automobile manufacturer was not liable, he still had sued the automobile manufacturer and the court decided in his favor. There were a couple of different reasons, but one of the key ones was that the court said, well, because automobiles are a critical think of it as a tool or are needed by individuals, the automobile manufacturers have a responsibility to make good cars.

Not just make good cars, but to take precautions that the consumer might not be necessarily aware of when they signed the waiver about protecting them, and that these considerations outweighed the considerations that in just the legal process of the contract signing or the waiver signing by the

11:35 Dylan: individual, the individual can't waive that because it's an obligation that the automaker had. That was unwaveable.

11:45 Wes: Yeah. The other principle at work here is some waivers are not enforceable because you can waver your way out of just like some contracts for an enforceable an auto manufacturer can't take advantage of someone's financial necessity. Right. And automobiles are kind of necessity at this point to make them sign something that's not in their interest.

12:05 Dylan: So you can't contract yourself to be a slave.

12:08 Wes: Yeah. Henningsen versus Bloomfield Motors, 1960.

12:12 Mark: Yep. So in this case. Right. The court said you can't enforce that. But there was no law that said, well, you know, you can't enforce contracts that are too onerous or something like that. So Dworkin is claiming that it looks like they just applied their at least this is the point under dispute is did the judge just apply their intuitive moral sense that that's just not fair? Or what would be the basis? The positivist would say, look, the law has run out there. The judges just legislate at that point. They just insert their moral opinions. And Dworkin is saying that misunderstands how judges see their own moral opinions in this case.

And I think this is even in Hart That Hart really thinks that what they are and they should do is what's the spirit of the law? You know, the laws that are passed. And so it's not just the explicit laws on the books, but all the judicial decisions in the past. So this is the big thing that Dworkin introduces, is he wants to distinguish between the rules that have been passed, whether they're as the result of laws or just rules established by judicial precedent and legal, not moral, but legal principles, which Dworkin claims are actually part of the law.

And so following on this whole British common law thing of, oh, there are all these traditions, you know, laws aren't just made out of a vacuum, that the legislature just, we could do anything and just creates things, but that there are pre existing traditions, principles, something that the laws are then created to flesh out. And so when the judges are deciding on a case, they don't just look at the previous decisions and the laws on the books, but they look at this tradition, which in fact. So when you're saying, what is my own moral opinion on this as a judge, what you're actually doing is saying, I'm a member of this society, and this society, its laws were built on fairness and justice and all this stuff.

And so what does the spirit of that law tell me that I should say in this case?

14:05 Wes: This is critical because you're not only looking to precedent. In this case, sometimes there might be a way to use precedent to justify principle. Right. But sometimes you're not going to be able to do that. And in this case, arguably, judges are thinking more broadly about community standards of fairness. Right, Mark, like you were just mentioning, you can actually appeal to that sort of thing. Not just a precedent for principles, but

14:31 Dylan: there would be a distinction between. I'm going to understand my own take on this as being a reflection of the community standard versus my assessment of what the community standard is. Those are two different things. It seems like the latter would be more like what certainly Hart would say a judge ought to be doing. I'm not 100% certain about Dworkin, where part of that is assessing what the state of the community standard is, which could be distinct from what the judge thinks them making the extrapolation that whatever their opinion is is a manifestation of the community standard would be just prima facie wrong. Look at me using legal terms in the middle of this podcast, because we're talking about.

15:13 Mark: Dworkin doesn't actually address that specifically until the end of the Hard Cases essay, but he kind of wants to say in some rare Cases, you're going to have to look at it like a sociologist and say, what is the community standard? I don't necessarily share that. And he talks specifically about there might be a notion of dignity inspired by Aristotle. And you might ask, does the notion of dignity of a person entail, as in the Thomson article we read in abortion, that nobody can be forced to give a great deal of their time, attention to someone else.

That would violate their dignity, and therefore that would carry over, as Thomson said, into abortion. And you could evaluate that without yourself believing in that notion of dignity. But in most cases, they're shared terms. Like, it's not like you say, I don't really believe in dignity. No, you believe in dignity. We're just having an argument about what the word dignity actually means. It's like a philosophical argument, if we want to, in philosophy, argue what is dignity. So you come up with a theory of dignity that explains as much as possible the actual laws that have been passed in the name of dignity, the actual precedents that have gone in the name of dignity.

And that's how you figure it out. And in most cases, because you're a member of this moral community, you are going to have some stake. I think, Dylan, you're right. Obviously, since people disagree, it can't just be, well, what's my personal moral opinion? But as a judge, you get in this mode where there is not a clear distinction between what's my personal opinion and what is the spirit of the moral community. Because you're a member of the moral community and there is some complex relation between those things.

16:45 Wes: Yeah. Maybe different conflicting principles at work. Right. And it's just you're weighing them. It's entirely possible that, and probably usual, that you're looking at a lot of different standards, maybe even conflicting community standards, conflicting precedents, conflicting principles, and trying to figure out what applies and at what weight and what turns out to be the winner and all that. Right. Because as Dworkin has it, that no principle is dispositive. That's one of the things that distinguishes it from a rule. You can't just say, oh, there's a principle. This is the result. In many cases, you're to go with one principle, you're going to actually be going against another, and you'll have to explain why and why one principle is more important.

17:25 Mark: Could we just say why that's not

17:27 Seth: the case with rules, the notion of a rule versus a principle. The rules are intended to be descriptive and applicable, and they hold or they don't hold. And rules should not conflict. If they do, then one of the rules needs to be revised or is wrong or is not applicable in this situation, so there should be no conflict. Whereas principles can conflict with each other and depending on the situation, might have different weight. And so what's interesting about what Wes was talking about and what Dworkin brings up is that in a very specific instance, the judge has to, or the jury or whoever it is that's making the system may have to weigh the applicability and the weight of specific principles in that particular instance.

And that same set of principles applied to a different instance, the weights may differ or the applicability may differ. So you can't necessarily use a principle as part of a precedent in that respect. But what's also important about it is that there may be disagreement. So a ruling may favor a defendant in one case, and then it goes to appeal and the decision is to weigh the principles differently. And that's not a disagreement about the applicability or the validity of a rules. It's this fungible nature of the way in which interpreters of the law bring these principles into play and weigh them.

And that in itself is indicative, at least to me, that what's happening is not something that's strictly within the confines of the legal system and that it's about right application or right interpretation in a particular instance.

18:58 Wes: Yeah, let's, let's give an example of that. I forget what this case is called, but there's the guy who gets an inheritance by killing his father.

19:05 Dylan: Is that the Riggs?

19:07 Wes: And technically, legally, he's entitled to his inheritance. But the judges say, well, there's a principle at work that someone can't profit from a crime and so he can't have his inheritance. But that doesn't mean that principle is going to be dispositive or have the same weight in every case. Right. So if someone breaks a work contract for a higher paying job or something like that, there are many cases in which you could break a law, profit from it, and it would be fine.

19:33 Mark: The background of this that was in the lighter article was that previous to this, Riggs versus Palmers, 1889, before that, there was a law apparently on the books that if you commit a crime, you become legally dead and therefore you couldn't inherit. It just means that it kind of is a denial of due process, because once you're determined to commit a crime, so I guess due process has been, you know, passed to convict you, but then the government could just take all your property. And that was Repealed at some point around that time.

20:03 Wes: That's insane. Repealed by virtue of insanity.

20:09 Mark: So this was an elaboration or a specification of. We've given felons back their property rights, but in this case, we're not going to let the murderer directly profit off of the person that he murdered. So if you break bail and you go across state lines and you make a very profitable investment, you go to the casino and you win big, the government can't say, well, you only got that money from the casino or from your investment by breaking the law. And so we're going to keep those earnings. That's not germane. So people can profit from their wrongdoings, just not in such a direct way. So it's a principle, not a rule.

20:47 Dylan: So make sure you buy your lottery tickets when you're out on bail to cover your expenses later.

20:52 Mark: I brought this Briggsman up to my wife, and she was like, well, but who would get. Would the murderer's descendants get it? Would it just skip? Or would the government get it? I don't know what the proper solution to this is, but it seems like if you murdered your father because you wanted your kids to have the money, and then you went to jail and you're like, I'm fine. I'm sacrificed, then it still seems like,

21:10 Dylan: should your wishes be granted, it's a second one, right? So maybe you. You're not entitled to keep the money, but there would be the other one where you could decide where it goes as the one who rightfully inherited it, but you're not allowed to keep it because of this mitigating factor that you killed the original owner.

21:30 Wes: If it's directly willed to the grandkids, the grandkids should get it. But anyway, let's start.

21:35 Mark: I mean, that's what's fun about these papers. So much of it is abstract, but when it gets into the actual cases,

21:40 Wes: like, okay, well, we started digging into our intuitions about what's right and wrong, what's just, and what's unjust. So it illustrates what's going on here, interpreting the law.

21:51 Mark: Right. Dworkin's argument is that the judges are, in fact, using these legal principles that are sort of well established. They're implicit in decisions. So what you're doing when you're coming up with a solution to a hard case is you're coming up with a legal theory that accounts for, again, I like to say, the spirit of the laws that encapsulates as many of the past decisions as possible. So it's just like when you're coming up with a scientific theory where, of course, as we discuss in our Philosophy of Science episodes, they're going to be some things that the theory doesn't explain or that directly go against the theory.

And so in this case, there are going to be precedents that were passed that you're going to say actually are wrong. But you want to do this in a principled way, such that you're preserving as much as possible of the existing infrastructure, you know, legal precedent, the laws on the books, et cetera. And judges are the only, according to Dworkin, are the only ones who have this responsibility to be philosophically consistent in this way.

22:42 Dylan: Right.

22:42 Mark: A legislature can pass an incoherent batch of laws and will, depending on sort of who has the majority on that day. And so that's the whole point of judges, is to work out those inconsistencies.

22:53 Dylan: I'm just pausing on that. I think you're right that that's what Dworkin wants. He's looking for an account of how to make law in the legal system, maybe not law making, maybe only in the most general sense, so that you had a consistent set of rules that were guided by principles within a legal framework. And I guess I think that Hart would admit that there could be inconsistencies even amongst judges. The only thing that would adjudicate that would be the rule of recognition at the end that there be some authoritative body that would tend to lend consistency, but only insofar amongst the things that come to them. Right.

23:33 Mark: It's just the structure of the judiciary that fills up the rule of recognition. The law has stopped there. So the judge comes in and completes the law through his own legislation, which is not going to be completely unguided, but it has to be up to the discretion of the judge, and the only way past that is to appeal it. And then the Supreme Court gets the say so. And if the Supreme Court comes up with something that the legislature doesn't like, they could just pass a different law that clarifies and undoes what the Supreme Court said.

24:03 Dylan: Tell me if this is totally off track. I couldn't help but be thinking about, I guess, what will be in our upcoming episode and the question of judicial interpretation and the Dobbs decision regarding the proper framework for interpreting the Constitution as a principle. So it seemed to me that that's exactly what is being articulated, a originalist interpretive framework for the Constitution as a way of understanding how the rule of recognition ought to work as being at play here. And so, in a way that Alito's decision was, or the majority's decision was doing something very Dworkian, articulating a very, very specific rule for interpretation, a principle of interpretation that would, even if peculiar, was explicitly framing how to understand the way in which justices legislate.

24:59 Mark: But I think Dworkin wants to leave open the idea that they were wrong.

25:04 Dylan: Yeah. So this is either disingenuous or ingenuous.

25:07 Mark: Right, Right. So on the one hand, Dworkin wants to say that judges can disagree about things because they're proposing alternative philosophical models of how to account for all the existing. And just like in science, the observations are always going to under determine the theory that you make about them in law. The entire history of case law and laws on the books are going to under determine this legal theory. That should then tell you what to decide in the novel case, that's the way judges are going to disagree. But that doesn't mean that every theory that fits the facts is going to be equally good.

So this kind of comes down, like in science, do you believe that the different paradigms and they emphasize different facts, different features of the law in this case, and there's just no way that those people can converse, you know, no way that anybody could judge between them in any way external. And there is something to that from Dworkin. Dworkin says, like, when you're judging, you're in the legislator, you're in the thick of the process. You can't step outside of it. Like he thinks that the positivist wants to do and make judgments about it, that that's what the positivist is just.

I'm just looking at the rules of recognition. I'm just looking at empirical facts. There's no way of doing that. On the other hand, there has to be room within that framework of arguing, of philosophical argumentation for somebody to be wrong, so that you could just make a theory that really doesn't fit the facts very well. And so I think he's going to say about this abortion case that Alito and them, they just are ignoring significant principle precedents that they should not be. It is not really within their purview that they are going beyond a reasonable assessment of existing precedent and legal facts and whatever.

Until we get to that next time, I don't know how really to decide that.

27:03 Dylan: We'll get into that. What you just described from Dworkin about the way in which you can't get out of the thick of it struck me as a strawman critique of Hart, because I would have thought Hart, in his positivist structure, would say exactly what you just said.

27:21 Wes: Yeah, why isn't discretion enough? Maybe we should get a little more into discretion and say the positivist does seem to build in a pretty good mechanism for going beyond saying it's not just about the application of rules, primary laws that have been established according to the rule of recognition and then applying those rules. There are hard cases and the judges have discretion in those cases. And Dworkin has to defend himself against the charge that this is merely semantic because he wants to say, well, when judges are using their quote, unquote discretion, it's weak discretion, and they are bound by something, right?

By something that's within the law. The dispute is over whether principles are in the law and legally binding as a matter of the law, or whether the judge with discretion, with strong discretion, is reaching outside of the law, which we have to make sense of. How that's a. Is that a real difference? Shapiro will end up saying that. Actually, the positivists are able to answer that pretty handily.

28:30 Dylan: Just to clarify, you're wondering whether there is really a distinction to be made between strong discretion and weak discretion. You're wondering if that's just a false distinction.

28:40 Mark: I guess we need to say what weak discretion is. So the examples that he gives in the 19th Dworkins 1967 article, discretion, like a hole in a donut, does not exist except as an area left open by a surrounding belt of restriction. Somebody who's judging balls and strikes is exercising a weak sense of discretion because we already have standards like it is a strike if it is within. It's just a matter of who's going to measure that. So it's like, well, it's up to your discretion. It's your job to be the measurer of that as the umpire. So, fine, we'll leave it to that. And we could even say that we're not. It could be the tradition of the ball game that we're going to say, you're right, even if. Then we have cameras and say, you know, actually it should have been a strike, not a ball, but we're going to say the rule leaves it to the umpire's discretion.

29:28 Wes: There are two senses of weak discretion, though. This is the second one that you're describing in which we say an official has discretion in the sense that even if they're in the middle of the hierarchy, the decision stops with them. It's their discretion. Right? The umpire can't be appealed to something higher, even though the camera. Right. We may Consider that in a way higher in the hierarchy or something else. But to me, the more relevant sense of weak discretion is just judgment. So if you say to an officer, take your five best men, your five most experienced men, and do such and such perform this mission, it's the officer's discretion to decide which five men are the most experienced.

And that is a matter of discretion in the weak sense. It just means, well, you got to use your judgment. And ultimately, it doesn't mean that that officer is not bound by something, right? He could make a bad decision. He could take his five most inexperienced men or use the wrong criteria for experience, but it's really just about using one's judgment sensibly.

30:30 Mark: I thought you meant experience at Pokemon.

30:32 Wes: That's not I got my five. But strong discretion would mean something else. According to Dworkin, those two versions of

30:41 Dylan: weak discretion just seem to be special cases of each other. You know, the authority, in the case of the police officer, selects the five members to go on this mission, and he has discretion over that isn't any different than the umpire having discretion over the balls and strikes. And also you may say, well, he commits too many errors and we need to have a higher authority. And you could have the same thing. I mean, it's the same thing saying that, well, the sergeant makes too many errors on who is actually the best. But in the end, it has to do with them implementing a bound. It's up to them to be the judge within the bound of a set of questions. And the variation that's there has to do with their judgment.

31:22 Mark: What's strong?

31:23 Wes: Strong discretion would mean that you're not bound by the standards set by the authority in question. So, for instance, if you pick five men, you're not bound by any precedent or principle about which men are experienced that comes from within the, say, the military authority, because there's nothing in the rules that say what experience means. So the sergeant has to make a decision, according to strong discretion, about what experience is. There's no sense in which they're looking within law, so to speak. This, for Dworkin, is something that just doesn't.

This is not what's happening. This is not the right way to describe what's going on. When the sergeant is picking the five most experienced men, there's a sense in which he is actually still bound by the authority, right? The principle involved in picking the most experienced. He would get in trouble if he just picked the people who are best at Pokemon. That would be a misapplication of his authority. And A failure for him to follow the order in the correct way. So that's kind of the intuition here. Shapiro wants to say that what's governing the behavior of the officer and making that choice is still somehow internal to the authoritative system.

It's not just his discretion going beyond that system.

32:48 Mark: If he was a member of the peu, the Pokemon Enforcement Unit, then it would be appropriate.

32:53 Dylan: Yeah, it does make me think of things like the Dirty Dozen or even Moneyball, where you have someone who has discretion, who is. Then the whole point of that narrative is they are exercising discretion that is effectively strong discretion outside the purview. So instead of hiring soldiers in good standing to complete the mission, they choose a standard that's outside, that includes lots of people who are in fact criminals to go out and execute the mission because they have the skill set to do so. Or in the case of Moneyball, where you have a manager of a baseball team who is selecting players on the basis of a whole new criteria, in this case, statistical performance on certain things, rather than on at the time, conventional way of judging whether or not a player was going to be good and is executing his discretion a kind of strong discretion that, well, I'm manager and I get to say what a good player is in the case of judges,

33:57 Wes: to move on from those examples, because I'm still a bit confused by all of this, in all honesty, even as I try to make this argument for Dworkin. So the question is, do principles in hard cases control judges decisions, or is some sense of strong discretion mean they are not bound in any way or in a way that's within the law?

34:20 Mark: So it's difficult that the way even you ask that is, do or should that. He wants to say that ordinarily this is the way judges think. This is the way judges are trained to think. This is the ethics of judgment. But that doesn't mean that they always do in all cases. They could actually be in some cases not exerting some legitimate strong discretion, but just not doing what judges are supposed to do.

34:42 Wes: Yeah, do principles control means doesn't mean do they in fact always determine. It just means odd. So you know, he'll say, the positivist might say principles aren't binding or obligatory. And Dworkin thinks this is a mistake because, you know, judges could be criticized for not taking principles into account, especially things that other judges have been attending to for some time. You might say plaintiff was entitled to you taking into account that principle. That's another way of trying to say that's more than Discretion at work there. You're bound by something.

35:20 Dylan: Is this the nub of Dworkin's critique of positivism? That it's incomplete? Is it that it's incomplete as an account of what actually happens, or it's an incomplete account of what ought to happen, like how a proper legal framework should work?

35:37 Mark: I mean, I would think both. If he can't account for what actually happens?

35:41 Seth: Well, no, I think he says at one point that it's a critique as a description of what does happen, because I think he finds Hart's description insufficient or inadequate as a description of what actually happens.

35:54 Mark: And so it was funny reading Leiter, his response to this, which is to actually delve into those particular cases that Dworkin considers further. And like in the inheritance case, this is. Leiter brought this up. It was the very same judge that was. I can't remember exactly the details of this, but he really thought that, you know, just like we cynics might say, the Supreme Court only passed this because they're against abortion in the first place. Supreme Court only passed this because. And you just lay out their political agenda. And the judges all on all stripes, they all deny this is not what we're doing.

You don't understand judging at all. And Leiter seems to be saying, well, in these cases, you can very clearly understand why the guy that wanted to deny the man the inheritance for killing, because this is just a judge that looking at his other cases at the time was super moralistic, and damn the law. It's not fair that he should cash in on this. And so that was just in the character of that judge. Whereas the one who denied that, who said, no, actually it's the law that the person should be able to keep, it was somehow involved in that same case that I mentioned about getting rid of criminals are no longer persons.

So he had some interest in revising that. So Leiter, at least in that portrayal, is being a cynic, or what is normally called a legal realist, which says, I think on the grounds that dwork is objecting to, but is very much compatible with positivism, that, yeah, the judges just do whatever they want when the law runs out in those hard cases.

37:28 Wes: You know, I mean, ultimately, I think Shapiro will successfully show us that positivism is not really incompatible with sensitivity to legal principles. There's a good response to that as

37:40 Mark: a way of sort of closing out part one here. The dispute part between Dworkin and Hart was the least interesting part of this to me. Like, it was more just Dworkin came up with some ways of talking about this, like legal principles versus legal rules that are illustrative and that were not directly in Hart, even though Hart later says, well, you could put principles. I didn't mean to rule those out. So to me, Dworkin is just adding to this explanation for how judges make decisions. And I don't care so much about this distinction between them, other than what I just laid out is, what are our grounds for critiquing a judge who makes a decision in a hard case like the abortion one that just passed?

Is there any grounds for us to say that they were wrong? And I think arguably from either of these guys, there still are grounds to say they're wrong, that Dworkin was wrong, that Hart did not say there was just this absolute strong freedom of discretion, blah, blah, blah. But at the same time, he didn't have Dworkin's conceptual framework for saying why they're wrong. So Dworkin's addition is valuable.

38:43 Wes: Well, wrong not just because they're not applying a rule. Right. But wrong in some different sense involving principles.

38:51 Mark: All right, well, this seems like a good place to wrap up Part one. If you're a Partially Examined Life supporter, then you can get part two right now. It'll be the next thing in your feed. Thanks, everybody.