In my previous post (which few people responded to*) I described Hart’s theory of law, gave some criticisms and gave my own take on things, which all things considered is still a legal positivist account of law. From this post on, I will be discussing Natural Law theories. As somewhat of a legal positivist, I will try to give criticisms of these theories where appropriate and try to show either where they go wrong or where, even if accurate, they fail to disprove legal positivism.
Today, we talk about Ronald Dworkin’s theory of adjudication. Dworkin was a student of Hart and his theory is very much a response and modification of Hart’s theory. To recap:
A law is any rule that is part of a legal system. A legal system is one that consists of the union of primary and secondary rules. Primary rules are our familiar coercive rules, the paradigmatic case being those rules found in the body of criminal law. Secondary rules are rules that pertain to primary rules either immediately or through other secondary rules. The secondary rules include private and public power conferring rules, rules of recognition and rules of succession among others. [emphasis added]
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In my previous post in this series, I gave a rough outline of Austin’s views and a number of criticism levelled against it. Now, I’ll reveal my hand: All those criticisms were levelled by HLA Hart in his book: The concept of law. Hart’s theory of law is therefore founded on the very same criticisms made of Austin’s theory. In this post, I’ll quickly gloss over the criticisms and use those criticisms as a springboard from which I can describe Hart’s theory. After describing Hart’s theory (which I think is mostly right), I will point out the one or two differences I have with Hart and develop my own theory of law.
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This is not my usual beat, but hey, no one seemed to bring this up so….
Jenna Talackova has been disqualified because according to Miss Universe Canada “She did not meet the requirements to compete despite having stated otherwise on her entry form” Of course, Ms Talackova is an MtF post operative transsexual. And while Miss Universe Canada has not provided further information about what the alleged discrepancy was, it is not unreasonable to infer that she was disqualified merely because she has a Y chromosome. None of this is to say that she is winning material, but she is at least finalist material. Or at least the judges thought she was. The thing is this: The fact that she probably would not have won is irrelevant. What chromosomes one has and what gender one is, while statistically associated, are not necessarily connected. Someone can be male without having a Y chromosome and someone can be female without having two Xs. People can also be of varying genders that don’t neatly fit into male or female. That someone identifies as female and presents as female should be sufficient to qualify that person for most intents and purposes (there might be some medical exceptions) as female.
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I know that this post is going to get me into lots of hot water with a number of guys (which I mean in the most gender neutral way) at the league here whom I deeply respect. Nevertheless, I want to see how far I can run with this. The last time I posted, I raised a meta point about whether I could say that liberals should or shouldnt support some policy X or Y. My reason for believing why I could was rightly identified by many commenters as following from the notion that liberalism is not just about what many self identified liberals believe, but being based on a certain set of principles.* Stillwater gets me very well**.
liberalism is defined by a set of a priori and antecedent commitments, so liberal policy follows trivially from them
The tough question is how do we go about picking those principles? After all, it’s certainly the case that not just any set of principles will do right?
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I know it’s election year for you guys and emotions are high and tempers are short. For our own health, sanity and for the sake of the community here, I appeal to the League to make an active effort to calm down. So instead of doing things that make each other angry, why don’t we try to make each other laugh. Let’s cheer each other up with jokes. Bonus points for originality. I’ll start off.
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Maribou 
James K 
Rose 
Naima Van Swol 
Matthew 
Kyle Cupp 
Tina Wade 
Mike Schilling 
Jaybird 
