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Chapter four Is Law Determined by Morality? The idea that the law consists of authoritative directives has been met with considerable skepticism over the last few decades. Many legal philosophers have argued that the overall content of the law is much more diverse than content that is communicated by legal authorities. In particular, it has been argued that moral considerations can sometimes determine what the law is. The content of the law, according to these views, is partly deduced by moral (and perhaps other types of evaluative) reasoning. So this is the challenge I want to consider in this chapter. We will take a closer look at some of the main arguments purporting to demonstrate that law cannot be separated from morality. I will try to show that there are several important insights that these arguments illuminate, but that eventually they fail to prove that legal content depends on moral truths. Judicial Discretion and Legal Principles H.L.A. Hart clearly recognized that his views about the nature of law entail that the law is bound to run out. It is inevitable, he argued, that cases would come before courts of law that are not settled by the existing law. Law is a finite set of rules and directives , and those rules cannot possibly determine an outcome about every possible case that would need some legal resolution. Since judges rarely have the option of not deciding a legal case they adjudicate, it is inevitable that some cases that they have to decide would require them to create, or at least modify, the law that would settle the case. Therefore, when such an unsettled case comes before a court of law, the decision judges reach cannot be 85 Is Law Determined by Morality? described as one that applies the law, because there is no relevant law to apply. In such unsettled cases, the court’s ruling amounts to a modification of the law; it is an act of creating new law, akin to other familiar ways in which law is created or modified by legislatures and other legal authorities. This idea, that law is bound to run out—and therefore that judges would need to participate in the creation of new law by way of judicial legislation—has been labeled the doctrine of judicial discretion. In a famous article criticizing Hart’s theory of law, Ronald Dworkin has argued that the doctrine of judicial discretion is fundamentally flawed.1 The gist of Dworkin’s argument is simple: Hart wrongly assumed, Dworkin claimed, that the law consists only of rules. But in addition to legal rules, which are typically enacted by legal authorities (as Hart assumed), there is another type of legal norms, which Dworkin called legal principles, which do not derive their legal validity from any particular enactment. Legal principles gain their legal validity by a process of reasoning, including moral reasoning, and not by decree. In order to understand Dworkin’s argument, it is essential to realize that there are two main conclusions he wanted to draw from the idea that there are legal principles: first, that the law does not run out, and therefore judges do not have the kind of discretion Hart envisaged; and second, that there is a distinct class of legal norms that cannot derive its legal validity from Hart’s rules of recognition. Underlying both of these conclusions is the idea that the legal validity of principles partly, but necessarily, depends on some truths about morality; it is partly a matter of moral truths that some norms are legally valid and form part of the law. Let me briefly explain these points. Dworkin begins the argument by suggesting that the distinction between legal rules and legal principles is a categorical one: Rules operate in a kind of “all or nothing” fashion; if a rule applies to the circumstances, it determines a legal outcome. If an outcome is not determined by a rule, then it must be because the rule does not really apply to the case at hand. Contrary to this, principles do not necessarily determine an outcome; if a principle applies 1 Dworkin, “The Model of Rules I,” in Taking Rights Seriously, chap. 1. 86 Chapter Four to the circumstances, it only provides a reason to decide the case one way or the other. Principles have a dimension of weight: The reasons they constitute may weigh more or less under the relevant circumstances, depending on various considerations.2 To illustrate , consider, for example, a...


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