Contemporary Themes and Readings in Legal Theory V

Prof. Ronaldo Porto Macedo Junior

Handout: HERSHOVITZ, Scott. Law Is a Moral Practice. Harvard University Press, 2023, Chapter 3:
Not a Set of Norms, p. 67-81.
Pedro Henrique do Nascimento Oliveira

1. Do Justice, Justice

1.1. Hershovitz tells a story about a dialogue that took place between Oliver Wendell Holmes and
Learned Hand, in which the Justice, when urged to dispense justice by his interlocutor, replied "it is not
my job".
1.1.1. Dworkin's Version: Learned Hand was serious. Holmes merely replied "that is not my job".
1.1.2. Hand's Version: The remark was ironic, a joke, and Holmes answered that "it is not my job.
My job is to act according to the rules".
1.2. Regardless of which version is real, what matters to Hershovitz is the part where Holmes says that
his job is to act according to the rules.
1.2.1. Holmes probably meant that the judge should restrain himself, that he is not authorized to
pursue justice in the cases under his analysis.
1.2.1.1. This position is consistent with the one advocated by Hershovitz: litigations present
moral issues, but they are narrow, meaning the party either has or does not have the alleged
right.
1.2.1.2. People may have rights they shouldn't have, as well as not have rights they should
possess. Sometimes, asserting a right can be a means of causing injustice.
1.2.1.2.1. Case of the white supremacists in Charlottesville, Virginia, who marched
against the removal, by municipal authorities, of Confederate monuments.
1.2.1.2.2. The protests sparked violence, and the city, at the last minute, relocated the
gathering to a more distant park.
1.2.1.2.3 The case was brought to court, alleging that the supremacists had the right to
hold the march at the initially permitted location, as guaranteed by the First Amendment
and its history of application by the Judiciary.
1.2.1.2.4. It was not questioned whether we should have the First Amendment or if
changing the location of the march would promote justice, but only if the protesters had
the alleged right.
1.2.1.2.5. The court agreed with the plaintiffs, convinced that the city altered the permit
because it disapproved of the content of the supremacist speech.
1.2.1.2.6. Right or wrong, the court addressed the moral question brought before it,
rather than deciding whether, all things considered, restricting the permit would
promote justice.
1.2.2. Some people interpret what Holmes said differently. They understand that he said that Law is
just a set of rules, like a game, with a contingent connection to justice and morality.
 1.2.2.1. This view links Holmes with the prevailing position of legal philosophers, according to
which law is a set of norms, and many think that rules can have any content, or at least morally
defective content.
1.2.3. Hershovitz disagrees that this was Holmes's position, as this view only emerged with "The
Concept of Law" by H.L.A. Hart, and in reaction to Holmes's view that law is nothing more
than a prediction of what courts will do.
1.2.3.1. Nevertheless, it is this view that Hershovitz is interested in and will try to explore in
this chapter.
1.2.3.2. We will see that on some occasions, there are good reasons to treat Law as a set of
rules. We will also see that we need to be careful with this kind of claim, which can cause
confusion.
1.2.3.2.1. There are many different sets of rules associated with our legal practices.
1.2.3.2.2. Viewing Law as a set of norms can obscure the fact that it is a moral practice.

2. Norms, Not Texts

2.1. Jurists talk a lot about Law. They tell us what Law requires, what it prohibits or allows. Sometimes,
they say that Law is silent on a certain issue, or that it is unclear. To a layperson, it seems like they are
talking about things written in legal books, and sometimes they are indeed.
2.1.1. Hershovitz mentions another anecdote told by Dworkin about the day he started working for
Learned Hand. Hand reportedly told him: "most of my colleagues have their clerks look up the
law, but I know where the law is better than you, because I wrote most of it".
2.1.1.1. Hand wrote a large number of legal books.
2.1.2. The story suggests that certain discussions about Law do indeed refer to a set of texts.
2.2. There is another way in which jurists talk about Law. They refer to something related to what is
written in books but is not identical to it.
2.2.1. Statutes that have been repealed.
2.2.2. Dicta: non-binding remarks or opinions about Law, as they are tangential to the case under
examination.
2.2.3. Preambles and other uses of precatory language.
2.2.4. Sometimes, Courts decide that laws do not mean what they say, or mean more than they say.
2.3. Most philosophers argue that Law is a set of norms.
2.3.1. Norms are standards by which we can evaluate actions or attitudes, among other things.
2.3.1.1. Rules are a type of norm, as they have an evaluative function.
2.3.1.1.1. For example, the rule that Hank has to finish everything on his plate. Every
night, it is assessed whether he followed the rule or not.
2.3.1.1.2. The possibility of assessment is given by a second rule: to leave the table,
Hank needs to ask for permission.
2.3.1.2. There are other types of norms, such as plans, orders, and even recipes.
2.3.1.2.1. For Hart, law is a set of rules (union of primary and secondary rules).
2.3.1.2.2. For Shapiro, law is a set of plans.
2.3.1.2.3. For Dworkin, law is a set of principles (sometimes treating it as a set of rules
and principles).
 2.3.1.2.3.1. In other occasions, Dworkin resisted treating law as a set of
norms, but not because norms do not play a central role in law.
2.3.2. The view of Law as a set of norms structured the debate in legal theory for several decades.
2.3.2.1. This is because it is natural to want to know what makes something a member of the
set, that is, how the norms that constitute Law are themselves constituted.
2.3.2.2. This question was at the center of the Hart-Dworkin debate, with several philosophers
developing theories with different levels of detail.
2.3.2.2.1. Positivists: the content of law is determined by social facts about legal
practices. Morality does not play a role in determining the content of law.
2.3.2.2.2. Antipositivists: moral facts (understood as facts about rights and
responsibilities, what is good or bad, etc.) determine, at least in part, the content of law.
2.3.2.2.2.1. Some call those theories Natural Law, but such label
encompasses theories unrelated to the Hart-Dworkin debate.
2.3.2.3. Hershovitz disagrees with the utility of labels because he finds it misleading to assume
that there is a single set of norms called law of a community
2.3.2.4. Before presenting his case, the author wants to think about how norms are created. He
will primarily talk about rules, which are more familiar to us, but without prejudice to
the idea that principles and plans are also important in law.

3. How do you make a rule?

3.1. Pickle-hopping rule: Hershovitz makes up a rule about a person having to hop six times before eating
a pickle. It's a made up rule. It's easy to make rules; they are infinite.
3.1.1. What makes a made-up rule a made rule??
3.1.1.1. The rule has to be made for someone or for some purpose.
3.1.2. Was the rule made or discovered?
3.1.2.1. Making a rule may simply involve scanning the field of possibilities and identifying
what works best.
3.1.2.2. Common conundrum solution: in one sense, the rule was made, but in another, it was
discovered.
3.1.3. There are more than one way things can exist.
3.1.3.1. The author makes a comparison with Harry Potter, who did not exist until imagined but
now exists in the form of a fictional character.
3.1.3.2. “Thicker vs. Thinner ways of existence”.
3.1.3.2.1. The author distinguishes three types of existence: corporeal existence,
fictional existence, and existence in a space of possibilities.
3.1.4. Rules can also exist in ways that are thicker (dependent on someone's engagement) or thinner
(within a space of possibilities).
3.1.4.1 Hershovitz exemplifies by creating the "Rules of this book":
3.1.4.1.1. This book must be read in one sitting, while eating popcorn.
3.1.4.1.2. You must agree with everything that this book says, or you must keep quiet
about it.
3.1.4.1.3. After you read this book, you must write a favorable review.
3.1.4.1.4. If you have read this far, you must send me half of your next paycheck.
 3.1.4.2. The above rules had a thin existence (within the space of possible rules) until they were
written, but now they are thicker. They were grouped and designated, and many
questions can be asked about them (How many are there? What purpose do they serve?
Should people comply with them?).
3.1.4.3. The “Rules of this book” are not serious nor should they be followed, but rules in
general can be binding or authoritative.
3.1.4.3.1. This means that people may have reasons to follow them, so their behavior is
defective in a certain sense if they do not.
3.1.4.4. Should we be positivists about the Rules of this book?
3.1.4.4.1. Considering that their content and existence are determined only by social
facts (the author wrote them), yes, we should. Moral facts do not participate in
explaining their content.
3.1.5. Hershovitz moves on to discuss binding rules.
3.1.5.1. Rules of This Book do not bind because their author does not have the power to bind
us.
3.1.5.2. He asserts that authors, at least sometimes, have the power to create rules for their
readers.
3.1.5.2.1. Among academics, it’s common to see draft papers with the phrase “Please
do not quote, cite, or circulate” printed prominently at the top.
3.1.5.2.2. the presence of the phrase creates a rule for readers, requiring them to obtain
permission if they want to quote, cite, or circulate the draft.
3.1.5.2.3. The rule is not absolute in the sense that it must be followed whatever the
circumstances. For instance, if the paper is defamatory, you might do well to send it to
the person defamed.
3.1.5.3. It is only when rules are made in this sense that it makes sense to talk about breaking
them.
3.1.5.3.1. Rules of This Book and Pickle-Hopping Rule don’t bind us, so They can not
be broken.
3.1.5.3.2. Possibility of breaking a rule has not to do with the previous knowledge about
its content, but with its authority.
3.1.5.4. A rule is authoritative when they are made through the exercise of a normativa power.
3.1.5.4.1. Normative power is a power to change someone’s normative situation
through an act that aims at bringing about that change.
3.1.5.4.2. Hank’s food rule is binding because it was made through the exercise a
normative power that is partly constitutive of a parent’s authority.
3.1.5.4.3. The normative power that an academic has to set the terms on which her
drafts are distributed is grounded differently. According authors that authority improves
academic discourse, since it lowers the stakes of presenting work in draft form,
encouraging people to share their ideas at an early stage.
3.1.5.4.3.1. This rationale for an author’s authority limits its scope. The
author can bar somenone from sharing the draft, but can not oblige someone
to disperse it.
3.1.5.5. Sometimes we also make rules that are binding accidentally, or incidentally.
 3.1.5.5.1. This is possible because of a more general moral phenomenon: we can change
our normative situations without intending to do so.
3.1.5.5.1.1. For instance, if I carelessly crash into you, I’ll have an obligation
to apologize, ask after your well-being, and perhaps also to help you with (or
compensate you for) your injuries.
3.1.5.5.2. The acidental action triggers moral principles that apply to all of us: we
should apologize for our wrongs and seek to set the right.
3.1.5.5.3. Another example: suppose there’s a coffee machine in the break room. Over
time people coalesce around the practice consistente in: if someone finished a pot of
coffee, she would start a new one.
3.1.5.5.3.1. Other people notice the pratice and start doing the same. Then,
They start to criticize people who act differently. Finally, someones
articulates na express rule.
3.1.5.5.3.2. The rule was already authoritative before its articulation.
3.1.5.5.4. Fairness requires participating in practices like this, so long as the benefits
and burdens are shared in roughly equal measure.
3.1.5.5.4.1. Articulation, on its own, would not be enough to make the rule
binding, unless the person who announced the rule had the authority to do so.
3.1.5.5.4.2. Absent that authority, there is na authoritative rule here, if there
is, only in virtue of the fact that the shared practice triggers principles about
the fair distribution of burdens and benefits.

4. The Rules of the House (Revisited)

4.1. Hershovitz returns to the first example, about the rule that requires Hank to try everything on his
plate. Instead of saying that it was not a rule, hank could have said: “Yes, that’s the rule, but I don’t have
any reason to comply with it.”
4.1.1. He would have been making a diferente point from the one he actually made. He would have
been acquiescing to my claim that there is a rule in our house that requires him to try
everything on his plate, and he very much wanted to deny that.
4.2. There are many sets of rules that are associated with their house and, in particular, with their
parenting:
4.2.1. The rules that Julie and I articulate.
4.2.2. The rules that Julie and I intend to impose.
4.2.3. The rules that Julie and I enforce.
4.2.4. The rules that Julie and I threaten to enforce.
4.2.5 The rules that Julie and I think are authoritative for Hank.
4.2.6. The rules that Hank follows.
4.2.7. The rules that Hank accepts as authoritative.
4.2.8. The rules that are authoritative for Hank.
4.3. Depending on the conversation, it might make sense to refer to one or more of these sets as “the rules
of our house”.
4.3.1. The author mentions an example of a family therapist who asks what time the lights of the house
must be out. The answer is 8 p.m. She then asks whether lights typically are out by that time,
 and they tell her “no, most nights it’s closer to 9 p.m.”. Then she replies “well, it’s not really a
rule of the house, is it?”.
4.3.1.1. She is not interested in the rules they articulate, but in the rules they enforce.
4.3.2. So, returning to Hank’s case, he is interested not in the set of articulated rules, but in the set of
rules that are authoritative to him. He denies that there is a reasin for him to comply with it.

5. The baby and the bonnet

5.1. In The Concept of Law, Hart introduced the idea of a social rule, which exists When the members of
a group:
5.1.1. Converge in their behavior.
5.1.2. See their convergence as setting a standard that ought to be followed.
5.1.3. Criticize one another for deviating from that standard.
5.1.4. See the criticism as warranted in light of the deviation.
5.2. The idea is similar to the coffeepot case.
5.3. Hart’s aim was to explain the difference between things people did out of habit and things they did
because They accepted a rule that required them to do so.
5.3.1. He mentions the difference between the habit lots of people have to go to the movies on
Saturday night and the rule that demands men to remove their hats in church.
5.4. This idea is importante for Hart’s theory of law, since his ‘rule of recognition’ is a social rule.
5.5. In one of his first rejoinders to Hart, Dworkin extended Hart’s case, talking about the possibility of
application of the “church rule” to the case of male babies wearing bonnets.
5.5.1. If the community were split down the middle on the question whether male babies must remove
their bonnets, there would be no social rule and, hence, no requirement either way.
5.5.2. Nevertheless, Dworkin suggested, members of the community could sensibly insist that male
babies are (or are not) required by rule to remove their bonnets.
5.5.3. And they could do so even in the face of disagreement, he said, because the rules they would be
invoking were “normative rules,” not social rules.
5.5.3.1. Talking about normative rules is odd, since rules are norms and, in this sense, all rules
are normative.
5.5.3.2. In order to understand this point, Hershovitz mentions the sets of rules that are
associated with the way people dress in church:
5.5.3.2.1. The rules they articulate.
5.5.3.2.2. The rules they accept.
5.5.3.2.3. The rules they follow.
5.5.3.2.4. The rules they enforce.
5.5.3.2.5. The rules that are authoritative
5.5.3.3. When Hart offers his theory, he is talking about the set of accepted rules.
5.5.3.3.1. This is the purpose of The Concept of Law, since his social rule theory is
presented as answer to this question: “What is the acceptance of a rule?”
5.5.3.3.1.1. But his language often slips, as he suggests that the social rule
theory describes the conditions under which rules exist, and this is not the
only kind of existence rules may have.
 5.5.3.4. On the other hand, when Dworkin talks about normative rules, he’s talking about rules
that exist in a diferente sense. In fact, he’s talking about the fifth set on the list above –
the rules that are authoritative.
5.5.3.5. Hart may have meant to offer a theory of those rules too. His social rule theory was
intended to explain the existence conditions for moral rules, which he seemed to see as
a species of social rules.
5.5.3.5.1. This means that any rule only could be morally binding if it was accepted.
5.5.3.6. Dworkin observed that authority and acceptance can come apart - hence, the need
for a distinction between normative and social rules.
5.5.3.6.1. The key is that, when people contest what ought to be done, they are arguing
over the rules that are authoritative, not the rules that they accept.
5.5.3.6.1.1. In some cases, rules could become authoritative partly because
they are accepted (v.g. coffepot case).
5.5.3.6.1.2. The church rule about hats is plausibly another one of this kind,
since there are different ways to show respect, and the removal of the hat is a
specific one which became authoritative because it was accepted.
5.5.4. About the “Baby and the Bonnet case”, Hart would say there is no rule that covers the case,
since there is no convergent behavior, but Dworkin would say otherwise, because rules that are
authoritative may differ from the rules that are accepted.
5.5.4.1. One way in which they might differ is that they might require more than people
currently see themselves as required to do.
5.5.4.2. This happens if the rationale that renders the accepted rule authoritative extends to
cases that are not covered by that rule.
5.5.4.2.1. For instance, the people who think that male babies must not wear bonnets
probably think so because they believe that their parents show a lack of respect by
refusing to remove them. And the people who think it fine for a male baby to wear a
bonnet might think that parents should worry about whether their babies are
comfortable, rather than whether they are showing respect through what they wear.
5.5.4.2.2. In other words, that is a dispute about whether the rationale for men removing
their hats in church extends to babies.
5.5.4.3. All this discussion only makes sense because what is at stake is the rule that is
authoritative, not the rule that is accepted.