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

0:08 Mark: Hey, this is the Partially Examined Life, episode 304, part 2. We've been talking about Ronald Dworkins, the Model of Rules. We're going to bring in Scott Shapiro's the Hart-Dworkin Debate, a Short Guide for the Perplexed. We brought in some other things as needed. Switch gears to explicitly talk about the stuff that was in Shapiro's account of this. We've kind of given the first stage of the debate, but Shapiro at least summarizes for us what we did not read in detail.

0:37 Wes: Yeah, I think I can get us into this in a good way. He's going to be summarizing this Dworkin paper that we just read to some extent, and so we don't need to go through all of that. But I will say that he kind of gives a nice structure to all of this in his summary. So he calls this model of the Rules 1, this particular paper, and says that it gives three characterizations of Hart's positivism. One is this pedigree thesis. Law can be identified by tests that are based on not on content, but on pedigree and social facts. Right. Rules of recognition.

There's the discretion thesis, which we've discussed quite a bit. When they're not valid rules that clearly cover a case, judges look beyond the law. And then there's what he calls the obligation thesis, which that legal obligation necessarily involves falling under a valid legal rule. Then the question is how? Dworkin criticizes all of these thesis, and he starts with the second one. The argument against judicial discretion is just that, it can't account for the existence of legal principles and the way in which judges regard themselves as bound by legal principles as law, when no rules are clearly available.

And then there's the auto case and all that stuff again. You know, say judges exercise weak discretion, but it's not right to say they exercise strong discretion.

1:56 Mark: Can I throw in a term? I forget whether Shapiro uses this or just Leiter. But Dworkin says he accounts for the face value of when actually judges are having these conversations about hard cases, what they say they are doing, they don't say, I'm just legislating. The law stops here. It's my prerogative. Me, me, me. So the fact that Hart is having to say they think that they're doing something that is founded in law, but they're making a mistake. So it's an error theory or they're just lying. They know that they're making stuff up, but they don't want the general public to figure this out. So the dissembling thesis, Dworkin finds both of those very implausible.

2:35 Wes: And then, you know, the second attack is on the pedigree thesis. This is the section C content, not pedigree. That's the idea that you can't do the positivist thing with legal principles by trying to say, well, they're always just. You can always look to the fact of precedent or something like that stuff that's gone on before in the legal system. And that's because legal principles depend on content, not on pedigree. And that content includes the sense of appropriateness developed in the profession or the public over time. And basically what we talked about, the moral perception of what's fair or not.

So general concepts of fairness. It's not that pedigree is irrelevant. Principles often do have institutional support. Right. Support and precedent otherwise. But content is the more important thing. And also despite that institutional precedent. This is the part that interests me that I wanted to kind of fast forward us to. There's no positivist master rule of recognition where you could just test the principle, right? It's like, can you write an algorithm? If the law were all rules, it'd be easy to write a judge algorithm, right? And then put cases.

Or maybe it wouldn't because of the fuzziness of concepts. Right. Or the open texture of languages. Hard calls it. But it would be easier to write some kind of algorithm, replace a judge with a computer with principles. It's even harder to imagine doing that. Basically, what Dworkin is saying is you couldn't create that algorithm. You couldn't create a positivist master rule that could test some principle based on its pedigree of institutional support, because principles are shifting, they develop over time and they're conflicted with each other.

There's weights to them and then there's even meta principles that you need to use to resolve conflicts between principles. So it gets very, very complicated. There's infinite possible cases, future cases. Right. Teacher. Hard cases that you can't anticipate. So there's not a way to codify all this in a master rule, which I was thinking about, this irreducibility to

4:39 Dylan: algorithm, what you just described, all the way up until the qualification that Dworkin says that this isn't positivist sounded to me exactly like Hart. And maybe that just is the criticism or refutation of Dworkin, that that formulation that principles guide, in the end, the activity of judging in a legal system, properly speaking, to fill in the gaps where rules aren't clear enough is just the way judges work. And that those principles are really principles born out of use. And that would be the response. And that, in fact, there wasn't anything I read in Hart that to me meant that you needed to have a algorithmic machine that was going to be the structure of your legal system. Then in fact, the rule of recognition, which to me was like the end of the line.

5:35 Mark: Right, The Archimedean point.

5:37 Dylan: Yep. And there's sort of progressively less and less algorithmic machine churning as you go further and further towards that Archimedean point in the legal system. When you get up to the top of it, there is a ton of principle guidingness going on. And hard cases would exemplify those instances where the law was more or less mute in any explicit way, but it was really more about how do we understand what we should be doing? And you get to principles like, well, things ought to be simpler. That's the same problem in science that you end up getting the principles that allows you to judge between individual theories or the weighing of theories, or the priority of evidence over another.

It's just a principle to say, well, extraordinary claims require extraordinary evidence. Just because you have one measurement that says that the principle of energy Conversation isn't. Isn't true. Doesn't mean that you've overthrown the principle of energy conservation.

6:38 Wes: So you, Dylan, you're transitioning us into.

6:40 Dylan: Am I going too fast? I'm sorry, I.

6:42 Wes: No, no, no, no, no, no. This is like the next section, I think, and I think we're right where we need to be. I think this is, you know, Shapiro is going to start defending positivism against these attacks, right?

6:53 Mark: Dworkin's attacks through a bunch of secondary sources that we did not read. And.

6:58 Wes: And this is in Section two.

7:00 Mark: We're very grateful to Shapiro for summarizing for us, Joseph Raz, but this is

7:04 Wes: Section two, the issue, he calls it. Ultimately, we're going to get into responses in terms of exclusive legal positivism and inclusive legal positivism. But in this transitional section, the issue, he'll say, okay, look, Dworkin unfairly criticizes. Hard for saying the law consists only of rules, never of principles. You know, he's not doing that maliciously. He's trying to give a charitable reading of strong discretion. But really, there's a better explanation of Hart's theory of judicial discretion, and that is the inherent indeterminacy of social guidance, the fact that you can't settle every contingency in advance.

Rules and principles are general, and the question of application will always arise. This gets us into interesting philosophical discussions we've had before, let's say with Wittgenstein or even Kant or Plato. How do you pull particulars under concepts? How does that happen? It's really mysterious when you start to think about it. And that problem kind of infects the laws. So precedents, you can look to precedents, and they give us exemplars, but that doesn't tell us what the relevant standard of similarity is. Right? You could say, okay, here's this exemplar from the past.

Well, what's my similarity? Space, I think, is what an analytic philosopher would call us or call it. And language itself is a problem. It has open texture. So the way Shapiro puts it, is Hart's doctrine is not in fact a model of the rules, but privileges social acts of authoritative guidance. A rule is a standard that has been identified and selected as binding by some social act. I think, Dylan, this is what you're getting at by. It could be legislature, but it could even just be custom. And of course, that's where it all starts. Right. For Hart, with custom.

8:48 Mark: Right. So it's a misunderstanding of what the Archimedean point is. Is the Archimedean point, say the Constitution, in other words, these words on a piece of paper? Or is it the way that the Constitution is adopted, Our adherence to the Constitution, which is by necessity something that is not a single piece of text, but is a vast social fact that is very complicated and nobody can ever know it in its entirety.

9:15 Dylan: And I thought that Hart was explicit about it being that way in his formulation of a rule of recognition. I mean, sure, a Constitution would be a manifestation of it, but certainly it isn't a rule in the way that Dworkin is saying. And I guess I'm basically just explicitly agreeing with Shapiro just after where you said, contrary to Dworkin's interpretation, Hart never embraced the model of rules, either explicitly or implicitly, where the model of rules is the way in which Dworkin interprets a rule as distinct from a principle.

9:50 Wes: And this kind of gets us back to a more fundamental debate, the debate between positivism and non. I'll call it. I don't want to call it natural law, but non positivism. So Shapiro ends up saying, yeah, this whole thing about treating this debate about whether the law contains principles as well as rules is not really the real debate. What's really going on. And the debate is not really about discretion and all that. What's really going on, the debate is about whether morality is a factor or whether it's just a matter of social fact about what's been socially designated as authoritative.

So Hart says it comes down to matter that standards socially designated as authoritative. And Dworkin basically denies the centrality of social guidance to determining the existence or content of legal rules. He wants to say, quoting the law contains norms that are binding even though they have not been the subject of past social guidance. Rather, they're binding because of their moral content. And when norms are subject to past social guidance, the bindingness depends not on social designation, not on some kind of rule of recognition, but on principles of political morality.

So that's what we come back to. That's the real debate.

11:06 Dylan: What is the nature of being bound? What is the nature of obligation? Right.

11:10 Mark: These are things, I think in the end of our discussion last time about Hart, we were having some trouble with. Is it really positivistic? In other words, does it really just cash out into this? I don't want to say social relativism, because Hart. Well, it is social relativism. It's just that it's social relativism done from the inside. As Hart says, that we are a member of this community, so it's not like we're standing outside and saying, oh, all the beliefs are equally equal, or whatever we're committed to.

11:36 Wes: Equally equal.

11:37 Dylan: I like that. Just say what it is, is it's

11:42 Mark: legitimate, equally legitimate to somebody, because we only really care about the ones that are legitimate to us.

11:48 Dylan: To me, this is a really interesting manifestation, I guess, of the inside, outside distinction or the conflict over. Mark, you brought up positivism in the philosophy of science sense, where this seems to be way more convincing in the moral legal framework, that it's a product of use as a social activity, that there are facts about it, but it's also an evolving, changing entity that's sort of built up for the inside in a way that seems to be harder to deal with in a case, to, say, a scientific account of the world, that even if you say that, well, people built it, they're still talking about something outside of it, outside of us.

And then that's the stumbling block always. And here it feels like, well, it doesn't seem so hard to go in the positives route. In fact, it seems even more true to me because it seems in kind of a plain way that what's legal is a social phenomena, it's an activity amongst people. And so what would it even mean to say that something morally out in the world had some kind of obligation on us that was an obligation, but not a force? I mean, in the case of science, right, is what you're going to say is you're going to say, well, you can just be wrong because actually gravity works this way and you're just wrong about that.

And there is a fact of the matter out in the world besides your observation of it. But here it seems easier because you're saying, well, in some kind of plain way, there is no fact of the matter outside of what we say it is.

13:27 Mark: So maybe the complaint, and this is just because of what Dworkin says specifically at the end of Hard Cases, is that he thinks he's attributing to positivism, this foundationalist tendency, this Archimedean point that we keep talking about. And if we're going to move and say, oh, well, Hart really just meant it wasn't like the Constitution or the act of the Queen in Parliament, you know, these examples that Hart actually gives, but those are actually foundational. It's the social fact of our acceptance of that, which involves a whole bunch of norms for contextualizing each of the words involved in those things.

Because, you know, as we said, texts don't read themselves. So if we're going to acknowledge that there is a very hazy, complicated social edifice surrounding this. Why pretend that that is a foundationalist in any sense? Why oversimplify things and talk about the pedigree, what Hart put it in this chain of justification? Why is this particular thing wrong? Well, because of this law that was passed. Why is that law legitimate? Because it had this origin. This origin. Why talk about that chain as if it had a stopping point when in fact we're in the midst of it?

That's the way human activities work, is that they're cluster concepts that all rely on each other. So the justifications actually could be circular. And that's the sophisticated way to think about ethics or any sort of socially grounded social construction or whatever. And Dworkin just wants that there is inherent in positivism this notion of simplicity, even if it's not there in Hart anymore. And this notion of simplicity and foundationalism. And Dworkin just feels like, just give that up. Don't even pretend, don't even gesture toward that. And maybe that's just a semantic argument.

15:10 Wes: The positivist wants to be able to distinguish morality and law. Right, because we don't legislate every form of morality. You know, you might think there's such a thing as sexual morality or being nice to people. We don't get in trouble with the law for being dicks unless we elevate that to a violent level.

15:30 Seth: There's no doubt that the law does try to legislate areas of morality. It just doesn't legislate all of it. I guess my question is, what's really at stake here? Why is Dworkin so hell bent on criticizing the foundationalism of positivism? And why? Why do positivists feel like they need to hold on to that for some sort of justification of the validity or an explanation of legal obligation?

15:55 Mark: I mean, any insight from Shapiro?

15:57 Seth: I guess I'm not getting the big picture here.

16:00 Wes: Should we look at these two forms of positivist response, the exclusive and the inclusive?

16:05 Mark: Sure, it seems nitpicky, but we've got time.

16:09 Wes: I think we can do that very briefly and then move on to the round two part, which is about theoretical disagreement, which I think Shapiro thinks it's the more powerful argument. And also I think it is interesting, Seth, you can tell us, I mean, if you're interested in the theoretical disagreement thing, but just the two positive responses to Dworkin that Shapiro fleshes out. One of them is to actually go against Hart because Hart rejects the pedigree thesis, Right. Ultimately, according to Shapiro, he was inaccurately characterized by Dworkin as holding to the pedigree thesis.

And the exclusive positivist will say, wait, no, actually we should stick to the pedigree thesis. All principles do have pedigrees, even if they don't appear to explicitly. They have them by way of judicial custom. And then one might object to that by saying, well, judges do appear to apply novel principles that aren't in judicial custom, like they did with the auto manufacturing case. The second response to this is to say that, and this he attributes to Raz, principles can have no pedigree, but the legal obligation to apply them does have a pedigree.

So in other words, you could have a obligation to look to morality, right? You could have a legal obligation, which is not a self, a moral obligation as a judge to look to morality in making your decisions. So there's still strong discretion there. There's a sense in which you're still required to look beyond the law, but that doesn't mean that you can simply do what you want. So you're legally constrained to apply certain extralegal principles, namely the morally best ones,

17:51 Mark: which if the whole point of our discussion of Hart last time was this strong distinction between morality and the law, I don't like this backdoor introduction of, well, but the law could be that you have to look to morality, like, then you. There's no real distinction.

18:07 Dylan: Yeah, I'm just wondering if this is really getting to Seth's question about what's at stake. Like why is Dworkin making his argument in the first place? And why are Hart's defenders trying to defend him, absent it being just a academic pissing contest? Is that a version of your question, Seth?

18:28 Wes: Well, this comes down to whether we want to be natural rights.

18:32 Seth: That's exactly theorists. That's a much more articulate version of my question.

18:36 Wes: But so, for instance, in a evil regime, a lot of unjust, terrible laws, and then the question is, aren't they still laws? Aren't they valid according to a pedigree, according to a rule of recognition, don't we need a way of coherently talking about legality that doesn't just boil down the morality? It gets free, confusing if you don't do that. So that's one of the motivations for positivism, is that legality can be very, very far from morality, but we could still have a way of talking about its validity in terms of pedigree. So when we complicate the matter, we're not just saying that whether we think this is anti positivism or not, because it seems like Hart makes allowances for this.

When morality gets into the system in some way, morality is still a part of it. It's complicated. We have to say how morality is part of it. Obviously there's lots of morality that's not legislated and obviously there can be evil laws. So it's not that. It's not just that law and morality are identical, but they have a very interesting, complicated intersection, I think. And that's what this is about.

19:42 Dylan: Yeah. So at the end of Hart, he brought up the case of the legal system revision in post World War II Germany, and that the criteria that he referred to that he criticizes is that people were found guilty under laws or not found innocent under certain laws. That had been true during the Nazi regime on a basis of. On a moral argument that the justices said, well, those laws were immoral and therefore they don't apply. And Hart criticizes that, saying that you can't deny that they were laws, but what you can do is you can say there's a new set of laws. And I think that Dworkin would side with the jurists in Germany, that he would say that they were perfectly right to say that those laws were invalid because they were immoral and they violated some higher standard than legal standard.

20:42 Mark: Well, it could just be a standard of consistency that if you think that what constitutes law is a whole bunch of different measures and judicial decisions made by disparate individuals, then again there's not going to be sort of a singular underlying theory of that. So by saying we're going to invalidate what a legislature no doubt passed, like, by all means turn in your neighbors to the Nazis and you'll get rewarded. Like, if that's the law in question that they're thinking about, we're going to just deny that based on a larger conception of other elements in the law that were still in the law at the time.

And I guess this is getting into that issue of precedent and to what extent, I think in hard cases or no, it's at the end of Hart Chapter seven, he talks about this like, can a legislature bind itself from changing the law in the future? Like, in other words, can the Nazi regime just arise and say, screw all those old laws. Here are new laws and those are the ones. And then when the Nazi regime is over and you're evaluating people's behavior during that Nazi regime, do you regard only the laws of that then current Nazi government as having legitimacy?

Or do you say, no, there are things from previous tradition that by the very nature of law itself held over into that period, despite whatever actual Nazi officials might have said.

22:10 Dylan: I think you're formulating what the positivist response would be to the formulation of Dworkin's point. But I still think the terms under which what I said is the answer to Seth's question, what's at stake from the standpoint of why is Dworkin making this point and why are Hart's people defending it? It comes down to whether there are extralegal standards that you appeal to rightly in order to found law. And part of that answer is the positives would say, of course that's the defense. But I think Dworkin has in mind the kind of thing that Hart engages at the end of the chapter we read for last time, and Dworkin would just disagree with Hart. He would side with the justices from Germany.

22:54 Wes: I mean, I think this gets us into the inclusive legal positivism response, which is just to say legal positivism doesn't prohibit moral tests of legality. But that is not to say that there is this necessary connection between legality and morality. That's not saying the same thing. You can have this Nazi system with a bunch of unjust laws, which is the central claim that the positivist wants to make is what the law is, its existence, its content. That's determined by facts about social groups, not moral facts, not moral truths. We don't want to say, like the natural law theorists, that, hey, there's God's law or there's natural law, and then human laws, if they match, that they're really laws.

If they don't, they're not really laws. That would lead to a lot of confusion, obviously, in the way we talk about the law. But beyond that, is there something more at stake? That's a bigger issue. But even if you grant the positivist thesis, the inclusive positivist will just say, despite that distinction, some tests of legality are actually moralized. They're not just a matter of pedigree. So, for instance, the rule of recognition is a matter of social convention. There's a social convention among judges to recognize certain rules of as binding.

The whole system doesn't work without that social convention. But you could have a rule of recognition that requires recognition of moral rules. There's a weakness to that argument, which we don't have to get into that Shapiro points out, and then a response to that. But we could leave that aside and get to the second part about theoretical

24:26 Mark: disagreement, just to clarify the position that I was making on the Nazi thing, that somehow pre Nazi laws were still in effect during the Nazi regime. That is not the positivist response. That's explicitly not what Hart says, because it seems like the rule of recognition actually changes from society to society. And the Nazi regime was just a different society. It established a different rule of recognition. And Hart gives that whole picture that we talked about last time of how through revolutions or through gradual fading away

24:55 Wes: of norms that had a different legal system.

24:59 Mark: Yes, times change. So I think I was trying to give something that maybe more Dworkin would be sympathetic with, that there are moral principles that become the foundation of legal principles. And these legal principles, I don't know, maybe I'm just pulling this out of my ass, but I think you could make an argument that over time, traditions are binding in a stronger way than just being able to. The revolution has happened. We're starting society from scratch.

25:28 Dylan: But that kind of conservatism goes both ways. Right. So you're pointing to the case of the Nazi regime that there was a principle of freedom or other sorts of things that predated the Nazi regime, and that we can appeal to that as saying, well, our tradition tells us that. But the flip side is also true that you go back far enough, we had a principle that enabled individuals to own other individuals, and that was just part of the deal. And there's all kinds of things that we would consider to be evil now that were part of the social fabric for millennia.

26:01 Wes: And also Dworkin wants to tell us that we should look beyond pedigree. Right. We actually do have to look to fairness and morality in our legal principles.

26:10 Mark: So, again, I haven't read the Dobbs decision yet, but, I mean, I've heard a little about, like, that Alito brought up some 1830s decision, you know, some from some judge who believed in slavery and believed in all these horrible things. And you know, what I understand just in terms of the comparison to making a theory based on disparate scientific data or different observational data, is that, yes, you have all this wealth of tradition to draw on, and you're always making a decision because there's going to be so many conflicts in that wealth of tradition.

When you're a judge, you're going to be making a, well, what's the true spirit of society right now? Or something. I think this has even come up in the recent that the newest judge was. When you're talking about judicial originalism, are you really only thinking about when the initial Constitution was passed or Are you also thinking about the dialogue that went on when each of the amendments was passed? So when the post slavery amendments were passed, how were those understood? And should not the judges right now in determining affirmative action cases or whatever also be thinking about the intentions, the anti discriminatory intentions explicitly so of those things?

So yeah, it becomes very much a pick and choose among the vast tradition, whatever the case. And it is hard not to then be cynical and say, well, there's so much to choose from that you just pick and choose the things that you like. But Dworkin I think is gonna say, no, there's a principled way.

27:34 Wes: Maybe we should go farther back to the point where the founding father's sperm was entering the founding father's egg. What can we derive from that about the meaning of the Constitution?

27:45 Mark: Founding the Constitution was not a person yet at that point.

27:48 Dylan: Point.

27:48 Mark: As soon as it, as soon as the conception happens.

27:50 Wes: Well, that's what I mean. The Constitution begins at conception, by which I mean not conception of the Constitution, but the conception of the Founding father.

27:59 Dylan: Take, you've tilted, you've tilted your hand about your opinion about the whole situation a little bit.

28:07 Mark: Let's. Yes, Acts 2 in the Shapiro here.

28:11 Wes: This is basically the idea that positivism doesn't help us account for theoretical disputes within the law, which Shapiro takes to be a stronger argument.

28:21 Mark: And Leiter responds that Dworkin and Shapiro are nuts to think that theoretical disputes are at the very center of our legal tradition. 99.9999% of decisions are made that there's a pyramid. The vast, vast majority of things are decided more or less in an algorithmic way. And Hart, you know, acknowledges this of just, yes, there's some weak judicial discretion in deciding what the law means and stuff, but it's more again, just deciding does this particular case fall under the law or not. It's not actually a theoretical disagreement. And as Leiter points out, even in the examples that Dworkin comes up with, the judges themselves do not engage in theoretical dialogue in the kind that you would expect given Dworkin's picture of this.

29:06 Wes: Except when we're doing Supreme Court decisions and these foundational.

29:11 Mark: I guess we'll see. We'll see how philosophical they are next.

29:14 Wes: Which in my experience are very philosophical and theoretical. But yeah, Dworkin's claim in Law's Empire, as summarized by Shapiro, is that legal reasoning is often quite theoretical. There are more ordinary agreements. So there's this distinction between disagreements about whether the grounds of a law have obtained, which means was it passed by a requisite majority in the Congress, for instance, does it pass some rule of recognition? And then you could have conflicting claims about what those grounds actually are. So, for instance, he gives this example of a case in which there was a project, the big Tennessee Valley Authority versus I forget who it is because I have this abbreviated.

30:01 Seth: But anyway, it was like an environmental group. Yeah, I think, or at least they were somehow involved.

30:07 Mark: Tennessee Valley Authority versus Hill.

30:09 Wes: Yeah. So this environmental organization or person came along and said, this is a huge project, construction project, I guess that's almost completed, has to be shut down because there's an endangered species in the area. And the Supreme Court said, okay, even acknowledging that, wow, this is a huge waste of resources. This thing is almost complete. It's kind of crazy to do this, but that's what the law says we have to do. So they agree that the grounds of the law have obtained in the sense that there's an actual law there that says that. But then the question is, there's a deeper question of whether in interpreting the law, we just do the plain meaning of the text that just controls every time, even when absurdities follow, or do we have to think of the larger goals of the legal system?

And even in the intent of that law, the legislators could have said, okay, existing projects are grandfathered in. We're not going to shut down a project on which millions of billions has already been spent that's, you know, like a month away from completion. They could have said that that was an oversight. But you could say, but they would have said that if they had thought about it more. And so I'm going to not just do the plain text of the law. I'm going to interpret the law in such a way as the stupid results don't follow. Basically, that's the idea.

So that's an area of theoretical legal dispute.

31:35 Seth: I used to listen to this podcast a lot called Econ Talk and we had Russ Roberts on. I don't know if you guys remember at one point.

31:42 Wes: Right, Smith.

31:43 Dylan: Right.

31:44 Seth: Yeah. One of his favorite quotes is from Hayek. It's something to the effect of, as human beings, we constantly overestimate our ability to predict the consequences of our actions. Right. So it's an argument against heavy handed central government. Right. Because you implement a policy and you think it's going to fix one thing and it causes another problem. And that case with the Tennessee Valley Authority made me think of that. Is the whole process of creating law is the process of trying to create the enforcement mechanism, if you will, for certain kinds of public policy decisions with the expectation that we will generate the outcomes that are desired by those policies.

And then when the outcomes are not what we expect, then, like you said, this sort of strict interpretation of this is what the law says versus some sort of decision about. But it's a massive waste of resources. Does the waste of the resources outweigh the black and white nature of the. Was the law poorly written? Do we have to go back? But it made me think then about that notion of intent. How would you go back if you were trying to do an intent of the legislator approach as a judge in the Supreme Court case? So when he says this is what the law says, the other one, the dissent said, it's a massive waste of public expenditure that we should take into consideration.

But what would happen if we took the third path and said, do you think the legislators intended, when they wrote this, to curtail, for the sake of a salamander, to completely alter the course of the economic, political, social, and future of a region?

33:26 Wes: It turns out right, that we don't do that, even though this word intent has just been mentioned. We don't look to the specific intent of the specific legislators, Shapiro ultimately argued. We look to the intent of the designers of the whole system. All right, we'll get to that. But for Dworkin, you do this thing called constructive interpretation. That's what legal interpretation is, and that is imposing a purpose. So you figure out the purpose of an object or practice, and then when you do something with regard to it, you try to make it the best possible example of the form or genre to which it belongs.

This is kind of like our episode about authorial intent, right? It's not so much about the intent of the authority as the meaning of the text or the system. And the meaning of the system depends on its telos, depends on its actual function. Almost like you would look at an organism. You look at, hey, what is this system? What is its function? What is its quote, unquote genre? And then you use that when you interpret its laws. So you say, is this system really designed to make as. So that we shut down the project that's almost completed? Is it designed to produce absurd results?

No, it's not really designed to do that. We need to constructive interpretations of the law where we make it fit the overall purpose or telos of the system. So that governs these general principles about how laws. This comes back to principle again, right? This is about how laws are going to be applied, whether we let absurdities follow. Because the plain text of law always governs or whether to do something else. But you resolve that by saying, well, what's the point of the practice? Not what the legislators think the point was, but what is the point?

35:11 Seth: Or you could also ask about why there was no feasibility study done before the project got 93, 97% of the way done to say, will we be violating any laws related to the destruction of endangered species.

35:24 Wes: Well, the law wasn't on the books when they started their project.

35:27 Seth: So how is it even an issue then?

35:29 Dylan: Because there was a new law. You know, when laws change, you have to reevaluate. Right.

35:33 Wes: And so, yeah, you can't say my

35:35 Mark: polluting plant was already built before you said that. I can't pollute like this so I get to keep polluting.

35:41 Seth: Wait, you're telling me they wrote a law that said from here on out and retroactively for any project that's in place if it endangers a species that's in progress? The law wasn't even written. They didn't specify, yeah, the Endangered Species

35:55 Dylan: act came out and this project was in the middle of being done. And so there was a suit filed against the continuation of the project on the basis of the Endangered Species Act.

36:06 Wes: They should have thought of this. They didn't. So then you don't look to their specific intent or what they did think of or what they didn't think of. You look at what they should have thought of. Again, the purpose of the whole system via constructive interpretation.

36:19 Seth: I didn't catch that detail. And so basically what Justice Roberts said is if the legislators weren't idiots, they would have specified that this is only for projects going forward and that there has to be a feasibility study done prior to the projects kicking off to see about blah, blah, blah, blah. But since they didn't letter of the law. And then the dissent said, that's ridiculous.

36:40 Wes: But yeah, that's, that's. It was a two word dissent. I think you're right.

36:45 Mark: Leiter's clarification of this is actually, if you read the decisions, both the majority and the dissent did look explicitly to the intentions of the legislators. And the majority said the intentions of the legislators is that the endangered species wins out no matter how big the expense is. They intended the absurd result and they were wrong to do so. But I'm just the judge. That's at least Leiter's take on this.

37:10 Wes: So I prefer the constructive interpretation. If they have absurd intentions that are written in the law. Okay, that's fine if that's in the law. If it's like it's almost done. They've spent a whole bunch of money, shut it down. That's explicitly within the law, then that's dispositive. But if it's not in there and you just want to go and look back and look at. Okay, what were they arguing about when they passed a law, I think that's bogus. I'm against authorial intent. I think you do the constructive interpretation. But, yeah, you go west.

37:39 Mark: I don't know that we're in a position to agree with Shapiro here that the snail darter, a 3 inch fish of no particular scientific, aesthetic or economic interest. In other words, they're delicious.

37:49 Dylan: By the way, a law that says.

37:51 Wes: Are you serious?

37:52 Dylan: No.

37:54 Wes: Was there a time when we were eating these endangered fish? All right.

37:58 Mark: A law that says we want to preserve species despite their aesthetic qualities is not by definition absurd. You know, I don't know.

38:07 Wes: It's not absurd because of that. The absurdity is spending a gazillion dollars on something and having it almost be complete and then stopping right before it's complete because the impacts on the fish are largely already there and determined.

38:23 Mark: I just want to make sure before we get out of here that we consider. So this in hard cases, this comparison was made by Dworkin, a judge in chess. You want to give the example, Seth? Sure.

38:32 Seth: So he's making an analogy between a judge in chess and a judge in a judicial system. And he's saying if we can make the analogy that the legal system is kind of a closed system with a set of rules in a similar way that chess is. This really, I think, harkens back to. It's a way to try to illuminate the discretion piece. So the question is, let's say in chess there's a forfeiture rule which says that a player cannot intimidate their opponent.

39:01 Mark: Or is it more general that it's just they can't engage in unsportsmanlike conduct?

39:05 Seth: In unsportsmanlike conduct.

39:06 Mark: And the idea is, is intimidation unsportsmanlike? Which was clearly done at the master level.

39:13 Seth: The point is, it doesn't have to be intimidation. It could be like. Because ultimately what it comes down to is there's no explicit guidance in the rules of chess to tell the judge what counts as unsportsmanlike. There are going to be things which are obviously unsportsmanl, like standing up and pissing on the chessboard. Right. Would clearly be unsportsmanlike. But his point is that the judge has to construct a concept without having a preconceived or pre constructed notion of what counts as unsportsmanlike. In the case where the judge is called upon to adjudicate whether actions count as unsportsmanlike, that judge is going to bring in a whole bunch of contextual, historical, personal, perhaps academic information about.

Well, in a regular game this counts as unsportsmanlike. Or is chess like football? So is taunting considered unsportsmanlike in chess the way it is or is not in football? And basically in this particular example, Dworkin is kind of saying, I think, Mark, the upshot of this is that he's trying to bring strength to his argument that judges are using morality or.

40:18 Mark: Well, I don't know about morality specifically, but using their estimation, their theory of what the game is about.

40:24 Wes: Yeah, constructive interpretation.

40:26 Mark: Right. So if the game is about intellectual excellence, is intellectual fortitude in resisting someone else's interpretation, is that part of intellectual excellence? And I don't actually know what the decision was made about it. I don't think anybody was ever disqualified for merely grinning intimidatingly at his opponent. Like, I think the decision was made that, like, no, that is something that you should be able to stand up to, that you should just be able to concentrate on your moves and whatever. Whereas if the person was like, what are you, what are you gonna move now? You're gonna move if you're gonna like, if you're verbalizing like that, that is intrusive in a way that merely grinning is not.

41:04 Dylan: Or pulling out a gun and holding it to their head and saying, okay, there's one bullet in the chamber. Think very carefully about how you're going to move next. I mean, let's have real intimidation here, Mark.

41:15 Wes: I mean, yeah, these nerds aren't just going to be, be able to physically hit each other.

41:22 Mark: I'm not touching you. I'm not touching you.

41:24 Seth: That wouldn't be a hard case, Dylan. The grinning is a hard case. That's the point.

41:29 Dylan: I do think it's a good example. I mean, Wes brought up at the very beginning this idea of principles and meta principles and stuff like that. And I think this is a good example of how you understand that a game actually works. I think you pretty quickly get into there is some version of fairness that's at play in a game in order to have the game actually work, otherwise the game breaks. That's kind of an intellectual exercise. Well, if you don't have fairness, where fairness is sort of equal following of the rules in a kind of plain and transparent way, then it's not really a game anymore, it's something else. And intimidation goes in that direction.

42:02 Wes: Right.

42:03 Dylan: And then the judgment becomes whether it is intimidation or whether it's just part of the dynamic of the game itself in its own manifestation. And, Mark, I think you have a good example of.

42:14 Wes: Yeah, I think we need to. In interpreting the law, we really do need to look to purpose. Right. In the same way, we'd say, well, what is a chess? What is it? What is it? It's a game, therefore, with rules. Therefore, what it is depends on what it is for. And if we were Aristotelians, we would say that that's always the case in a way. But what it is depends on what it is for, and we have to take that account. Which, again, I don't think means necessarily taking into account the intentions of legislatures. I mean, ultimately, the end of the. Shapiro wants to defend positivism by saying, we are still interested in social facts, and those social facts are the intentions of the designers of the whole system.

So we figure out what they think the system is for. Which I don't think that's right, because I think we can actually derive the purpose of the system from the way it historically has actually functioned. But anyway, that's a whole other dispute. But I think this idea of the purpose of the system is important.

43:10 Mark: You know what? Shaftesbury would say that the purposes in the humans who design the system are reflected in the purposes of God, ultimately. So there you go. That's the Archimedean point. But now, Seth, you say the sensible thing that you were going to say.

43:22 Seth: No, I wasn't going to say anything sensible. What I was going to say is, if we take that tact with us, what we'll end up with is, at least in the case of the American judicial system, will end up right back in the Nazi, the racial injustice and all that stuff.

43:36 Mark: Another just funny thing that Dworkin brought up was, what game are we playing? Are we playing scorer's discretion? Is that the name of the game? Even if it's the scorer or the umpire, the judge who's making the final decision, the game is not scorer, is discretionary. That would be a whole different game that we'd be all like, let's bribe the score scorekeeper. They're the ones that are determining ultimately whether something counts as a point or not.

43:59 Dylan: Yeah, I'm glad that we're having the episode in two episodes on going back to the Dobbs decision, and what was the supervening context was unenumerated rights is unenumerated rights.

44:12 Mark: By Dworkin that were read another 50 fucking pages of Dworkin.

44:16 Wes: It's fine.

44:17 Dylan: It's not okay.

44:18 Mark: Okay.

44:18 Dylan: But it'll be. I think that this question of principles and the balance of conservatism versus simplicity and whether there are even higher level principles that one would rightly understand as the guiding ones, and whether they are historically oriented like that. There's a principle of maximizing freedom associated with the American Constitution or not. Those, I think, are going to be super interesting and a direct continuation of what we're talking about here, as is

44:48 Mark: probably Blood Meridian, which you are all talking about, by Cormac McCarthy next time without me.

44:54 Wes: Well, there is a judge in Blood Meridian, so we can. I think our talk about the law will actually be useful for that book.

45:02 Dylan: But I was thinking about exactly that while I was reading it. Like, there's something strangely, uncomfortably coincidental about that. Yes, and it is a complete coincidence that we're reading Blood Meridian in the weeks after Cormac McCarthy just came out with a new book called Passengers. Actually, there's two of them. They published a chapter in the New York Times, or a section of the chapter.

45:28 Wes: What is it about?

45:29 Dylan: Passenger is about. Well, at least the section I read was about a character who's a treasure diver, treasure recoverer. But there's a review of it in the New York Times as well.

45:43 Mark: All right, thanks everybody, for listening. Let us know what else you want us to talk about. Email us through the website Arson or pel at partialexaminedlife. Com. You could reach out through Facebook, through Twitter, follow us on Instagram, LinkedIn, wherever you like. Thanks, everybody, and good night.

46:02 Wes: Good night.

46:03 Seth: Good night.