Current Events, Academic Philosophy

Hart, Dworkin, and Trump

Two federal appeals courts have now held that Trump’s Executive Order temporarily banning immigration from certain countries is unconstitutional. The 4th Circuit thought that the EO was discriminatory, while the 9th Circuit opined that the President had exceeded the congressional mandate (recall that immigration has always been the province of Congress, not the Executive, so the President’s authority in this field is delegated authority.) It is unclear what will happen if the case goes to the Supreme Court.

I was and continue to be of the opinion that:
1) The EO is wrong and counterproductive.
2) The legal precedents, however, support the constitutionality of the order (I also think these legal precedents are dangerous and should be overturned.)

In these pages I suggested that those who purported to rely on precedent to invalidate the order were just doing advocacy, and that the public would be better served if courts and commentators candidly admitted that they were making up new law, that is, trying to overturn the applicable precedents.

Today I’d like to suggest a new angle. Whether the EO order is constitutional depends on your theory of law. If you are a positivist, then you cannot honestly argue that the EO is unconstitutional, because precedent strongly indicates the opposite. Herbert Hart, a leading positivist, argued that  legal propositions derive in one way or another from the legal materials as created by lawmakers. Moral reasoning, while important, is separate from legal reasoning. Hart, therefore, would have said that the EO is lawful but immoral, and that perhaps immigrants who break the law and sanctuaries who receive them are upholding a moral obligation that prevails over their legal obligation.

But if you are not a positivist, then moral reasoning is part and parcel of the law. Ronald Dworkin famously defended such a view. As against Hart, he argued that legal materials (the Constitution, statutes, judicial precedent) should be read in their best possible light. This means consistency, of course, but it also means making the legal materials be the best they can be. And by “best” he meant “the best they can be under the most plausible moral-political theory that explains he Constitution.” Such theory would then be part and parcel of law, and not, as Hart thought, something separate from it.

So, if you are like me and object to this EO, you are in better shape if you are a Dworkinian rather than a Hartian. If the best available moral-political theory entails the immorality of the EO, then the EO is not just immoral: it is illegal as well. (Of course, some will say that the EO is perfectly moral. For them the problem I identified doesn’t arise.)

The reason why the Dworkinian approach is not prevalent is that most lawyers are anxious to appear as objective positivists, as applying and not inventing law. That leads them to dishonesty, to pretend they are applying and not inventing law when they are, in fact, doing exactly that. I regard this as evidence that some form of natural law theory (Dworkinian or not) is superior to positivism.

  • King Goat

    I think it’s not clear that this case isn’t an Establishment Clause case as opposed to one about immigration powers. In other words, if you limit immigration, but do so based on religion, then what precedents control, the ones that give tremendous deference to the federal government in setting immigration policy, or the ones that say plainly that our government shall not enact policies which favor or disfavor based on religious criteria? Both the 4th and the 9th thought this case involved the latter.

    We’ve never had a case that involved the question of whether the government could use religious criteria to limit immigration. It’s a novel thing, and so I don’t think it’s obvious which precedents control here.

    • Fernando Teson

      Thanks, King Goat, always enjoy your comments. Unlike my friend Ilya Somin, I am not persuaded by Establishment Clause claims, The EC bans the government to favor any religion in this country. But things are different in foreign relations. Suppose there is a group, or a country, or a group of countries, that declares Islamic jihad on the US. The idea that we cannot take measures against foreign Muslim persons because that would mean discriminating against ine religions souinds hollow -imdeed childish- to me. It is like saying that the armed forces should have 50% of womwn even if that means losing the war.

      • Peter from Oz

        At the time the Constitution was founded ”religion” meant one of the various forms of Christianity. The Establishment Clause was a reaction to the contemporary problems in Britain. In fact the whole US constitution is an attempt to solve the problems of the UK constitution in the 18th Century.
        For example, one of the great debates in the British world at that time was the separation of powers. In Britain George III was said to be stuffing the Commons with placemen. Hence in the US no one who holds a post in the government can sit in Congress.

      • Sean II

        “It is like saying that the armed forces should have 50% of women even if that means losing the war.”

        Counterpoint: a nation which fails to practice gender equality doesn’t deserve to win wars.

        Also I have no idea what you’re talking about. Such diversity could only strengthen the military.

        Thirdly there is no need for war. People have a right to free movement, and they have a right to bear arms. Calling them “enemy soldiers” is no excuse for using force against them.

        • Fernando Teson

          Sure. I just say that IF a war is justified then a rational society should choose the best fighters, men or women, period.

          • Sean II

            Nuts. Half of all the belligerents who ever fought lost using some version of the principle (read: discriminatory code words) “best fighter for the job”.

            Plus, some men are physically smaller than some women, so physical size can’t be a valid objection to the mass enlistment of women.

            People once said that switching to an all-volunteer force would weaken the military. They were wrong. Which means those who now demur from switching over to an all-female force must also be wrong.

            Not to mention, there is an obvious correlation between gender equality and combat effectiveness. Nearly all of the world’s most powerful armies of the day all hail from relatively feminist nations.

            Have you even seen Wonder Woman?

          • Sean II

            Oh, and I forgot one:

            It’s true that some aspects of our military, as currently structured, aren’t as conducive as they could be for the absorption of new female cadres.

            The conclusion is obvious: we should levy the women first, and fix those problems later. But on no account should female recruits be excluded just because the armed forces aren’t in shape to receive them.

          • Peter from Oz

            That collection of posts was a great piss take

          • Sean II

            Now I am become Foley cath, destroyer of tropes.

            Each bad argument of course being lovingly modeled on bad arguments form the open borders collection.

      • King Goat

        The EC, as a textual matter, isn’t limited by the qualifier you add (and the writers of the Constitution knew how to put such qualifiers in as evidenced by other provisions that have them, e.g., the grand jury protection of the 5th, the Great Writ, etc.). I think it would be passing strange if the EC didn’t bar, say,, the U.S. from fully funding moderate mosques in Vancouver but barred the Seattle city government from allowing a privately erected crèche in a city park.

        I also don’t think fighting Muslim foreign enemies requires anything that would disfavor a religion any more than our domestic laws prohibiting honor killings do.

      • Farstrider

        “The EC bans the government to favor any religion in this country

        Apart from ipse dixit, what basis do you have for the qualifier in italics above? Because the text plainly does not support it. Also, insofar as the Muslim ban hurts American Muslims (like the plaintiff in the Hawaii case), it is favoring a religion in this country. So even if your qualifier had some basis in the text (and it does not), you are still wrong.

  • M Lister

    This is a nice post, Fernando. One complication that I’d add is that, late in his life (in the posthumously published “postscript” to The Concept of Law) Hart accepted a sort of so-called “inclusive” legal positivism, which holds that moral principles can be part of the law, but just are not necessarily part of the law. So, a particular legal system might incorporate moral principles as part of its legal system, but this isn’t necessarily the case. If we accept this approach, it’s open to the inclusive legal positivist to hold that the seemingly abstract moral language in the constitution (for example) is just that – a bit of political morality incorporated into the legal system, to be applied by judges in deciding cases as best as they can, without this going outside or beyond the law. This, at least arguably, would make these rulings consistent with positivism of one sort. (I would have to read the cases much more carefully, and think about the application of a good version of inclusive legal positivism more carefully, than I have to know for sure whether this would work here, but I think it’s not clearly wrong.)

    That said, many, perhaps most, of the best proponents of legal positivism tend to think that Hart had made a mistake in the “postscript” and that inclusive legal positivism isn’t a stable or coherent position. I don’t have a well worked out position on whether they are right or not. If they are, then your argument goes through more easily.

    • Fernando Teson

      Matt, thanks a lot. I can always trust you for sensible, insighful comments. You see, this is a rule-of-law issue. I think (and believe you agree) that courts have no business surprising litigants with fresh rules that are not derivable in any sensible way from the legal materials. I have taught foreign relations law for a number of years, and honestly believe that these decisions unfairly ignore the Supreme Court’s immigration precedents (precedents that I abhor, mind you!) But there is no reason to succumb to the positivist trap. If Hercules could have reasonalby believed that the unconstitutionality of the EO was indicated prior to the ruling, then we have no rule-of-law issue, A good lawyer could have predicted that the EO was inconsistent with the Constitution, interpreted in the light of the best moral-political theory available (just as a a good lawyer, in Dworkin’s famous example, could have predicted that a murderer will not take under the will, even if there was no specific statutory provision saying so.)
      BTW, I agree with your assessment of inclusive positivism.

      • Peter from Oz

        “If Hercules could have reasonalby believed that the unconstitutionality of the EO was indicated prior to the ruling..”
        Aye, there’s the rub. Hercules couldn’t have reasonably believed.

  • Lacunaria

    Which legal theory would you say was used in establishing the precedents that you abhor? Were they against the moral sensibilities of the judges at the time?

    Also, are you saying that “natural law theory” is superior simply because lawyers would stop being hypocrites if they embraced inventing law?

    • Fernando Teson

      Lacunaria: good questions. As to the first one, I think those precedents were based on the plenary power of the federal government to exclude aliens. This power knows virtually no limits. The moral sensibilities, then, accorded sovereignty a primary place. For reasons that are too long to explain here, I believe that was a mistaken theory. Law is about individuals, and the state’s value, whatever it is, is entirely secondary.
      As to your second question, the answer is yes. I much prefer difficult truths to socially useful lies.

      • Lacunaria

        I prefer truths to lies, too, but I think there is some useful truth _created_ by their belief in legal positivism insofar as it pressures them to conform to (or democratically change) the law rather than to judicially invent it.

        Do you agree that fidelity to the law would suffer if they gave up these pretenses?

        It’s hard to believe that it would suffer in only a moral direction. That’s the lure of the law — to stabilize morality.

        • Fernando Teson

          Maybe. But if so, consider the consequences for transparency. Courts lie, law schools also lie, as they simply sell persuasive rhetoric. Yet I’m an academic, and as as such I’m committed to the search for the truth. And the truth is, if you are right, that the law does not exist. We make it up as it goes and hope for the best.

          • Lacunaria

            Yeah, in that sense it only exists to the extent that we believe it exists, which is what makes disbelief that it retains a consistent meaning problematic.

          • Peter from Oz

            In your post in response to me, you seemed to be against the Courts’ decisions in the EO cases because you thought judges were making p law. Here you seem to be saying that it’s OK for judges to make up law.

          • Fernando Teson

            Peter:
            I am against the courts’ ignoring precedents that support the constitutionality of the EO. But I object to the EO as a matter of policy.
            On the other hand, I woud be more comfortable with a court’s overturning those preceedents (and thus invalidating the EO) on the grounds that a btoader, morally infused understanding of the Constitution allows them to do so.

  • Peter from Oz

    Do they teach equity in American law schools? Do the practice equity in US courts? Did Dworkin ever have a practising certificate?
    I ask these questions, because most lawyers could tell you that legal positivism is the perfect legal fiction, whilst Dworkin is the stuff of pipe dreams. Of course morals are included in law by equity and common law ideas of public interest. A criminal contract is unenforceable because the Common Law recognised that such enforceability would be against the interest of society. A Trustee must act in the interest of a beneficiary because equity has decided that this is the correct thing to do.
    But once this moral basis is in the law it becomes part of the law and ceases to be moral.
    I think Dworkin mistook the sources of law for the law itself. This reminds me of the oft made error of thinking that thinks like branding, licences, customer lists, premises, etc are each items of goodwill in a business, rather than mere sources of goodwill, all of which must be supplied to a purchaser if the purchaser is to be said to acquire the goodwill of the business.

    • M Lister

      “Did Dworkin ever have a practising certificate?”

      Well, Dworkin was a law clerk for one of the most famous court of appeals judges, and then worked at a big New York City law firm (Sullivan and Cromwell) for a couple of years, so he was clearly admitted to the bar (there’s no such thing as a “practicing certificate” in the US, but I assume this is the same thing as what you mean.) I leave the rest of your questions and comments aside, but this one would have been easily answered via wikipedia if you wanted.

      • Peter from Oz

        The question was rhetorical. My point was that Dworkin’s philosophy doesn’t reflect what actually goes on in the practise of law.

        • M Lister

          I think that you’re not properly understanding how Dworkin’s approach works. (Some of that is his fault. He’s not as clear about this as he should be.) Most of law consists of “easy” cases. (This is, of course, why so few potential cases go to trial.) Dworkin doesn’t have much special to say about these cases, but his view is completely compatible with “what actually goes on in the practice of law.” What he’s mostly interested in are so-called “hard cases”, ones where the straight-forward “legal” materials (in the exclusive legal positivist sense) seem to run out. In those cases, which are comparatively rare, Dworkin’s view isn’t obviously wrong, though of course it’s quite controversial. Fernando gives here a good account of how it might work. (Though, as Fernando also notes, if I understand him, it’s not completely clear that these particular cases should have counted as “hard cases” under Dworkin’s approach.) It’s a misunderstanding of Dworkin, however, to think that the way he talks about “hard cases” applies in a straight-forward or direct way to most instances of legal disputes. There’s a lot more that could be said about this, but it would require a lot more work than is really possible in blog comments, or that I have time for now.

          • Peter from Oz

            Thanks for your interesting post.
            I think Fernando is saying those who appluad the Courts’ decsions on the EO would be better off being Dworkians, because Dworkin thought that judges are justified in interpreting the law through a moral prism.
            But, then in a comment above, Fernando, agrees that the decisions in the EO case are unsound because they brought in moral questions.
            I always thought that Hart had the best of the argument, because he did concentrate on the practice of law, as murali284 states above.

        • Sean II

          It occurs to me that, along with the usual dichotomies between hard and soft sciences, STEM and humanities, MLA and APA, whatever else, etc. another helpful way to sort academic fields is: guru-driven vs guru-free.

          Biology is something we could call just about guru-free. In the simple sense that it doesn’t matter who you are, only what you’ve got. There’s no celebrity so celebrated that he could just foist bullshit or banality on his followers and make them applaud.

          Psych’s a good example of an area that used to be almost entirely guru dominated, but has lately escaped that.

          Econ is an indirect case, being dominated by guru-founded schools of thought but not so much by gurus themselves.

          Legal scholarship still look’s like a guru’s game to me, at least on the high end. Dworkin especially seems to get the righteous rebbe treatment, in the sense that he’s never wrong, it’s always that his critic “doesn’t understand the magnificent subtlety of what he was really saying”.

          Which is funny, if you think about it for an extra minute.

          • murali284

            Oh, Dworkin was wrong. (and he was wrong about a hell of a lot of things. Regarding this particular issue, a good critique of Dworkin is Ten Chin Liew’s Soundest Theory of Law. (Obligatory Disclosure: He was my masters’ supervisor, and I TA’d for his Philosophy of Law class afterwards)

          • Peter from Oz

            I like your dichotomy.
            I have often wondered why the US, unlike other common law jurisdictions, has guru law professors. It seems that some of these people still practise law whilst being professors.
            In all the other jurisdictions the last person you would go to for an opinion on th elaw would be a legal academic, as most of them have never practised law. The real experts are QCs and solicitors who are actually paid for their knowledge of the law.

          • Fernando Teson

            Guru law professors are everywhere.

          • Peter from Oz

            There may be guru professors of jurisprudence and legal philosophy everywhere, but as I said in general law academics in other common law countries are not held in such esteem as they seem to be in the US.
            I’m wondering whether this because your senior lawyers who are not on the bench don’t get a title, like Queen’s Counsel to bandy about. A lot of them become professors instead

          • Fernando Teson

            I have to agree. I would add that not just Dworkin, but positivists, too, play the guru’s game. Mainstream legal interpretation is something like: “My preferred outcomes can always be traced to authoritative materials. No exceptions.” This sounds like the Delphos oracle, not reasoned argument.

    • Fernando Teson

      Peter, thank you for the comment.Yes, for Dworkin the “material sources” of the law (as the Continental tradition calls them) are as much part of the law as enacted law. This move allows him to avoid the charge that judges make up fresh law. To him, judges derive rules from pre-existing principles. A good lawyer can predict that new rule, because in a sense it was not new!

      • Peter from Oz

        Isn’t the point that Judges use existing principles of law to work out a finding of fact based on the evidence? Simply put, the law evolves to meet new facts.
        New law is created out of old principles applied to new facts.

        • Fernando Teson

          The idea that law “evolves to meet new facts” is ambiguous.There is a rule-of-law worry about judges who make up new rules that are not faiiry indicated by the existing legal materials. Today is Trump the litigant who is unfairly surprised, and perhaps we can all rejoice in nhat. But I’m not sure you will like it if tomorrow someone defending her right in court is surprised by a court who says that the law evolved and the right doesn’t exist anymore.

          • Peter from Oz

            I should have mentioned that one of the most vexed issues in legal practice is the dividing line between a question of fact and a question of law. That is why the law evolves to meet new facts. The two are caught in a form of symbiosis that leads the law to change as judges have to deal with increasingly complex combinations of regulation, precedent and factual matrices.
            I have not read the judgments in the immigration ban cases. But on the basis of your post and the other commentary I’ve read it would seem that the judges did not let the law evolve to meet the facts but instead purposely altered the law to achieve a result they had always set out to achieve. From what I can see the judges, without precendent, have decided that they are allowed to consider the President’s motive, based upon his pre-election utterances, in determining whether the Executive Order is lawful. Past precedent would have led the observer to expect that it was only the effect of the Order itsel f that should be considered in cases such as this.
            Te interesting thing would be to read how the jusdges justified this. Did they cite precedent? If not, then they have, as you say, they have changed the rules withpout authority.
            I

          • Sean II

            “…allowed to consider the President’s motive, based upon his pre-election utterances.”

            Which makes it pretty obvious what’s really going on here: the court’s are enforcing one of our society’s most important and most consistently bi-partisan norms, the ban on political candor.

            Trump said “Muslim” when he meant Muslim. You’re not supposed to do that. If Hillary had said “extremists” before banning a bunch of Muslims, it would’ve been no problem. If Bush had said “evildoers”, no problem. If a Republicrat hybrid grown in a beltway laboratory had said “enemies of tolerance”, no problem.

            This thing only made it to court because the language of the political class needed defending, and the usual guardians – elected officials, media, think tankers – had so notably failed in their previous attempts to protect it.

          • Peter from Oz

            Many members of the chattering classes and their camp followers claim that it is essential that our political leaders must be a different breeed to the glad-handing, mealy mouther, baby-kisser from central casting whom we all conjure up in our mind’s eye when the ”politician” is mentioned. But taken all in all the left’s idea of ”different” is very superficial. Most of the politicians that the liberal/left provides us are ready to speak in the same old language that covers in banal platitutudes the slow death of common sense.
            That’s why they hate Trump so much. He actually is different. He’s not going to dance the dance in the way it has been danced in the past.
            That unsettles people of all political stripes. It’s as if an old telly programme, not a favourite, but something you’ve watched now and then for many years, has suddenly changed from a sci-fi serial to a cooking show.

      • murali284

        The problem with Dworkin is that sometimes, moral principles trumps pedigree. To give some background. Hart thought that finding what the Law is (and not what it ought to be) is a matter of looking at particular established sources like precedent, constitutional texts, statutes, unwritten legal traditions etc. Depending on the jurisdiction this may or may not bring moral considerations into play. But it doesn’t necessarily include nor exclude them. Thus, something is a legal rule just in case it fits best with these various sources. When things are indeterminate and we look to outside moral principles, we go beyond the law. On Dworkin’s account, morality is not just used as a tie breaker, sometimes if the rules we would get if we consider fit are too horrible, then a judge can sacrifice “fit” for “morality” and still not have been said to go beyond the law. The disagreement here is not entirely verbal, but as a matter of predictability, no matter whether we call it staying within the law or going outside it, if reasonable moral disagreement is a thing, then people couldn’t predict the outcome.

  • Horacio Spector

    Does “superior” mean “morally superior”? If so, the claim is tautological assuming deontological morality. Assuming consequentialist morality, it is a contingent matter, depending on the long-run institutional effects of allowing courts to appeal to their moral judgments. But perhaps “superior” only relies on a specific moral value or virtue, namely, transparency or candor. If so, it’s not clear that global lack of candor (involved in distorting the definition of law) is less serious than local lack of candor (involved in distorting the description of precedents and other positive norms).

    • Fernando Teson

      Horacio, gracias. By saying that natural law theory is superior to positivism (maybe the word “preferable” is better) I mean here that it blocks official lies by state officers, including judges. I am not necessarily arguing here that natural law theory is superior in the general deontological way, although I suspect this is true. All I’m saying is that a lawyer who says “look, the precedents support this EO, but the precedents are bad, we need to change them” is preferable to a lawyer who insincerely says “I’m not changing anything, this new rule follows from the precedents.” I’m not sure I understand your distinction between global lack of candor and local lack of candor.

  • Counsellor

    What seems to come through from all those words is what the legislation (not LAW) and the executive action taken in its execution OUGHT to be; rather than what it is.

  • Steve Smith

    It’s a wildcard for not philosophical reasons, John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, Elena Kagan are all direct apointees of Deep State Bolchevick agent Jamie Gorelick and her “Presidential beards”, Iran agent since at least 2004. https://www.justice.gov/opa/pr/schlumberger-oilfield-holdings-ltd-agrees-plead-guilty-and-pay-over-2327-million-violating-us Gorelick is the head of America’s Blackmail-Bribery network pushing criminal and Islamic and Communist invasion.

    And theyve been exposed, and Putin is not on their team, and large portions of the US military are becoming aware, my guess is most Supremes will die soon sans Kagan and Gorsuch, the next Gen deep state Commies.

  • Steve Smith

    Philosophically the US Constitution is an anti invasion charter, property rights charter and restraint of government charter, that’s all been disregarded in favor of trillions in bribery.