In the past I have written a couple of posts about the argument for originalism based on the idea that the original meaning of the Constitution is the law. In this and my next post, I will discuss this issue in the context of H.L.A. Hart’s theory of the law.
The simple version of the argument that the original meaning of the Constitution is the law is problematic. In the United States, people are imprisoned every day based on laws that violate the original meaning of the Constitution. Thus, if the original meaning of the Constitution is the law, one might ask in what sense it is the law, since that “law” is not being enforced.
Perhaps the leading way to understand what the law is, in the Anglo American legal world at least, is to consider H.L.A. Hart’s The Concept of Law. Hart believes that the rule of recognition sets forth the criteria of legal validity for creating, changing, and adjudicating law. Thus, if originalism is the law, then that would be the case in virtue of it being required by the rule of recognition.
Where then do we look for the rule of recognition? Hart believes that the rule of recognition represents a convention among officials to regard its criteria as standards that govern their behavior as officials. Thus, the rule of recognition would reflect the views and behavior of judges and other officials as to what the law is.
If originalism were the law, then according to Hart’s theory, it would be required by the rule of recognition. Judges and other officials would believe that only the original meaning was the law.
The problem, of course, is that most judges (and other officials) do not regard only the original meaning as the law. In fact, the dominant view, at least until recently and probably still the majority view today, is that nonoriginalism is a perfectly acceptable way of adjudicating cases. Based on the prevalence of nonoriginalism, one might even argue that originalism is illegal.
In this first post, I will explore the idea of the rule of recognition, with particular reference to whether it forbids originalism. After concluding that the rule of recognition allows originalism, in my next post, I will come back and discuss the possibility that the rule of recognition requires originalism and therefore that originalism might be the law.
One of the peculiarities of the divide between the Anglo American world and that of Continental Europe is that positivism has taken two different forms. In the Anglo-American world, H.L.A. Hart is the key figure and the Concept of Law has taken on an extraordinary importance. On the Continent, however, Hans Kelsen is the most important positivist.
One important question is why there should be this divide. At first glance, it seems like an example of prejudice or chauvinism – each area prefers its own. Of course, people on each side might argue that their champion really is better – but that begs the question why each side so strongly prefers its own figure.
While I have read Hart, I have only read small portions of Kelsen. But reading this much of Kelsen reveals that his writing is in the style of much continental philosophy, which makes it quite hard for Anglo-Americans to understand (apart from translation problems). Continental writing, especially from the German speaking countries, is often filled with abstract language that is hard to understand, and to people from the Anglo-American world, often comes across as vacuous.
I have often wondered about this aspect of Continental writing when reading Friedrich Hayek, whose works I know quite well. For example, his discussion of a spontaneous order is an important advance, but it is often vague and unclear. It has taken many subsequent articles, by Anglo-American types and economists, to clarify it. I can’t tell you how many times I have been reading Hayek and have thought, “an example would really help here,” but rarely is one provided.
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We were not aware at the time that they were twilight years, that time just before Roe v. Wade was decided, when statutes on abortion were sustained in the courts and only occasionally struck down. That is in part why Roe v Wade came with a jolt of surprise. In one case, just a year…
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In Legality, Yale law professor Scott Shapiro attempts to answer the question “What is law?” From the outset, he makes clear that his effort is a work of analytical jurisprudence, i.e., one “not concerned with morality” (3). But unlike much analytical jurisprudence, Shapiro’s approach takes seriously not simply what legal norms are, but the organizations that generate them. A central premise of the book is that “we cannot understand what laws are unless we understand how and for what purposes legal systems produce them” (7). Despite this concern for purposiveness, Shapiro places himself squarely in the positivist camp—that is to…