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The Hart/Devlin Debate
March 16, 2006 12:46 PM   Subscribe

The Hart/Devlin debate. One of the primary issues in the philosophy of law was addressed in a dispute between HLA Hart and Lord Devlin. The issue is to what extent morality can be embodied by the law. It is a debate which continues today.
posted by dios (18 comments total) 4 users marked this as a favorite

 
Hate to do this, Dios, because the subject of the post is something that's dealt with all the time in PoliSci (and is fascinating)— but can you work on finding links that aren't PDFs? They're an ungodly pain in the ass on my computer.

(Feel free to delete this comment if it proves to be a derail).

More substantively— The inherent problem with trying to find congruency in morality and law is that laws must be posited as essentially either/or statements, whereas morality is almost always situational (except on issues not really worth debating).
Further, if I can get a little post-structuralist, the irreducible plurality of modern liberal democracy means that there is no Utopia (ignore the double negative) that can be constructed using uncontestable premises, and no way to create those Utopias without destroying the variance that is freedom.
posted by klangklangston at 1:26 PM on March 16, 2006


I haven't looked at the links yet, but it might be more accurate now to say that it's the Hart/Coleman - Raz - Dworkin debate? For those of you who're interested, take a look at the Stanford Encyclopedia entries on Legal Positivism as well.

I'm a bit of an amateur here, but my sense is that the debate now has three prongs: (1) the "natural law" position of Ronald Dworkin, the most famous legal academic alive, who believes that judges should make recourse not to positive law (the textual specifics of statutes, for example), but to a philosophical analysis of principles. This has been criticized for being impractical (judges aren't philosophers), non-legal (Plato isn't a democratically warranted source of legal authority), and not descriptive of what judges actually do. (2) soft positivism embodied by Coleman, who says essentially that morality may be a criteria for law, but is not a sufficient condition for law. (3) and Joseph Raz who shifted the emphasis on the field from morality versus law to the nature of legal authority. Whatever law is, Raz argues, it must be something that has the authority to guide the decisions of citizens. As a result, morality is irrelevant: if law duplicates it, then morality does not a practical difference; if law does not follow morality, then morality is not sufficient for law.
posted by kensanway at 1:35 PM on March 16, 2006


Also--and this is still from not having read the FPP--it's important to point out that American legal philosophy is (1) largely in the shadow of terms set out by Hart, (2) conducted largely by "real" philosophers, rather than legal academics, and (2) disconnected from both European legal philosophy (such as Hans Kelsin and Robert Alexy) and critical theory/critical legal studies.

Klang - Robert Alexy has an ambitious, formalistic theory of constitutional rights that argues for proportionality balancing as a way to both situationalize law to a context, while instituting issues of equality.
posted by kensanway at 1:42 PM on March 16, 2006


Fascinating stuff—thanks for the post (though I too get annoyed by unexpected pdf's).

I love this bit from the Devlin link:

I suspect, however, that what annoyed assorted silks and benchers was not so much that he had breached convention (if, indeed, he had) in writing about a trial over which he had presided as that he was, in the course of the work, rude about the prosecuting counsel, Sir Reginald Manningham-Buller, the Attorney-General, later Lord Dilhorne, the Lord Chancellor. He referred to him disrespectfully throughout as 'Reggie' and cast persistent doubt on both his intelligence and his application.


"Sir Reginald Manningham-Buller, later Lord Dilhorne"—there'll always be an England!
posted by languagehat at 1:47 PM on March 16, 2006


There's a fantastic recent book that discusses aspects of this subject at length, particularly how concepts of "shame" and "disgust" factor into the law.
posted by mykescipark at 1:47 PM on March 16, 2006


Okay, more unsubstantiated blather--

First of all, I'm not sure that law is an either/or proposition. In any case, Dworkin's (and Alexy's) recourse to principles, rather than rules, suggests a way of thinking about laws not in this way. Alexy's credited with thinking of norms not as on/off values but as optimization requirements. (I'd like to post more about Alexy, since I don't think I explained him very well, but I'm busy at work and my copy of his book is at home. There's an incredible summary of his book by Mattias Kumm (Sp?), an NYU law professor.)

Also, can you elaborate more on this?

Further, if I can get a little post-structuralist, the irreducible plurality of modern liberal democracy means that there is no Utopia (ignore the double negative) that can be constructed using uncontestable premises, and no way to create those Utopias without destroying the variance that is freedom.

I'm not sure I understand what you're saying, but I'm guess you're talking about anti-foundationalism? If I'm right, it might be helpful to point out that law as a construct differs from things like political principles, because we already know that laws are already warranted via democratic legitimation. However, this issue of uncontestable premises is a big one in constitutional law: both in the democracy deficit of the EU, the anti-majoritarian problem of American con law (unelected justices, a constitution that no one alive wrote or voted for), and the Grundnorm that Kelsen posits as the source of norms.
posted by kensanway at 1:47 PM on March 16, 2006


kensanway, thanks for your contributions. I would just respond to one quick point, and then I will leave the thread for everyone. I don't want to moderate it.

might be more accurate now to say that it's the Hart/Coleman - Raz - Dworkin debate?

I could very well made a post about that, if I wanted to. But I didn't. I wanted to post about this. However, I will note that if you read the links, which you admittedly haven't, you will see that most of the links in the last sentence (the one that says "the debate which continues today") bring up some of the more recent arguments in the debate, such as Dworkin's.

Many people have added to the debate-Raz, Dworkin, Feinberg, etc.-but I was referring to the original debate. I suppose I could have made a post about the entirety of philosophy of law. Or made a post to address all the competing theories of jurisprudence. But I didn't. I wanted to post about this. Which has been classically and still is known as the Hart/Devlin debate. It's like making a post about Boethius. Sure, there are people who have succeeded him and taken a role of prominence. But I submit that Boethius would still be a good topic.
posted by dios at 1:58 PM on March 16, 2006


Sometimes the only remotely moral option is illegal. Anyone can create a law, and there's nothing saying it has to make any sense whatsoever.
posted by nervousfritz at 2:04 PM on March 16, 2006


* In Sedona, Ariz., it's illegal to lie about your astrological sign.
* In Texas, it's illegal to threaten somebody with an UNLOADED gun. (as oppsed to loaded I guess)
* In Samoa, it's a crime to forget your wife's birthday.
* In Australia, it's illegal to name any animal you plan to eat.
* In Cannes, France, it's illegal to wear a Jerry Lewis mask.
* In New Jersey, answering a traffic cop who asks "Do you know why I pulled you over?" by saying, "If you don't know, I'm not going to tell you" is an automatic $300 fine.
* In Kentucky, it's illegal to paint your lawn red. (bought freaking time)
* In Portugal, it's against the law to pee in the ocean.
* In Connecticut, night watchmen are forbidden from drinking decaf coffee while working. (death penalty)
* In Vermont, it's illegal to pick your nose and stick the pickings under a table.
* In Tennessee, it's illegal to tell someone to quit smoking.
* In Oregon, donut holes must be at least an 1/8th inch in diameter.
* It's illegal to tear a phone book in half in Montana.
* In Arkansas, it's illegal for a woman getting married for the second time to wear a white wedding gown.
* In Pennsylvania, it's against the law to put a dollar on a string on the ground and yank it when someone tries to pick it up.
* In New York City, it's illegal for a restaurant to call it a "corned beef sandwich" if it's made with white bread and mayonnaise.
posted by Elim at 2:22 PM on March 16, 2006


The Law is the true embodiment
Of everything that's excellent,
It has no kind of fault or flaw,
And I, my Lords, embody the Law.

posted by Pallas Athena at 2:40 PM on March 16, 2006


* In New York City, it's illegal for a restaurant to call it a "corned beef sandwich" if it's made with white bread and mayonnaise.

How about with banana bread and cottage cheese?
posted by LionIndex at 3:31 PM on March 16, 2006


Dios-- Don't be such a dick ("if I had wanted to, I would have").

Kensanway-- "Robert Alexy has an ambitious, formalistic theory of constitutional rights that argues for proportionality balancing as a way to both situationalize law to a context, while instituting issues of equality."

That sounds like an excellent subject for an FPP. Hint.

As to what I was talking about, it's an argument that's laid out decently by a French writer named Mouffe (whose book I don't have on hand, so forgive me). The basic argument is one of anti-foundationalism or anti-essentialism, but based on an argument that comes out of post-structuralist political theory. The basic idea is that it is impossible to design a system in which the actors are free in a meaningful sense and in which they agree either with the stated goals of a society or the resolution methods unanimously. Mouffe actually tries to strike a balance between what she calls 'radical anti-foundationalism,' which she argues is closer to anarchy, and the liberal essentialism in which value statements like 'peace is good' are accepted as universal throughout society.

What it comes down to is that in modern democracies, any concept of binary rules by which a society can be administrated (if/then statements on law) have to be discarded in favor of 'zones of contention.'

Obviously, I'm explaining this poorly and should go back and look over Mouffe again (along with the other post-structuralist democratic theorists). But it IS a big problem within governmental structures, and can be tied to all sorts of other debates about the nature of authority and rights (and ended up turning our class on it into a bunch of Hobbesians after things were all parsed out. No one seems to like ambiguity.)
posted by klangklangston at 3:50 PM on March 16, 2006


it's an argument that's laid out decently by a French writer named Mouffe

Chantal Mouffe is actually a Belgian who's been working in London for the last twenty years or so.
posted by PeterMcDermott at 5:07 PM on March 16, 2006


Really? I could swear that the book I have that's from her was published in Paris. But I can't find the damned thing, so I guess I'll find out later. It definitely falls into the "Continental" school of polisci/philosophy though.
posted by klangklangston at 10:26 PM on March 16, 2006


And when you get right down to it, it's only fitting that the French take all the blame for Continental philosophy.
posted by nebulawindphone at 7:04 AM on March 17, 2006


Google caches PDF files as HTML. Here's an HTML-ized version:

The Hart/Devlin debate (page 53). One of the primary issues in the philosophy of law was addressed in a dispute between HLA Hart and Lord Devlin. The issue is to what extent morality can be embodied by the law. It is a debate which continues today.
posted by russilwvong at 10:18 AM on March 17, 2006


Russil, I kiss you.
posted by klangklangston at 10:46 AM on March 17, 2006


Google wins again!
posted by russilwvong at 2:29 PM on March 17, 2006


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