Interviews with Legal Philosophers (1): Kenneth E. Himma
Autor: André Coelho | Publicado: 2014-02-26T05:25:00-08:00


(First Part)



Kicking off my series of interviews with some representative
thinkers in legal philosophy (yes, many others will come, just wait for it!), this blog brings to your reading the flair, the perspicuity
and the brightness of Prof. Kenneth E. Himma. Kenneth is Professor of the University of Washington, one of the prominent legal philosophers
of our time and one of the main proponents of inclusive legal positivism. His
books, book chapters and articles not only help us to get view and direction amidst
the wilderness of much academic production in the field but also advances some
of the most clear and precise (and never boring) criticisms and proposals available today. It is a great honor for this blog to be the channel through
which the explanations and ideas articulated below come to the general public.
What we have now is only the first part of the interview, the first three questions
and answers from the total of six ones that we will soon deliver. The questions (in italics) have been conceived taking in consideration the interest and needs particular to the Brazilian context. I hope you
all are just as much excited about it as I am.
1 – I would like to depart from a point which is still familiar for most of the students and professors of legal philosophy in Brazil, which is the Hart-Dworkin debate. What is your personal understanding on what the debate was about? And where do you stand in the descriptive/normative spectrum of legal theory?Both Dworkin and Hart took the debate to be one between an anti-positivist and a positivist. Dworkin’s early works criticized a number of what he took to be positivist doctrines. He attributed to positivism and criticized the following claims: (1) judges have a quasi-lawmaking discretion; (2) the law consists only of rules (not principles); (3) the criteria of validity are exhausted by conventional norms; and (4) there is no conceptual connection between law and morality. Dworkin’s criticisms forced positivists to clarify a number of their positions having to do with the four claims above, and contributed a great deal to the shape that contemporary positivism takes. His later work in conceptual jurisprudence, especially Dworkin’s masterpiece Law’s Empire, articulated what he took to be a third conceptual theory of law – constructive interpretivism.


According to Dworkin’s view, the law includes not only the rules and standards that are promulgated by legislatures and courts but also the principles of justice and fairness that show those rules and standards in the best moral light, which, for Dworkin, would involve providing the best possible moral justification for state use of coercive enforcement mechanisms. He continued to deny that the criteria of validity (or “grounds of law,” as he calls them) are exhausted by conventional (or “social,” as Hart calls them) rules – a conclusion he tries to justify on the strength of the famous (or infamous) semantic sting argument – throughout the later stages of his career. I find so much of what Dworkin has to say about adjudication and judging compelling if not interpreted as expressing conceptual claims about the nature of law.



Construed as a theory of how judges morally should, and characteristically do, decide cases, Dworkin’s views are eminently plausible, as far as my ears are concerned. Judges should decide hard cases, as a moral matter (on my view), by finding the decision that most nearly justifies the use of state coercive enforcement mechanisms. But construed as a conceptual theory of law, Dworkin’s “third” theory seems no more plausible than the strongest forms of natural law theory. Dworkin criticizes, for example, the Supreme Court decisions upholding “Fugitive Slave laws” that required people to return escaped “slaves” to their “owners” as being a judicial mistake from the vantage point of his theory. The problem is – and I might be terribly confused about this – that if the law of a community is, as a conceptual matter, the statutes and judicial declarations that furnish paradigmatic instances of law, taken together with the principles that show these existing rules in its best moral light, the court decisions upholding the law were not grounded in the law, as they should be, and do not count as law. Similarly, if construed as a conceptual theory of law, Dworkin seems committed to claiming that, when judges reverse precedent and announce a conflicting rule, one of the rules is not (or was not) law at the time. Such claims are so difficult to reconcile with ordinary legal practice that they seem inconsistent with the idea that it is our concept of law that is of interest. Our legal concepts, as Raz points out, are shaped by our institutional practices, linguistic and legal; for this reason, Raz holds (and I agree), we cannot be systematically mistaken about the content of our concepts – and Dworkin’s theory seems to suggest that we are. 2 – One of the reasons why many students and professors of legal philosophy in Brazil are oblivious of the recent developments in the analytical tradition is that they have certain misconceptions about legal positivism that make them think that this is an old-fashioned and obsolete legal theory. “Legal positivism” is often used derogatorily, naming a straw man conception that would want to strip the law of moral content, deny the existence of legal principles, defend textualist interpretations of legal sources etc. Can you give us a more accurate account of what legal positivism really stands for?Positivism is a theory that explains the nature of law. What it says, in essence, is that law is a social product all the way down. The content of the rules both that regulate the behavior of citizens and that regulate the behavior of officials in their capacity as officials is determined by social processes. Law is, as a conceptual matter, manufactured by human beings through certain social processes. This implies nothing with respect to theories of statutory or constitutional interpretation. The rule of recognition defines the things officials must do to create or change law; the rule of recognition could contain principles that require a textualist approach to constitutional interpretation or that require an approach that looks to identify the morally best interpretation. Nor, for that matter, does positivism imply anything with respect to whether judges have or do not have a quasi-lawmaking discretion; one cannot answer that question without deciding whether hard cases involve a gap in the law. If so, then it looks like new law is being created in a hard case – no matter what your theory is. If not, then one can hold that new law is not being created in a hard case. Both options are consistent with positivism because positivism does not, at least, purport to say anything about what distinguishes hard cases from other cases.There is a sense in which one version of positivism has some implications that look like some the claims you describe above that are offered as criticisms of positivism. The exclusive positivist denies that morality that can be incorporated into the law (well, strictly speaking, the exclusive positivist denies only that morality can be incorporated into the rule of recognition). In one trivial sense, this “strips the law of its moral content” – namely, it precludes that the law can incorporate moral content this way. Moral considerations cannot be part of the law, on this view.But this does not have anything remotely resembling the practical implications that seem to motivate detractors of positivism. For example, the exclusive positivist does not deny that judges can have a legal duty to decide cases according to the morally best interpretation of the relevant legal materials. The exclusive positivist must say that the relevant moral considerations are not a pre-existing part of the law; that much is surely true. But that doesn’t imply anything that would strip the law of its moral content. As long as judges have a duty to decide cases in a certain way, the law will have some favorable moral qualities. The question of whether the relevant moral principle was already part of the law before it was cited to justify a holding is an interesting one, but not much turns on it; in particular, answering that question will not tell us anything about the morality of the content of the law. In fact, I don’t think positivism can tell us anything of interest about what judges or legislators should do. Those questions are left to theories of legitimacy to answer. Positivism is a theory of legality (i.e., what counts as law), and not a theory of legitimacy (i.e., what qualities law has to have to be legitimately enforced by coercive means). I take it, following Austin, that the question of what the content of the law is and the question of what the content of the law should be are two distinct questions that require different methodologies to answer.3 – Many students and professors of legal philosophy in Brazil are not familiar with the exclusive/inclusive dispute in contemporary legal positivism. Can you give us a brief characterization of each position and your personal reasons to believe that inclusive legal positivism is a superior conception of law?The conceptual foundation of legal positivism consists in three commitments: the Social Fact Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts that the existence of law is made possible by certain kinds of social fact. The Conventionality Thesis claims that the criteria of validity are conventional in character. The Separability Thesis, at the most general level, denies that there is necessary overlap between law and morality.While the Separability Thesis thus implies that there are no necessary moral criteria of legal validity, it leaves open the question of whether there are possible moral criteria of validity. Inclusive legal positivists (also known as soft positivists and incorporationists) believe there can be such criteria; that is, they believe there are conceptually possible legal systems in which the criteria for legal validity include (or incorporate) moral principles. Prominent inclusive positivists include H.L.A. Hart, Jules Coleman, W.J. Waluchow, and Matthew Kramer. Exclusive legal positivists (also known as hard positivists) deny there can be moral criteria of validity. Exclusive positivists, like Joseph Raz, Scott Shapiro, and Andrei Marmor, claim the existence and content of law can always be determined by reference to social sources.The inclusive positivist position is a very weak one, and the exclusive positivist position is a very strong one. The inclusivist says no more than that it is possible for a legal system to have moral criteria of legality; in other words, the inclusivist claims that the idea of moral criteria of legality is not incoherent (in the sense that the idea of a married bachelor is incoherent). That is a very weak claim: out of the uncountably infinite number of possible worlds there are, at least one has moral criteria of legality. The exclusivist claim is much stronger: none of the uncountably large number of possible worlds in logical space has moral criteria of legality.I think that none of the exclusivist arguments against inclusive positivism works – and have published a number of papers criticizing the best arguments against inclusive positivism, which include Joseph Raz’s work on authority and Scott Shapiro’s somewhat related work on the rule guidance. The papers challenge Raz’s views that law necessarily claims legitimate authority (see this one&nbsp;and this one) and that the normal justification thesis states a plausible principle of moral legitimacy (in that one). I have also published a critique of Shapiro’s argument that inclusive positivism is inconsistent with the Hartian view that law makes a practical difference in deliberations about what to do (as you can see here). I have also published a monograph on the inclusivist-exclusivist debate in Spanish that includes a translation of revisions of the original papers. I am expanding the book, which is under contract with Oxford University Press. (See informations about it here).



(To be continued)