text: Hart’s claim that there is a deep problem with Austin’s approach that leads him to miss what Hart calls the internal aspect of rules.
  Whether Hart can both disagree with Austin and deny that legal obligation is a species of moral obligation. (Hart very much wanted to insist on the separation of law and morality, as we will see.)
  Many laws are obligatory: the criminal law, for instance, dictates very clearly what you may not do. Austin and Hart disagreed about how to understand legal obligation. Austin traced it back to commands and sanctions. Hart thought that obligations are best understood as a product of rules and that Austin’s method would never yield an adequate understanding of rules.
  In order to illustrate Hart’s second point, I asked you to pretend you were anthropologists trying to explain a curious fact about our culture: baseball players run to first base after hitting the ball about as predictably as people avoid doing things that put their lives at risk. To understand why this is so, you need to understand that the players are trying to follow the rules of a game.
  In Hart’s terminology, to see the rules of baseball from the player’s perspective is to appreciate the “internal aspect of rules.” In rule governed activities like games, you can only accomplish what you want if you follow the rules (or, at least, come very close almost all of the time). Since this is so, players who want to win look to the rules as guides for what they should do.
  Hart thought that obligation is best understood as a kind of rule-governed behavior. To think that you have an obligation to do something is to take the internal perspective on the rules that require you to do that thing.
  Of course, there are lots of rules that require lots of things. You’re not allowed to run outside of the base paths in baseball, you’re not allowed to wear white shoes before Memorial Day, and so on. All rules are at least superficially mandatory in this way. But only some of those requirements are obligations. Hart noted that obligatory rules are typically important and enforced. There’s a question, then, about whether his views are significantly different than Austin’s. If obligation rests on enforcement in both cases, what’s the difference? I think there is one, but it’s subtle.
  We turned to sovereignty last. The sovereign authority in a society is the body that makes laws for that society. Austin defines sovereignty in terms of habits of obedience. Hart applied his point about the internal aspect of rules here as well. At the very least, habits aren’t mandatory but we are required to recognize and obey the sovereign authority in our society.
  This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2010. ¶ It was posted January 29, 2010.
  Dworkin thinks Scalia has to choose between an objectionable theory and his favored understanding of the Constitution’s meaning. Expectation originalism fits Scalia’s arguments about the Eighth Amendment, but is objectionable. But, Dworkin argues, semantic originalism doesn’t support Scalia’s conclusions about what the Constitution says.
  Since everyone claims to be a semantic originalist, the debate comes down to how to understand the abstract principles that are in the Constitution.
  Dworkin thinks that the original meaning of the Constitution is open-ended. It asks future generations to come up with the best understanding of what phrases like “cruel and unusual” mean. Scalia thinks there are limits to how open-ended it is. In particular, he thinks it’s obvious that the Bill of Rights was meant to address the possibility of backsliding. Future generations might have had depraved understandings of what is cruel and the Constitution was written to block them from making the country worse (as far as any legal document can).
  Jamie had doubts. He pointed out that they allowed the Constitution to be amended, potentially overriding anything they had put in it. That doesn’t sound like a way of setting rights in stone.
  I added another argument on Scalia’s side. I said that we have trouble imagining how future generations could have better understanding of values, like what cruelty is. Or, at least, I do and I assume the authors of the Constitution are like me. If so, then they wouldn’t have made the Constitution open ended in the way that Dworkin says they did.
  What follows is more a description than an argument. If you find this description applies to your way of thinking, chances are you will agree with me. If not, you probably won’t. But I’m going to confess up front that I don’t have a way of showing that you have to agree with me. So, with that in mind, here we go.
  I have an asymmetrical attitude towards the future compared with the past. I think we have discovered things about morality that previous generations didn’t know or appreciate. But I resist the thought that future generations might make similar discoveries about us, namely, that we regularly do things that are, in fact, morally reprehensible.** This is not the way we think about knowledge of the natural world, by the way. I assume that the authors of the Constitution were like me in this regard: they didn’t take seriously the possibility that their practices might be cruel. So it is implausible to think that whatever they meant by “cruel and unusual” would lead to that conclusion.
  So, it seems to me, Scalia is right that the original meaning of the Constitution will be limited in important ways. Of course, it is also open in many ways. We really do have to think about how to apply the phrase “cruel and unusual.” I’m only saying that I very much doubt that our applications could be both consistent with the original meaning of the phrase and sharply at odds with the practices of the time.
  But why should we limit ourselves to an eighteenth century constitution? Good question. If you’re asking it, perhaps you think it was a mistake of Dworkin to grant Scalia’s premise that we should interpret the Constitution according to its original meaning.
  I distributed a handout, but I have to confess that it had little to do with what we talked about. It’s just more information about originalism.
  This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2010. ¶ It was posted March 6, 2010.