Ralf Poscher (Ruhr-Universität Bochum, Germany) has posted The Hand of Midas When Concepts Turn Legal or Deflating the Hart-Dworkin Debate on SSRN. Here is the abstract:
The law shares many of its concepts with other areas of discourse. That most of these concepts have a specific legal meaning when used inside the law is a well established linguistic fact. The law develops its own conceptions of concepts it shares with other disciplines. Like King Midas, who turned anything he touched into gold, the law turns its concepts into legal ones. The deep reason for the Midas quality of the law lies in the specificity of the legal practice, its methods, doctrinal standards and institutional setting. This holds also for the one area where shared concepts have triggered one of the main controversies in legal theory: the relation of legal and moral concepts. Dworkin initially attacked Harts separation thesis with the observation that the law employs moral principles in hard cases. Positivists have struggled ever since to accommodate this observation. But if the law has a Midas quality the whole debate deflates. Even in hard cases the law applies legal conceptions of concepts it shares with morality. These conceptions are specifically legal and not to be confounded with their moral counterparts.
And from the text:
In a qualified sense the specificity of legal conceptions is not only ubiquitous, but pervasive. Even if the development of a legal conception were to lead to the same conception as in the area of discourse that the law is drawing upon, this would not deprive the legal conception of its legal specificity. First, it would be specific to the law in the sense that it could only be taken up there, for it complies with the specific exigencies of the law, not just because it is scientifically convincing. Second, after being taken up it would still stand under different conditions of usage, as would become apparent in the case of a change in the legal material. If there had only been laws on murder and manslaughter, the criminal legal conception of a human being might have adopted a certain medical definition that included a fetus to protect the unborn life. If the legislator were to introduce laws on abortion, this would necessarily affect the criminal conception but would not affect the medical or biological counterpart.
And a bit more:
if law is like King Midas, then the entire debate rests upon a common error and deflates. The law and morality only share common concepts but not common conceptions. It is the very task of the law, or more precisely, of everyone working within the doctrinal framework of the law – judges, lawyers, doctrinal scholars and so on – to work out genuine legal conceptions by observing the methods that are true to the law, that respect the history of the given legal tradition and that take into account the specific institutional settings of the law. To draw on moral reasoning in this process neither leads to morality’s becoming part of the law nor does it make the relation between the law and morality structurally unique by comparison with its relation to other disciplines. The law draws on moral conceptions as it draws on meteorology, medicine, or biology – without any need to trigger philosophically intense debates about the law being necessarly meteorological or law having incorporated biology.
A very interesting & also very compact essay that touches on a variety of very deep and interesting questions.
One or two quick thoughts. I would be very interested in Poscher’s reaction to the work of Michael Moore, and in particular his famous essay, Michael S. Moore, The Semantics of Judging, 54 S. CAL. L. REV. 151 (1981). Moore’s position is in a sense the polar opposite of Poscher’s.
A challenge from a different angle is posed by my own recent work, which is framed in the context of constitutional semantics, but which relies on arguments that generalize to statutes and judicial decisions. See Lawrence B. Solum, Semantic Originalism. I argue that conventional legal practice incorporates the conventional semantic meaning of the words and phrases used in legal texts and that such incorporation is essential for legal semantics to make sense of legal communication.
Read Poscher.