Law Commons^™

Indecisive Reasons For Decision, Eric J. Miller

Eric J. Miller

This paper provides a radical, new critique of Ronald Dworkin’s theory of law and politics. Dworkin's theory of law as integrity purports to show how judges can avoid indecision when deciding cases and select one right answer to every legal problem. The integrity thesis must avoid two sources of indecision. Competing justifications could be equally good or incommensurably good: in either case, there will be multiple answers to the legal problem, so no unique right answer. Dworkin’s solution is to say that, in either case, the judge can just choose. Having chosen, the judge is supposed to stand by his …

Incommensurability, Practices And Points Of View: Revitalizing H.La. Hart’S Practice Theory Of Rules, Eric J. Miller

Eric J. Miller

The standard reading of H.L.A. Hart’s practice theory of rules is that it failed to provide a sufficient normative basis for a theory of law. That standard reading rests upon a significant misunderstanding: that Hart has an exclusionary reason approach to law. Instead, Hart understands law to be a social practice, one capable of generating valid norms that not only block the operation of moral norms, but which are wholesale incommensurable with them.

Wholesale incommensurability entails that law, as a form of social practice, constitutes a discrete normative system in which the truth-conditions of legal propositions are distinct from the …

Indecisive Reasons For Action: Socrates, Not Hercules, As Judicial Ideal, Eric J. Miller

Eric J. Miller

Ronald Dworkin famously introduces the idealized judge, Hercules, to demonstrate how to identify one right answer for any legal problem. Since judicial disagreement makes sense, according to Dworkin, against the background of plural theories of the good, Hercules solves a particular political problem: how to avoid apathy or indecisiveness in choosing among competing theories. Dworkin's judge is supposed to stand by his or her political convictions in the face of competing, plural points of view. Choosing the one right answer is thus a method of political commitment.

My claim is that Dworkin is caught between a rock and a hard …

Judging In Bad Faith, Eric J. Miller

Eric J. Miller

Must judges apply the law “sincerely” or “in good faith?” H.L.A Hart famously argued that, if legal officials are to require conformity to the law from its subjects, they must accept the law as valid. Hart, however, stopped short of demanding that the personal motivations of legal officials match their public utterances.

In this article, I argue that a judge may be motivated to decide cases for reasons that have nothing to do with the law. Accordingly, the law is systematically de-centered from her calculation of how to decide. Legal norms operate only to constrain or justify her independently motivated …