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No Easy Cases?

Published online by Cambridge University Press:  09 June 2015

Andrei Marmor
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Of all the various aspects of legal positivism, it is those bearing upon a theory of adjudication which have prompted its critics’ fiercest attacks. Legal positivism is taken to be committed to the thesis that a distinction exists between (so called) ‘easy’ cases—where the law can be identified and applied straightforwardly—and ‘hard’ cases—where the issue is not determined by the existing legal standards. Most critics are united in their rejection of this dichotomy, but divided by the two main routes they follow. The more familiar one, first outlined by Professor R.M. Dworkin, sets out to deny that hard cases are not regulated by legal standards. The other objection, and the one I wish to consider here, strives to show that the distinction itself is illusory since in all relevant respects, there are no easy cases as the positivist presumes.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 3 , Issue 2 , July 1990 , pp. 61 - 79
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1990

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References

I am indebted to Professor R. Dworkin and Professor J. Raz for their illuminating comments on a draft of this essay.

1. The most recent, and to my mind illuminating, positivist account which shows the necessity of easy cases is to be found in Professor raz’s analysis of the authoritative nature of law. He argues that the only way to acknowledge someone’s authority over another is to take his directives to be a reason for action which replace the reasons on the basis of which the authority was meant to decide. Hence it must be possible for the alleged subjects of the authority to be able to identify the authoritative directives as such, without recourse to the condiserations on the basis of which he was meant to decide. See Raz, J., “Authority, Law, and Morality”, (1985), 68 Monist 295 CrossRefGoogle Scholar. See also Moore, M., “Authority, Law, and Razian Reasons” (1989), 62 Southern California Law Review 827 Google Scholar (hereafter “Razian Reasons”) at 890893, where one of Moore’s objections to the Razian analysis of law is based precisely on the point that it rests on the possibility of thre being easy cases. Moore’s arguments are discussed in detail below.

2. Cf. Raz, J., The Authority of Law, (Oxford: Clarendon Press, 1979) (hereafter The Authority of Law) at 53–77.Google Scholar

3. As we shall see in detail below, the views which attempt to repudiate the distinction between easy and hard cases rest on the assumption that interpretation is always required to determine the applicability of a rule to a given set of facts.

4. Hart, H.L.A., “Positivism and the Separation of Law and Morals”, in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) 49–87 CrossRefGoogle Scholar (hereafter “Positivism and Morals”) at 63. (First published in (1958), 71 Harvard Law Review 593.)

5. It should be noted that the disagreements are irresolvable according to linguistic standards. There is nothing in the idea of vagueness to prevent agreement in judgments which is based on considerations not pertaining to the meaning of the concept-word in question.

6. Raz, J, The Authority of Law, supra n. 2 at 182.Google Scholar

7. For example, think of the difference between carrying out an order to continue an arithmetical series, say n + 2, compared with a more complicated one, e.g. 13 + n2 x 0.5, both of which would be ‘easy’ cases.

8. See: Moore, M. “The Semantics of Judging” (1981), 54 Southern California Law Review, 151 (hereafter “The Semantics of Judging”) at 155–163.Google Scholar

9. This should not be confused with a different thesis, namely, that the law of universal instantiation ((x)Fx infer Fa) ultimately mediates between the rule and its application. For a rejection of this idea see Baker & Hacker, , Wittgenstein: Rules, Grammar and Necessity, (Oxford: Blackwell, 1985) (hereafter Rules, Grammar and Necessity at 92–93.Google Scholar

10. Positivism and Morals, supra n. 4, at 67; see also Hart, H.L.A., “Problems of the Philosophy of Law” in Essays in Jurisprudence and Philosophy, supra n. 4, at 88–119, 100-106Google Scholar. (First published in Edwards (ed.) Encyclopedia of Philosophy vol. 6 at 264–276)Google Scholar

11. “Positivism and Morals”, supra n. 4, at 67.Google Scholar

12. Fuller, L., “Positivism and Fidelity to Law—A Reply to Professor Hart” (1958), 71 Harvard Law Review, 630, (hereafter “A Reply to Hart”) at 66Iff.CrossRefGoogle Scholar

13. Id. at 664.

14. Id, at 661–663.

15. Id, at 663.

16. Id, at 666.

17. Id, at 669.

18. 18. See the introduction to his Essays in Jurisprudence and Philosophy, supra, n. 4.

19. Cf. Hacker, P.M.S., Insight and Illusion, (revised ed.) (Oxford: Clarendon, 1986), (hereafter Insight and Illusion) ch. 6.Google Scholar See also McGinn, C., Wittgenstein On Meaning, (Oxford: Blackwell, 1984), (hereafter Wittgenstein On Meaning) at 29.Google Scholar

20. See Dummett, M., The Interpretation of Frege’s Philosophy (London: Duckworth, 1981), at 31–35, 48, 316,440.Google Scholar

21. See Baker, G. & Hacker, P.M.S., Wittgenstein: Meaning and Understanding—Essays on the Philosophical Investigations (Oxford: Blackwell, 1980) (hereafter Meaning and Understanding) at 225.Google Scholar

22. Wittgenstein, L., Philosophical Investigations, trans, by Anscombe, G.E.M. (Oxford: Blackwell, 1958), 2nd ed., (hereafter Philosophical Investigations).Google Scholar

23. Id., at 225.

24. This is not to imply that Wittgenstein would subscribe to Waismann’s analysis of ‘open texture’. See Baker, G. & Hacker, P.M.S., An Analytical Commentary On Wittgenstein’s Philosophical Investigations (Oxford: Blackwell, 1980), (hereafter “Analytical Commentary”) at 170.Google Scholar

25. Philosophical Investigations.supra n. 22, s. 187.Google ScholarPubMed

26. Id., s. 87.

27. Id., s. 65.

28. Id., s. 67. To be sure, it is not maintained by Wittgenstein that the instances of family resemblance concepts do not have any features in common to them all; but only that these are not defining features, namely, that it is not due to these features that we call these instances by the same concept-word. All games, for instance, might share the feature that they involve the activities of human beings; but this is not why we call, e.g., football, patience, and chess, ‘games’.

29. Fuller, L., “A Reply to Hart”, supra n. 12 at 665.Google Scholar

30. Id., at 667–668.

31. Id., at 666.

32. The term should not be thought to imply that the argument to be explored here dwells on Hart’s own ideas expressed in his inaugural lecture (reprinted in his Essays in Jurisprudence and Philosophy, supra n. 4 at 21–48). There he suggested that there is a kind of defeasibility endemic in legal language which renders it sui generis, a view which he seems to have abandoned shortly afterwards. See Baker, G., “Defeasibility and Meaning”, in Hacker, & Raz, (eds.) Law, Morality and Society, (Oxford: Clarendon Press, 1977) at 26–57 Google Scholar. (As opposed to Baker though, I do not find this thesis being restated in Hart, H.L.A., The Concept of Law.)Google Scholar

33. See Moore, M., “The Semantics of Judging”, supra n. 8 at 277–279 Google Scholar; see also his “Razian Reasons”, at 890–893, where the same objection is raised against Raz–s analysis of law.Google Scholar

34. Moore, M., “The Semantics of Judging”, supra n. 8 at 227.Google Scholar

35. Moore, M., “The Semantics of Judging–, supra n. 8 at 277.Google Scholar

36. Fuller, , “A Reply to Hart”, supra n. 12 at 664.Google Scholar

37. At some point, Fuller seems to be aware of these difficulties, when he suggests the following diagnostic observation: “I believe we can say that the dominant tone of positivism is set by a fear of a purposive interpretation of law and legal institutions, or at least by a fear that such an interpretation may be pushed too far. id., at 669. But since nothing of the sort has been suggested by Hart, one is bewildered about the source of this diagnosis, let alone, its accuracy.

38. Interpretation in Legal Theory, D. Phil. Thesis submitted to the University of Oxford, Hilary term 1989/90, ch.2. See also: Hacker, P.M.S. , “Language, Rules, and Pseudo-Rules” (1989), 8 Language and Communication 159 (hereafter “Rules and Pseudo-Rules”).CrossRefGoogle Scholar

39. Cf. Backer, G. & Hacker, P.M.S., Rules, Grammar and Necessity, supra n. 9 at84.Google Scholar

40. See Hacker, P.M.S., “Rules and Pseudo-Rules”, supra n. 38 at 162–165;Google Scholar see also McGinn, C., Wittgenstein On Meaning, at 119.Google Scholar

41. Cf. Baker, G. & Hacker, P.M.S., Rules, Grammar and Necessity, supra n. 9, ch. 5Google Scholar; see also: Pears, D., The False Prison-A Study of the Development of Wittgenstein’s Philosophy, vol. 2 (Oxford: Clarendon Press, 1988), (hereafter The False Prison) at 425.Google Scholar

42 Philosophical Investigations, supra n. 22, s. 142.Google Scholar

43 It is possible that many of Fuller’s arguments in his book The Morality of Law, (New Haven: Yale University Press, 1969)Google Scholar, Yale University Press, New Haven) concerning the “inner morality of law” as he calls it, can be accounted for along the lines suggested here; if so, it also suggests that, contrary to appearance, many of his theses are in fact reconcilable with legal positivism. But of course, this is a large topic which exceeds the interests of this essay.

44 Baker, G. & Hacker, P.M.S., Rules, Grammar and Necessity, supra at 91;Google Scholar see also Pears, D., The False Prison, at 468.Google Scholar

45 The following discussion will not dwell on Wittgenstein’s alleged rule skepticism as it struck Kripke. (see his Wittgenstein on Rules and Private Language, (Oxford: Basil Blackwell, 1982)Google Scholar Kripke’s interpretation of Wittgenstein has been repeatedly (and cogently) criticized by numerous writers. See for example Baker, G. & Hacker, P.M.S., Skepticism, Rules and Language, (Oxford: Basil Blackwell, 1984), (hereafter Skepticism, Rules and Language)Google Scholar. See also McGinn, C., Wittgenstein On Meaning.Google Scholar

46 Contra Kripke, Wittgenstein does not take a skeptical standpoint here: “if everything can be made out to accord with a rule, then it can also made out to conflict with it. And so there would be neither accord nor conflict here.” Philosophical Investigations, supra s. 201. This is evidently absurd not a skeptical standpoint which has to be taken seriously, supra n. 45.

47 Philosophical Investigations, supra n. 22 s. 199.Google ScholarPubMed

48 Baker, G. & Hacker, P.M.S., Skepticism, Rules and Language, supra n. 45 at 20;Google Scholar see also Pears, D., The False Prison, supra n. 41 at 500.Google Scholar

49 Philosophical Investigations, supra n. 22 s. 201.Google Scholar

50 To be sure, there is nothing unique to legal rules here; all rules can be formulated in language, including the rules of langauge itself.

51 Philosophical Investigations, supra n. 22 s. 87.Google ScholarPubMed

52 See Baker, G. & Hacker, P.M.S., Meaning and Understanding. supra n. 21 at 29–45.Google ScholarPubMed

53 See Philosophical investigations. supra n. 22 s. 87.Google ScholarPubMed