NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Eric Claeys, Professor of Law at Antonin Scalia Law School at George Mason University. In his scholarship, he studies theories of natural law and natural rights and their implications in property law. Professor Claeys’s main teaching interests include Property, Torts, Jurisprudence, and Intellectual Property. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Professor Claeys, in the last two episodes, we discussed Positivism. You compared and contrasted some of the Positivist premises with Natural Law principles. Is there any theory in between Positivism and Natural Law? ERIC CLAEYS: In our conversation, I've been saying that there's a basic distinction between natural law and positivism. I've been making broad contrast between natural law views and positivist views, and in a couple of times I've talked about a different categorization between non-positivists and positivists. And I've moved between the two of those, because there's one figure who doesn't fit easily into the natural law-positivist divide and that's Dworkin, Ronald Dworkin. Dworkin is a non positivist, he's probably not a natural lawyer. In at least one writing I know of, he's criticized natural law views. In contemporary American and English analytical philosophy of law, Dworkin gets pride of place as the main critic of all the positivists who dominated the debate, and Dworkin is not a fellow traveler with Thomistic Natural Lawyers, in the sense that he is not someone that sees laws having a nature. But he agrees with the natural lawyers in that he finds positivist accounts of law unsatisfying. He finds problems with positivist accounts of law in that they try to reduce law to its having been positive or being a matter entirely of social facts and social acceptance. So, Dworkin started writing after Hart's book The Concept of Law had been published and become very influential, and Dworkin challenged Hart and he challenged Hart's project where law could be conceived of in a positive manner, solely in terms of the internal point of view. And Dworkin in a series of articles in the late sixties and in the early seventies, introduced cases that were hard cases and the point that Dworkin was driving at in all these cases was something like this. Look, when the lawyer is trying to decide a hard case like this, the lawyer's just not going to be looking at the legal sources and maybe the most colorful, the vivid case, is a case in the case books, Riggs v. Palmer, and he called it, Elmer's case. PUBLIUS: It’s interesting that Dworkin called the case by the first name of the defendant, Elmer, rather than the official legal title. This indicates that Dworkin is interested in the aspect of the case involving the individual and his choices. Why was this the example he chose to illustrate his difficulties with Positivism? ERIC CLAEYS: In Elmer's case, a grandfather wrote a will, and left most of his estate to his grandson. There were provisions that were, for a, a few, nieces of this grandfather. The grandfather then remarried after his first wife died, and the grandson was worried that the grandfather was going to rewrite the will for the benefit of the new wife, and so the grandson poisoned the grandfather. So the will though, again, meant for most of the estate to go to the grandson, and so the nieces then brought an action against the administrator of the will saying: do not enforce this will as it is written, it would be grossly inequitable to administer the will so that the person who killed the grandfather gets most of the money. And legally this raises a difficult issue. This was decided in New York, and the Wills Act in New York required the people who were administering wills in probate and the probate courts to follow the wills. If the law of the will is only the directors in the will, then there's no way for the probate, administrator, or the probate court to do anything other than follow the play in terms of the will. But, it could be that the will is limited by principles of equity, and there are maximums of equity that say that people should not profit from the wrongdoing. And then the Wills Act might be bounded by canons of construction, and there are canons of construction that say that if a statute seems to lead to observed consequences in some situation, or if a statute seems to lead the consequences that seem insane, and the person who's implying the statute seems confident that the legislators who wrote the statute could never have foreseen the situation, then the statute ought not to apply. And so just as a lawyer, it's not easy to decide: should we follow the plain text of the will and the plain text of the Wills Act, or should we temper the will and the Wills Act with canons of construction and principles of equity? Dworkin then argued though, that when a lawyer or a judge is trying to decide between the will and the statutes and the principles of equity and the canons of construction, it's absurd or ludicrous to say that the lawyer, the judge, is just relying on perceptions or intuitions about what the law is. There are implicit normative judgments, and the judge is, or the lawyer is, kind of weighing the legality of each of the commands against the justice in each of the commands. And arguments like this led Dworkin to make a criticism he called the semantics sting, and his argument was that people like Hart were trying to reduce law solely, to semantics, solely to understanding what the law is in the same way a translator wants to know what a words in a different language mean, and Dworkin argued that laws can never be solely a semantic exercise, there's always some practical normative judgment interspersed with the identification and application of commands. And so he tried to introduce an account of law that gave, due to laws being a commander or a positive directive on one hand and it's being something that required principle judgment on the other hand. PUBLIUS: What other insights did Dworkin propose? What is his main argument or theory about what law is and how it works? ERIC CLAEYS: Dworkin's main work is Law's Empire, and in it he summarized a lot of articles he had written over 15 to 20 years, and in it he introduced a theory of what he called interpretation. And interpretation for Dworkin consists of a process of discerning what law is and applying it in a particular case in a new case. And for Dworkin, then when lawyers and judges are working with the law, they always have to be navigating between two different steps of working with the sources. And one step involves fit, and another step involves value. For Dworkin, the conscientious lawyer or the conscientious judge deals with a new problem, and then identifies all the legal sources that are in force, and might affect the decision. And he thinks that at this stage, the judges or the lawyers trying to identify all the sources that might come into play, and the judge or the lawyer can put off the question, what source is gonna be the most influential? Dworkin then argues that the lawyer or the judge cannot just then say, which of these seems the most controlling or would take priority over the others? The lawyer or the judge cannot help but ask: this decision I'm making now is nested in a broader set of authorities, and those authorities help to realize a good community, and I ought to make the decision that helps these authorities be the best instances of the kinds of authority that they're striving to be. And that process of prioritizing authorities based on how they help realize a good or a just system of law, that was the process of us attributing value to each of the different sources. For Dworkin, the process of working out what the law is is a two step process. You find all the sources that kind of fit the problem that's in point, and then you give weight to some of the sources on the ground that they have the most value, they seem to be the most promising to lead to a just system among all the different sources of the people they affect. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! TRANSCRIPT - VERBATIM FOR YOUTUBE Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Eric Claeys, Professor of Law at Antonin Scalia Law School at George Mason University. In his scholarship, he studies theories of natural law and natural rights and their implications in property law. Professor Claeys’s main teaching interests include Property, Torts, Jurisprudence, and Intellectual Property. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Professor Claeys, in the last two episodes, we discussed Positivism. You compared and contrasted some of the Positivist premises with Natural Law principles. Is there any theory in between Positivism and Natural Law? In our conversation, I've been saying that there's a basic distinction between natural law and positivism. I've been making broad contrast between natural law views and positivist views, and in a couple of times I've talked about a different categorization between non-positivists and positivists. And I've moved between the two of those, because there's one figure who doesn't fit easily into the natural law-positivist divide and that's Dworkin, Ronald Dworkin. Dworkin is a non positivist, he's probably not a natural lawyer. In at least one writing I know of, he's criticized natural law views. In contemporary American and English analytical philosophy of law, Dworkin gets pride of place as the main critic of all the positivists who dominated the debate, and Dworkin is not a fellow traveler with Thomistic Natural Lawyers, in the sense that he is not someone that sees laws having a nature. But he agrees with the natural lawyers in that he finds positivist accounts of law unsatisfying. He finds problems with positivist accounts of law in that they try to reduce law to its having been positive or being a matter entirely of social facts and social acceptance. So, Dworkin started writing after Hart's book The Concept of Law had been published and become very influential, and Dworkin challenged Hart and he challenged Hart's project where law could be conceived of in a positive manner, solely in terms of the internal point of view. And Dworkin in a series of articles in the late sixties and in the early seventies, introduced cases that were hard cases and the point that Dworkin was driving at in all these cases was something like this. Look, when the lawyer is trying to decide a hard case like this, the lawyer's just not going to be looking at the legal sources and maybe the most colorful, the vivid case, is a case in the case books, Riggs v. Palmer, and he called it, Elmer's case. It’s interesting that Dworkin called the case by the first name of the defendant, Elmer, rather than the official legal title. This indicates that Dworkin is interested in the aspect of the case involving the individual and his choices. Why was this the example he chose to illustrate his difficulties with Positivism? In Elmer's case, a grandfather wrote a will, and left most of his estate to his grandson. There were provisions that were, for a, a few, nieces of this grandfather. The grandfather then remarried after his first wife died, and the grandson was worried that the grandfather was going to rewrite the will for the benefit of the new wife, and so the grandson poisoned the grandfather. So the will though, again, meant for most of the estate to go to the grandson, and so the nieces then brought an action against the administrator of the will saying: do not enforce this will as it is written, it would be grossly inequitable to administer the will so that the person who killed the grandfather gets most of the money. And legally this raises a difficult issue. This was decided in New York, and the Wills Act in New York required the people who were administering wills in probate and the probate courts to follow the wills. If the law of the will is only the directors in the will, then there's no way for the probate, administrator, or the probate court to do anything other than follow the play in terms of the will. But, it could be that the will is limited by principles of equity, and there are maximums of equity that say that people should not profit from the wrongdoing. And then the Wills Act might be bounded by canons of construction, and there are canons of construction that say that if a statute seems to lead to observed consequences in some situation, or if a statute seems to lead the consequences that seem insane, and the person who's implying the statute seems confident that the legislators who wrote the statute could never have foreseen the situation, then the statute ought not to apply. And so just as a lawyer, it's not easy to decide: should we follow the plain text of the will and the plain text of the Wills Act, or should we temper the will and the Wills Act with canons of construction and principles of equity? Dworkin then argued though, that when a lawyer or a judge is trying to decide between the will and the statutes and the principles of equity and the canons of construction, it's absurd or ludicrous to say that the lawyer, the judge, is just relying on perceptions or intuitions about what the law is. There are implicit normative judgments, and the judge is, or the lawyer is, kind of weighing the legality of each of the commands against the justice in each of the commands. And arguments like this led Dworkin to make a criticism he called the semantics sting, and his argument was that people like Hart were trying to reduce law solely, to semantics, solely to understanding what the law is in the same way a translator wants to know what a words in a different language mean, and Dworkin argued that laws can never be solely a semantic exercise, there's always some practical normative judgment interspersed with the identification and application of commands. And so he tried to introduce an account of law that gave, due to laws being a commander or a positive directive on one hand and it's being something that required principle judgment on the other hand. What other insights did Dworkin propose? What is his main argument or theory about what law is and how it works? Dworkin's main work is Law's Empire, and in it he summarized a lot of articles he had written over 15 to 20 years, and in it he introduced a theory of what he called interpretation. And interpretation for Dworkin consists of a process of discerning what law is and applying it in a particular case in a new case. And for Dworkin, then when lawyers and judges are working with the law, they always have to be navigating between two different steps of working with the sources. And one step involves fit, and another step involves value. For Dworkin, the conscientious lawyer or the conscientious judge deals with a new problem, and then identifies all the legal sources that are in force, and might affect the decision. And he thinks that at this stage, the judges or the lawyers trying to identify all the sources that might come into play, and the judge or the lawyer can put off the question, what source is gonna be the most influential? Dworkin then argues that the lawyer or the judge cannot just then say, which of these seems the most controlling or would take priority over the others? The lawyer or the judge cannot help but ask: this decision I'm making now is nested in a broader set of authorities, and those authorities help to realize a good community, and I ought to make the decision that helps these authorities be the best instances of the kinds of authority that they're striving to be. And that process of prioritizing authorities based on how they help realize a good or a just system of law, that was the process of us attributing value to each of the different sources. For Dworkin, the process of working out what the law is is a two step process. You find all the sources that kind of fit the problem that's in point, and then you give weight to some of the sources on the ground that they have the most value, they seem to be the most promising to lead to a just system among all the different sources of the people they affect. Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!