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 …