Law is Inherently Normative, Not Moral: Hart, Dworkin, and the Rule-Following Paradox

51 Pages Posted: 27 Aug 2018 Last revised: 22 Jun 2020

See all articles by Jordan Perkins

Jordan Perkins

Columbia University, Department of Political Science

Date Written: August 16, 2018

Abstract

What does it mean to give a legal interpretation? And, more specifically, when legal practitioners disagree about the proper resolution to a legal question, what are they actually arguing about? This paper creates a framework for answering those questions. In the first section, I develop a rudimentary model of legal reasoning: the act of legal interpretation involves selecting a set of mutually agreed upon 'axioms,' statements of legal rules which are clearly relevant to the situation at hand. These axioms are then aggregated into an overall legal rule which decides the issue in the case, in a process akin to logical derivation. In the remainder of this paper, I argue that this model is defective, and in ways which shed light on the concept of law debate which has descended from the Hart-Fuller and Hart-Dworkin exchanges. With reference to the rule interpretation problem discussed at length in Wittgenstein's Philosophical Investigations, I suggest that something 'more' must be added to the set of legal axioms applicable to the case in order to develop anything like a uniquely 'correct' outcome. This something, I argue, is an inherently normative standard -- one that provides an 'ought' under which rule candidates are to be evaluated. In the final section of the paper, I argue that this view is much like, but not identical to, Dworkinian constructive interpretation. I argue that a legal constructive interpretation is not, contra Dworkin, intrinsically 'moral' in any immediate sense. Rather, the normative standard to be used is that intrinsic to the act of lawmaking which produced the background legal propositions of importance. I then suggest that this understanding illustrates some conceptual problems for both the exclusive and inclusive legal positivist frameworks.

Keywords: Jurisprudence

Suggested Citation

Perkins, Jordan, Law is Inherently Normative, Not Moral: Hart, Dworkin, and the Rule-Following Paradox (August 16, 2018). Available at SSRN: https://ssrn.com/abstract=3233005 or http://dx.doi.org/10.2139/ssrn.3233005

Jordan Perkins (Contact Author)

Columbia University, Department of Political Science ( email )

New York, NY
United States

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