Forgive me for not understanding the profundity of the debate. "No vehicles in the park" is a *shorthand*. The audience is expected to know which exceptions are allowed. Those who wrote the rules expect that they won't have to say "No vehicles in the park ... unless the park's managers decide to install bumper cars here, in which case *those* vehicles will be allowed, but no others. And if there ever happens to be a war in here, we'll allow military vehicles. And planes can land here in an emergency, *but only in an emergency*."

This seems like a highly academic debate. Can someone explain to me why it's interesting?
 

I always thought Fuller was right. But then, I live in a state where Pacific Gas & E. Co. v. G. W. Thomas Drayage etc. Co. is the law.
 

I'm reading Lewis A. Grossman's "Food, Drugs, and Droods: A Historical Consideration of Definitions and Categories in American Food and Drug Law," 93 Cornell Law Revies 1090, linked to at Mary's Legal History Blog and available via SSRN. The statutory definitions of "food" and "drugs" in several statutes are discussed that present questions similar to Hart's article. (By the way, I'm learning much more about food, some appetizing, some not.) Even when a statutory definition is provided, issues continue to be raised as to whether something constitutes "food" or a "drug" or both. Perhaps someone might update the proposed ordinance in Hart to include a definition of "vehicle" and then consider whether certain items not clearly in- or out- of the definition of vehicle may or may not be proscribed. Keep in mind there are many of us (lawyers) out there looking for loopholes to drive a vehicle through.
 

Can someone explain to me why it's interesting?

Well, it is an academic debate (a bit unusual for an academic blog, surely), but it does speak to the larger debate of originalism and living constitutionalism--a debate that often frames the politics of judicial appointments.

What strikes me as odd is that this debate seems to have been made in the absence of basic semiotics. Of course the meaning of signs is arbitrary. Of course that meaning is dependent on the meaning of other signs.
 

Steve,

The debate connects up with broader issues about the relationship between rules and purposes (rule-oriented reasoning versus end-oriented reasoning), law and morality, and so on. Your phrase "highly academic debate" applies to all of these issues (and lot's of other stuff I think about). Many people think that "highly academic debates" are a waste of time.

Perhaps (though I don't agree).

But at least it's entertaining to think about. (pace your comments).

Brian
 

Hi Brian,

Thanks for responding. The end-oriented-v.-rule-oriented stuff is interesting. Is there an end-oriented way to frame this regulation that would make it less subject to loophole-gaming?

By "highly academic," by the way, I didn't mean "written by people in academia"; as pms_chicago notes, this is an academic blog, so of course I know what I'm getting into. "Highly academic" in the sense in which I used it is supposed to mean "not particularly interesting for real-world policymaking." In my original question, I was looking for someone to explain to me why it *is* interesting in that sense.
 

You make Fuller's position sound more reasonable than it is by conflating definitions with meanings. Dictionary definitions are an attempt to express, in words, the set of things (or actions, qualities, etc) that are referred to by a word. As such, they are necessarily approximations of actual meaning.

To see why this makes a difference, imagine addressing a woman standing in the park, and telling her that you liked her vehicle. She would think you were talking about her car (even if it was far away) and not her stroller. Why? Because we never use the word "vehicle" to refer to strollers, even if they are included within the set of things referred to by some lexicographer's attempt to define what "vehicles" are.

In other words, vehicle doesn't mean strollers any more than it means rollerskates or pineapples. Once you limit your attention to cases involving things that ordinary people would actually call "vehicles," Hart's position sounds much stronger, and Fuller's much weaker. After all, Hart was not saying that judges could not interpret the law as Fuller suggested, but only that it was possible for them to apply the law (in at least some cases) by relying on meaning alone, without resort to purposive considerations. And when we rely on actual meaning—in the sense of patterns of usage—the rule "no vehicles in the park" would prohibit cars while permitting strollers.
 

The point Fuller was making, I think, and the one Brian underlines, is that the meaning of the legal category rests on implicit assumptions that start to be revealed only once we begin to pose the question: why? When this question is not posed expressly (i.e. when a purposive inquiry is eschewed for the sake of practicality, common sense etc.) the question is nonetheless being answered tacitly. Let's say, then, that it is the "ordinary" meaning that is adopted. But what are the criteria for determining what that is? If dictionary definitions do not suffice, does having mechanisms of state violence at one's disposal do the trick? Asking such questions are indeed relevant to the realm of policy and indeed daily life (not just blogospheres) because people who tend to live in what those with more ordinary experiences tend to consider the penumbra, deserve justice as much as anyone else. For example, when a homeless man cycling into a park with all his personal belongings, including his shelter, hitched up to his bike, the law "No vehicles in the park" takes on a very particular significance. "Sorry, buddy, no vehicles" may indeed be a shorthand. For what, though? That is the question Fuller and Tamanaha remind us we cannot afford not to pose. Roderick Macdonald and Jason Maclean's article, "No Toilets in Park" provides a rather thoughtful reflection on the "no vehicles in the park" debate. Here's the link: http://francais.mcgill.ca/files/crdpcq/Macdonald_Maclean_park_toilets.pdf
 

I'm picturing a Park Services truck that enters the park on a maintenance mission & is duly ticketed.

But as PMS noted above, the argument seems a bit jejeune to anyone who's sampled a bit of semiotics. Words do not "mean" all by themselves; they have meaning in a context.

IOW, what Steve Laniel said, but more academic-like.
 

The reason this always got a yawn from me (including my agonizingly worthless 1L Legal Process class where I first encountered it) was that it totally ignores the dynamic nature of the law and the political inadequacies that create it in the first place.

Some authority, somewhere, enacted the "no vehicles in the park" rule. That authority can, and should, revise it ("promulgate rules and regulations subsequent to the statute," etc.) to clarify the extent of the law as bicycles, mopeds, war memorials, etc., are encountered.

To pass a sloppy law and then express frustration that reasonable judges disagree on what to make of it says more about the sloppy politicians than about the reasonable judges. The conundrum derives not from any inherent contradiction in legal theory itself, but simply from dumb legislators.

Like I said: yawn.

Most recently, these thoughts crossed my mind in the Ledbetter decision. Who cares whether the Supreme Court "got it right" or "got it wrong." It was a badly written statute which, if it's so important, Congress could revise easily. No deep constitutional contemplation or legal theorizing required.

Lay this "conundrum" at the legislative doorstep, not the judicial.
 

I'd rephrase this in terms of obviousness. Does "vehicle" include "automobile?" Well, obviously. Does "vehicle" include "rollerskates?" Well. . . uh . . . I'm not so sure. All judges could easily say that someone driving a car into the park violates the rule, but differ as to other "vehicles," and still need not look to the purpose of the rule to come to a decision.
 

This comment has been removed by the author.
 

Well gee, when I consider that the current President, Vice-President, and Attorney General of the United States are war-criminals who claim to sincerely believe there is a valid distinction between humane and inhumane methods of torture, this topic doesn't seem the least bit academic.
 

Thanks, everyone, for the thoughtful responses.

Kipesquire--I don't think your suggestion that this is poor drafting gets us very far simply because unanticipated situations will always arise. But you are correct that better drafting can avoid obvious problems of this sort.

Mark--you make a very good point about meaning and definitions, and the divergence between the two. But it's trickier than you suggest for two reasons. First, with respect to conventional meaning, everyone in the community will not always agree about meaning as you suggest. Bicycles strike me as a "vehicle" (any one asked if bicycles are vehicles would answer in the affirmative)--so why did Hart say this was in the penumbra? Second, because such disagreements about meaning arise--and because sanctions are attached and people must have notice--judges do consult dictionaries to figure out meaning.

My point, which Thomas states well, is that a great deal of confusion that might arise owing to potential ambiguities about conventional meaning are avoided before hand (they don't even arise) because readers of the rule implicitly rely upon purpose to read the rule in a sensible way connected to the point of the rule and the context at hand.

Brian
 

because readers of the rule implicitly rely upon purpose to read the rule in a sensible way

But "purpose" doesn't really get one very far, does it?

Is the "purpose" to protect the park from vehicle emissions?

Is it to protect pedestrians from collisions?

Is it to protect the grass from being torn up by tires?

All of these purposes exclude different types of vehicles.

That's why context is at least as important as purpose. And even then, you get uncertainties, because language does not map 1:1 onto the world.
 

First, with respect to conventional meaning, everyone in the community will not always agree about meaning as you suggest. Bicycles strike me as a "vehicle" (any one asked if bicycles are vehicles would answer in the affirmative)--so why did Hart say this was in the penumbra?

I agree that this was a questionable call on Hart's part, as a matter of lexicography. But how does that weaken the force of his argument? His point was just that there is a penumbra (where there is some agreement on meaning but not universal agreement), at which point other criteria than meaning will have to determine the outcome of cases. In other words, he claims that formalism can resolve some cases, but not all.

Second, because such disagreements about meaning arise--and because sanctions are attached and people must have notice--judges do consult dictionaries to figure out meaning.

Of course -- dictionary definitions provide evidence of meaning. All I was arguing was that they do not constitute meaning, and can sometimes lead us astray. I doubt that any judge would say that a stroller was a vehicle, even if a litigant proffered the above definition. Why not? You can offer purpose as one reason, but I think that judges are likely to be relying on their linguistic common sense. After all, if you changed the proscription to "No wheeled contraptions are allowed in the park," I think many judges would say strollers are now banned, even though the purpose of the new rule would be arguably the same as the old.
 

Can someone explain to me why it's interesting?

It is interesting to me for what it says about the imperfections of language and the difficulty of making rules function in a desirable way.

I agree that the rule "no vehicles in the park" is faulty on account of vagueness. But the test I would apply is "well, what they meant was this..." That seems to be all about purpose.
 

I agree that this was a questionable call on Hart's part, as a matter of lexicography. But how does that weaken the force of his argument? His point was just that there is a penumbra (where there is some agreement on meaning but not universal agreement), at which point other criteria than meaning will have to determine the outcome of cases. In other words, he claims that formalism can resolve some cases, but not all.

JMHO, but I think Hart is cheating. When he claims that people agree on meaning, what he really means* is that people share assumptions about purpose and context due to cultural similarity. If formalism were all it's cracked up to be, it wouldn't be so hard to program meaning into computers or to teach a foreign language.

*Irony duly noted.
 

But doesn't the concept "agree" also have a meaning?

If not, on what basis do you claim to be discussing law or that such a thing as law even exists?
 

Mark Field:

You said: "If formalism were all it's cracked up to be, it wouldn't be so hard to program meaning into computers or to teach a foreign language."

Ummmm ... ahhhh ... tell me more about your mother.

;-)

Cheers,
 

After this is over, maybe you could take on "one carry-on bag and one personal item"
 

Interesting that Bart DePalma hasn't shown up here. He, after all, is totally convinced of his methods of interpretation, and is very dismissive of the idea that meaning is informed by purpose or context.

Does he know that this is a 50 year old jurisprudential debate? Does he care?

(Of course, the discussion of purpose clauses in Heller shows that Scalia doesn't know very much about this either.)
 

Interesting that Bart DePalma hasn't shown up here.

Bart: "Vehicle" means what the President says it means.

Otherwise, Islamofascist terrorists will destroy the park.

Wasn't that easy?
 

This isn't a terribly insightful contribution, but my gut reaction to the vehicles in the park debate has always been that, while strollers and bicycles are vehicles under at least one dictionary definition of 'vehicle,' there's a more colloquial definition of vehicle that only includes motorized conveyances. People know that strollers are vehicles, technically speaking, but they certainly don't think of strollers as vehicles or refer to them as vehicles. Cars and vehicles, on the other hand, are practically synonyms in everyday usage. When you see the sign, you naturally assume that the colloquial definition, rather than the dictionary definition, is being used, because surely the park wouldn't ban strollers, bikes, motorized wheelchairs, etc. What really happens, in my opinion, when a judge or passer-by interprets the rule is that he reads it with the definition that seems to fit the regulator's likely purpose - the colloquial one. I would note, though, that on this view there is a core meaning - namely, that cars are prohibited, because both definitions of vehicle, the dictionary and the colloquial, include them. And I don't see how on your argument you reach the conclusion that you need purpose to know that driving in your car violates the rule. All I see that you've shown is that you need purpose to know that all these other sorts of vehicles may not viol does not allow it.
 

The last sentence should read "...all these other sorts of vehicles may not violate it [it being the rule]."
 

How about a segue from "vehicle" to the ... drumroll .... Segue! Consider original intent at the time of Hart's no vehicles rule when the Segue did not exist. So the textualist rules, or does he? The living Constitution concept can come into play even though Hart (no, not Bart) goes back only a generation or two. But what about a kid's scooter consisting of an orange box (wooden) nailed on top of a two by four with roller skate sections at each end that I and my friends used to construct back in the late 1930s, early 1940s?
 

Once you limit your attention to cases involving things that ordinary people would actually call "vehicles," Hart's position sounds much stronger, and Fuller's much weaker. After all, Hart was not saying that judges could not interpret the law as Fuller suggested, but only that it was possible for them to apply the law (in at least some cases) by relying on meaning alone, without resort to purposive considerations.

I'm in Fuller's camp as well as Wittgenstein's. 'Meaning' is itself vague and suspect as a concept. If you think about how we come up with ideas of 'meaning' it is for the most part a process of cataloguing and generalizing from use. And there is no use (at all) apart from purpose.

A dictionary is a post hoc catalogue of usage. Language changes and evolves and a dictionary is more or less just a snapshot of current usage seasoned with the 'penumbra' of historical usage.

It has been said (even though Wittgenstein, akaik, never came out and said it) that the essence of his contribution to philosophy was the insight that meaning is merely use.
 

Let's see, in this little world there are citizens, parks, vehicles, and code that specifies legal and illegal manipulations of vehicles. Vehicles are manipulated exclusively by citizens; vehicles do not drive themselves to the park. Citizens and parks are fairly straightforward objects. The tar pit seems to be the code, which defines vehicles in ways that lead to unsatisfactory results. Cursory analysis shows the results are unsatisfactory because the code's definition of vehicle implicitly refers to other objects such as quiet enjoyment, safety, custom, and so on. Unless they are made explicit, it will always be possible to find edge cases that behave in unexpected, even undefined, ways. Probably some of these other objects come under the heading of "purpose" such as the purpose of the park. The purpose of the code might be best subsumed under the purpose of the park. A code that preserves the purpose of the park probably produces satisfactory results.

In short, it seems that academic legal debates could learn something from software modeling.

My view, informed by software modeling, is that Hart and Fuller are both wrong, but Hart is further off. Hart misses objects and relationships between objects in the world, so his model is broken. Fuller sees them but invokes purpose as yet another object, when it should be a set of constraints the code is required to satisfy, so his model is overly complicated. In Fuller's defense, however, his model does gain something at the expense of that complexity, e.g. it's adaptable over time; purposes change; the purpose of the park today may not be exactly what it was a hundred years ago.
 

Shag from Brookline:

How about a segue from "vehicle" to the ... drumroll .... Segue!

In the interest of accuracy, that vehicle is called the "Segway". I'm sure the pun was intended, though. I did some work for Dean Kamen -- the inventor -- a while back (but not on that'that was after my stint up there). He's a character and quite a brilliant and creative person....

Cheers,
 

I stand (as that is how one rides the Segway) corrected. Like Frank Sinatra (aka Paul Anka), I spelled it my way.

By the segue, an alternative to the orange box scooter was to use another two by four perpendicular to the base two by four (with 45 degree angle slat supports on each side), thus eliminating the orange box (which was useful for storage but lousy for speed and manueverability). I don't see orange boxes around any more. This is how Sunkist oranges were shipped back then, each orange wrapped in orange tissue paper with Sunkist markings. I recall in the late 1930s that a tailor in our neighborhood would collect the tissues from a local fruit and vegetable store and keep them in his toilet for use where the sun don't shine.

Dean Kamen is indeed quite a guy. A Sixty Minutes feature demonstrated this. But the Segway has not caught on, at least here in the Boston area - and mopeds have dropped off as well. Perhaps because of gas prices, we don't have to worry about vehicles coming into the park, somewhat mooting this revisit with Hart (not Bart).
 

While Brian is correct that when asked on would admit that a bicycle fits within the definition of a vehicle (almost anyone would; it is a mechanical mode of transport), he is wrong that native speakers of English commonly refer to bicycles as vehicles (no one would say that without prompting). By contrast, people commonly refer to automobiles as vehicles, especially in legal contexts ("Please step away from the vehicle."). That difference in usage is what places automobiles within the core meaning and bicycles and roller skates without. It is not underlying purpose, but rather simply how native speakers of English ordinarily use language that sets the boundaries of meaning. I would say that Hart, like many philosophers of this time, is simply assuming that we accept ordinary language philosophy, and operating in a world that is not as obsessed with the hyperliteralism of analytic philsophy as ours is today.
 

I would say that Hart, like many philosophers of this time, is simply assuming that we accept ordinary language philosophy, and operating in a world that is not as obsessed with the hyperliteralism of analytic philsophy as ours is today.

If formalists would agree that language is a complex interaction of custom, word, and real world reference as you did in your example, there'd be no problem. They won't (at least not as I understand them).

From a strictly logical perspective, your example won't work to justify the formalists. All cars may be "vehicles", but that doesn't mean all vehicles are "cars". We can only get to the latter conclusion by using external references, which formalists deny the need for.
 

From a strictly logical perspective, your example won't work to justify the formalists. All cars may be "vehicles", but that doesn't mean all vehicles are "cars". We can only get to the latter conclusion by using external references, which formalists deny the need for.

I don't think Hart suggested that all vehicles are cars. In fact, I think he explicitly stated that this was not the case. He argued that some judges might plausibly interpret the statute literally, so that vehicles (including cars, buses, semis, motorcycles, tanks, hovercraft, etc.) were prohibited, and things that are not vehicles were not. He conceded that there would be a space of vagueness where meaning could not decide cases, but argued that many disputes could be settled based on meaning alone.

Moreover, I don't think most formalists would deny the need to look to external sources to determine meaning when meaning is unclear. Indeed, I can't think of anyone who has made that claim.
 

Here's a perfect example of the formalist problem. It's a quote from Brad Setser's blog:

"The resulting overall external deficit was financed, at least in part, by the buildup of dollar reserves by the world’s central banks – not by a buildup of dollar-denominated financial assets among private investors abroad. Someone in London was buying US corporate bonds — a category that includes a wide range of asset-backed securities. But the crisis has revealed (I think) that much of that demand came from vehicles sponsored by US and European financial institutions that funded themselves by borrowing dollars. They took on credit risk, not currency risk."

I assume that the sign does not ban government bonds, but I'd love to hear a formalist explain why.
 

I don't think Hart suggested that all vehicles are cars.

I don't think he did either. I thought John Taylor's post might be.

I don't think most formalists would deny the need to look to external sources to determine meaning when meaning is unclear.

The problem is, at least from the perspective of the non-formalist, that meaning is NEVER "clear". Meaning always depends on external sources. That's what we see as the flaw in formalism.
 

Mark Field: I think a formalist could plausibly reply that most English speakers do not think of investment strategies when they hear the word "vehicle," absent contextual indications that vehicle is being used in that metaphoric way, and not in its primary usage. Some rules might present this as a plausible amibiguity -- for instance, if a commodities exchange prohibited the "transfer of any vehicle in the parking garage." But I don't think ordinary speakers of English find "no vehicles in the park" to be ambiguous in this way.

To be sure, your example points out that our brains probably engage in some automatic rejection of possible meanings, based on the hypothetical intent of a likely speaker, as inferred from context. That doesn't mean, however, that we need to know the actual purpose of a legislature to know that the ordinary meaning of the phrase "no vehicles in the park" relates to modes of transport and not to modes of investment. Especially when one sense of a word is strongly dominant in usage over an alternative sense.
 

The problem is, at least from the perspective of the non-formalist, that meaning is NEVER "clear". Meaning always depends on external sources. That's what we see as the flaw in formalism.

If you think formalists are claiming that we ever know meaning separately from our knowledge of the conventions of the English language, you are picking on a straw man. Any thoughtful formalist will readily concede that they know the meaning of words based on a large volume of extra-textual information. They will also concede that meanings are often vague or ambiguous. The formalist claim is simply that, when a meaning applies (or does not apply) to an event without vagueness or ambiguity, a decisionmaker can decide cases (if they wish to) based on the meaning-facts alone.

So, take the rule:

No members of the species Canis lupus familiaris are allowed within the city limits of Los Angeles.

Sure, there will be edge cases (what if I own a half-dog, half-wolf?). But can you really disagree that most questions as to whether this rule applies can be determined by reference to meaning facts -- that is, facts about what things are referred to as members of the dog species, and what things are not (combined of course with a map consultation to determine the city limits of LA)?
 

Seems obvious to me that the problem is not whether words are self-defining or whether they have to be understood from context, but that this is a badly drafted rule. If the assumed purpose was to ban cars and the like, except when necessary, the rule should say so: "No unauthorized motor vehicles in the park."
 

Does the introduction of "Canis lupus familiaris" suggest Mark-ing the trail of meaning and how meaning is to be sniffed out in these dog days of July?
 

"From a strictly logical perspective, your example won't work to justify the formalists. All cars may be "vehicles", but that doesn't mean all vehicles are "cars."

But John's not arguing that, nor was Hart. His point, and my point, is simply that all cars are vehicles, that there's no one who has any doubt about whether cars are vehicles. Hence, cars are in the core of the rule. Bikes, scooters, wheelchairs, strollers, however, all aren't commonly described or thought of as vehicles - though they are technically such - so they're in the penumbra. Or put it this way - if 'vehicles' applies to anything, it has to apply to cars. There's no one whose usage of 'vehicle' is so idiosyncratic that they call scooters vehicles but don't call cars vehicles. That's just a fact.
 

The formalist claim is simply that, when a meaning applies (or does not apply) to an event without vagueness or ambiguity, a decisionmaker can decide cases (if they wish to) based on the meaning-facts alone.

The problem I have with this is that your previous sentence agreed that "Any thoughtful formalist will readily concede that they know the meaning of words based on a large volume of extra-textual information."

We can't just stop half-way through the process (at "extra-textual information => meaning). Going through that process doesn't then give us a tangible thing ("meaning"). It gives us a concept. In order to determine "meaning", we need to take the specific case, compare that to the experience of previous cases, and make judgments about probability, social context, and other factors. As I understand them, formalists deny that subsequent process.

I think a formalist could plausibly reply that most English speakers do not think of investment strategies when they hear the word "vehicle," absent contextual indications that vehicle is being used in that metaphoric way, and not in its primary usage.

Of course they can, but then they're appealing to external factors, which is exactly what formalism tries to avoid.

The problem is that "vehicles" has multiple meanings. In order to decide which ones do/should apply in a given case, we can't just look at the dictionary. We can only reach a conclusion based on external considerations.

That doesn't mean, however, that we need to know the actual purpose of a legislature to know that the ordinary meaning of the phrase "no vehicles in the park" relates to modes of transport and not to modes of investment.

Sure we do, since otherwise we have no way of resolving the problem. We actually infer intent of the legislature from our ordinary expectations. That's perfectly ok, but we need to recognize that we're doing so.

No members of the species Canis lupus familiaris are allowed within the city limits of Los Angeles.

The term "species" is actually a very contested one within biology. A good biologist would recognize real problems with this statute.

But there are problems with it anyway. Examples: can a wolf stick one paw (a "member") over the city line? Can an airplane fly over the city with a wolf in it?

But John's not arguing that

He may not have been. It struck me that his post could read that way; if not, then no problem.

His point, and my point, is simply that all cars are vehicles, that there's no one who has any doubt about whether cars are vehicles. Hence, cars are in the core of the rule.

Yes, and for this discussion we've all agreed to that. But this doesn't resolve the issue, which is "what other things, besides cars, are excluded by the terms of the statute?".

Limiting the exclusion to cars solely because all cars are vehicles runs afoul of the logical error I noted above. There needs to be another reason given to address the issue of other things included by the word "vehicle".
 

The term "species" is actually a very contested one within biology. A good biologist would recognize real problems with this statute.

But there are problems with it anyway. Examples: can a wolf stick one paw (a "member") over the city line? Can an airplane fly over the city with a wolf in it?

But neither Hart, nor I, nor most formalists, claim that all cases can be resolved based on meaning facts alone. Only that some cases can be. And seriously: can you possibly contest that it is perfectly clear, from the plain meaning of the language alone, that the rule I provided:

(1) forbids having a schnauzer in downtown LA;

(2) does not forbid having a schnauzer in San Francisco; and

(3) does not forbid having a housecat anywhere?

If you agree that the rule is neither vague nor ambiguous as applied to these examples, then you effectively concede Hart's point: some legal questions (but not all) are capable of being resolved based on the meaning of rules, without resort to purposive considerations.

In order to determine "meaning", we need to take the specific case, compare that to the experience of previous cases, and make judgments about probability, social context, and other factors. As I understand them, formalists deny that subsequent process.

And they deny it correctly. The meaning of a rule does not change across different cases, because meaning is not determined by reference to situational factors, but by reference to the conventions of linguistic communication. Case-specific factors might provide reasons to decline to apply a written rule, and they might give us reasons to decide a case one way rather than another when the rule's meaning cannot provide an answer. But they don't change what the rule says.
 

Bicycles are vehicles under the uniform traffic code; my bicycle is my sole vehicle. Signs now often read: no motorized vehicles to differentiated between which category of vehicles is, in fact, prohibited.
 

The meaning of a rule does not change across different cases, because meaning is not determined by reference to situational factors, but by reference to the conventions of linguistic communication. Case-specific factors might provide reasons to decline to apply a written rule, and they might give us reasons to decide a case one way rather than another when the rule's meaning cannot provide an answer. But they don't change what the rule says.

Your post contains other passages, but I take this to be the crux of it, so I'll respond to this.

The basic problem is that this view treats meaning as frozen at a particular point in time. As I understand you, the formalist agrees that we derive "meaning" from context and history, but that once we've done so, we've achieved Meaning. This achievement -- Meaning -- is now a thing in itself which we can use as a tool.

That's not how it works, in my view. I agree that we achieve "meaning" by a dialectical process of history and context. That process, though, never ends. There is no point at which we achieve Meaning. Every additional use of a term constitutes new evidence of usage (including context, purpose, semantics, etc.) which we then use to add to "meaning".

If I can use an example, I'll take one which I believe David Hume was the first to use. We may say that all swans are white only because every swan we've ever seen is, in fact, white. But we can't ever prove that all swans are white because it remains possible that somewhere, sometime, we'll see a black swan (just ask Nicholas Taib :)).

What this means is that the category "swan" always remains contingent. We never can say, definitively, that it includes the concept "white". The "meaning" of swan is not settled and, logically, never can be.

So it is with all words, all the time. They are never fixed. In order to determine "meaning", we need to know context (including, in the specific case of the park, purpose).
 

Readers who can remember when this blog was the go-to source for legal news on the use of torture by the U.S. government, may wish to examine Spencer Ackerman's article on the latest torture memo.
 

Mark Field: do you admit that the three examples I provided above could be resolved by reference to the meaning of the rule alone? If not, I'd like to know where you think the vagueness or ambiguity lies.

The basic problem is that this view treats meaning as frozen at a particular point in time. As I understand you, the formalist agrees that we derive "meaning" from context and history, but that once we've done so, we've achieved Meaning. This achievement -- Meaning -- is now a thing in itself which we can use as a tool.

Actually, I don't claim this. I don't blame you for thinking I do, given that some legal formalists make claims that could be described this way (Larry Solum's fixation thesis sounds something like this, for instance). But one needn't think that meaning is fixed in time to think it is a fact. Let me explain.

Meaning is a fact about how people use language. You are right to point out that people's use of language changes over time. Furthermore, different groups of people may use language in different ways. So, really, meaning can only be defined by reference to a time and a group of language users. If we wanted to formalize a little bit, we could say that the meaning, M, of a word (w) is conditional on both time (t) and group (g). So M is a function of three variables, w, t, and g.

(I'm using individual word meaning to keep things simple. Sentence meaning involves more rules, of course, and specific utterances require attention to context facts as well.)

You are correct to note that meaning can change over time. Thus, people at time T1 (when the no vehicles in the park rule was adopted) might include a different group of things in the set [vehicles] than people at time T2. In other words, bicycles might be within the set M(vehicle, T1, G1) but not within the set M(vehicle, T2, G2).

Does this prove Hart wrong? No, for the following reason. He argued that it is possible, in some cases, for judges to determine the content of legal doctrine by reference to meaning facts alone. Judges can do this by specifying a time slice at which they will examine meaning, and by identifying the relevant group to whom they will look to determine patterns of usage. Originalism is one variant -- just always look at ratifiers at T1. Present meaning textualism could be another alternative -- just look at T-present. But whichever time slice one picks does not change the basic methodology -- meanings are still determining the outcomes of some cases, just (potentially) different meanings.

You argued that the individual facts of a case will always be relevant to determining word meaning. I think this is wrong, because changing an outlier usually doesn't change the value of a median very much. So, if I start using the word "kumquat" to refer to basketballs, usually this does not become a convention of the English language. I have to get a lot of other people to agree with me about this usage before the meaning of the word "kumquat" actually shifts (at least if we are using the set of American english speakers as our G ... if the set is smaller -- say G = my friends -- than less effort my be involved in changing M).

Similarly, legislatures can't always change the meanings of words just because they want to. So some cases will be resolveable without looking at the legislature's purpose, because meaning won't always depend on that purpose.

Maybe it would help, however, if you could provide some counterexamples. Why would I need to look at the facts of a specific case in order to determine whether my example rule (dogs in LA) was being broken, in the three examples I gave?
 

So, if I start using the word "kumquat" to refer to basketballs, usually this does not become a convention of the English language.

Agreed.

Furthermore, different groups of people may use language in different ways. So, really, meaning can only be defined by reference to a time and a group of language users.

Here's the problem: the "different groups" to which you refer includes different groups within the set of people to whom a rule is supposed to apply. That's why we can see disagreement among people as to what a rule "means".

I assume you'd agree this is true. But if you do, then I don't understand why you would continue to rely on formalism.

Thus, people at time T1 (when the no vehicles in the park rule was adopted) might include a different group of things in the set [vehicles] than people at time T2.

The problem is that the rule might include a different set for people in group 1 than it does in group 2.

Time and group are problems (and "group" can be very small indeed -- two people, perhaps, especially if they both sit on the Court). And time can be very short at the margins. As Shag's example of the Segway shows, the rule can become ambiguous because of external events in the world, not because of internal changes in "meaning".

Does this prove Hart wrong? No, for the following reason. He argued that it is possible, in some cases, for judges to determine the content of legal doctrine by reference to meaning facts alone. Judges can do this by specifying a time slice at which they will examine meaning, and by identifying the relevant group to whom they will look to determine patterns of usage. Originalism is one variant -- just always look at ratifiers at T1.

This assumes that a group as large as "ratifiers" actually had a shared meaning. I doubt they did, but it's unprovable either way. In any case, the only way we could determine the meaning to the ratifiers would be to consult not Meaning, but the context of the times. That's why originalist arguments end up as history debates (bad ones, mostly). Every participant recognizes that without the history, they can't show the meaning.

Maybe it would help, however, if you could provide some counterexamples. Why would I need to look at the facts of a specific case in order to determine whether my example rule (dogs in LA) was being broken, in the three examples I gave?

I did give one counterexample. Here's another one: the schnauzer is dead. Violation or not?
 

Mark Field: the point of listing three examples was to show that Hart is correct, because meaning can resolve some cases. In order to show that he was wrong, you have to be able to show that meaning cannot resolve any cases. As I said, he (and I) concede that there will be cases of dead dogs and half wolves. The point is that many cases won't be ambiguous. Ergo, I asked you: Why would I need to look at the facts of a specific case in order to determine whether my example rule (dogs in LA) was being broken, in the three examples I gave? So please address the examples I gave (if you don't wish to tacitly concede the main point).

Here's the problem: the "different groups" to which you refer includes different groups within the set of people to whom a rule is supposed to apply. That's why we can see disagreement among people as to what a rule "means".

I assume you'd agree this is true. But if you do, then I don't understand why you would continue to rely on formalism.

Meaning can be defined so long as the group is defined. So the fact that other groups might disagree doesn't show that formalism cannot succeed; it just shows that a formalist judge will need to decide what T and G he wants to work with in identifying M.

And note that not all members of G have to agree in order for M to be defined; there just has to be a median rule. So if G is taken to be the American citizenry, it doesn't matter that the two litigants disagree about meaning, because one of them can be wrong. See, e.g., the success of tax protesters who claim that wages are not income.

Overall, you seem to be confusing Hart (and me) with some sort of originalist bogeyman. Note that I haven't argued ANYWHERE in this thread that the original meaning should control case outcomes. I'm just saying that non-purposive, meaning-based adjudication is possible in some cases (the thesis that Hart was defending, and that Fuller was contesting). So please save the fusillades against originalism for another comment thread.
 

Readers who can remember when this blog was the go-to source for legal news on the use of torture by the U.S. government, may wish to examine Spencer Ackerman's article on the latest torture memo.

I assume Prof. Lederman is on vacation. In the meantime, philosophy is the last refuge of the unproductive.

Overall, you seem to be confusing Hart (and me) with some sort of originalist bogeyman. Note that I haven't argued ANYWHERE in this thread that the original meaning should control case outcomes.

Fair enough. Though my issue is more with textualism than originalism.

the point of listing three examples was to show that Hart is correct, because meaning can resolve some cases.

I'm not at all sure you've shown that. Let's take the Schnauzer case. Suppose two possible debates in the City Council prior to the ordinance:

1. The Council expressed concern about dog waste polluting the ground and water supply.

2. The Council can no longer bear the expense of disposing of canine carcasses.

In this case, at least, purpose is necessary to resolve the issue I posed about the interpretation of the statute.

Now, you'll respond that you agree, but we don't need to know purpose in order to know that live schnauzers are banned. Thus, formalist rules can solve some cases, just not all cases.

I have two responses to this. First, it's hard to know in advance of a particular situation whether formalism will resolve a dispute or not. It's only in the context of a particular dispute that we can test statutory "meaning" against the real world. That consideration of context seems to me something which formalists claim is not necessary.

Second, let's go back to the original example and consider how people interpret the word "vehicle". Suppose 100% of Americans today interpret the word to include "cars". Only 50% interpret it to include "bicycles". In the absence of knowing the real world situation -- was it a car or bicycle in the park? -- we can't decide what the statute "means".

But it's actually worse than that. The statute is designed to apply universally. But only 50% of the group to which it's supposed to apply interprets it as precluding bicycles. In what sense, then, can "formalism" resolve this issue. And if formalism is only effective when essentially 100% of the relevant group agrees, what good is it?

I suppose that in reply you'd say that we can still decide the issue of bicycles, but I don't think we use formalism when we do. Instead, we consider context, purpose, majority rule, and other factors. Sometimes the decision is more or less arbitrary and thus an exercise of power rather than formalism.

I find I'm running out of things to say here, so I may just let you have the last word. I will say this: the position I've taken here is somewhat stronger than my actual views, though not much. I do agree that formalism can resolve a few disputes; it constrains the universe of possibilities (in the way that, for example, nobody thinks "vehicle" includes "kumquats"). That constraint is helpful in that it allows us to have this debate. But it's not very useful in resolving any meaningful (pun intended) dispute in the real world.
 

I do agree that formalism can resolve a few disputes; it constrains the universe of possibilities (in the way that, for example, nobody thinks "vehicle" includes "kumquats"). ... But it's not very useful in resolving any meaningful (pun intended) dispute in the real world.

I actually agree with this, to a point. Formalism, properly understood, shouldn't resolve many serious disputes about legal meaning, because rules of law are mostly disputed precisely when the rules aren't clear. But Hart wasn't arguing with Fuller about what judges should do when the law was unclear; he was developing a theory of how law functions, and that involves explaining how it works when it is clear as well as when it is unclear. It sounds like, at the end of the day, you don't really contest the basic claim he was making against Fuller: that the law can sometimes function linguistically, without attending to purpose or equities. Whether that is a bug or a feature, in your view, is likely to come down to the relative weights you give to rule of law values as compared with the values of equity.

I can't resist one parting shot, however: your intuition that arguments are rarely resolved by formalism may be shaped by focusing too much on Supreme Court cases (a tiny fraction of legal disputes), rather than looking at arguments made at the retail level (e.g., state and federal trial courts). (I'm not saying that this is necessarily true in your specific case, just that such a focus often motivates people to deny that the law is ever determinate.) Down in the trenches, lawyers throw a lot more arguments into the mix, including lots of arguments asking judges to act against the plain meaning of statutes or binding precedents. If they couldn't rely on formalism, trial judges would have to spend a lot more of their time reinventing the wheel.

Anyway, fun talking to you. Have a great weekend!
 

I finished reading Lewis A. Grossman's law review article titled "Food, Drugs, and Droods: A Historical Consideration of Definitions and Categories in American Food and Drug Law" that I referenced in a much earlier comment. The various food and drug acts over the years sought to provide "correct" definitions for "food" and "drugs" but definitional issues continued to be raised. This article demonstrates the relatively minor "vehicles" issue in Hart's article with more serious health issues. Back in 1906, people had an understanding of what constituted "food." Yet properly defining "food" legislatively was difficult, as demonstrated by the litigation that followed, and continues. Food for thought can become a drug on the market.

And speaking of formalism (or textualism?), I hope to complete over the weekend Mitchell N. Berman's "Originalism is Bunk (Draft 7/10/08)" that is available on SSRN linked to at Larry Solum's Legal Theory. A sequel might be titled "Formalism is Bunk."
 

But Fuller cannot be dismissed so easily. To see why he might be right, read these standard definitions of “vehicle:” “1) any means in or by which someone travels or something is carried or conveyed…; 2) a conveyance moving on wheels, runners, tracks, or the like, as a cart, sled, automobile, or tractor.” Now ask: What in the literal (conventional) meaning of “No vehicles in the park” determines that automobiles are in the obviously prohibited core, while bicycles and roller skates, as Hart claimed, are in the ambiguous penumbra?

The problem here is that a dictionary definition is not a particularly good way of determining the meaning of a word. No dictionary provides a true definition in the sense of providing the necessary and sufficient conditions for appropriate use of the word in ordinary language. Rather, linguists [1] recognize that dictionaries provide "more or less random lists of quasi-synonyms," not lists of necessary and sufficient conditions. Anna Wierzkika, Semantics: Primes and Universals 240 (1996). No scholar of linguistics or semantics (or literature) will tell you otherwise.

Judges and legal scholars have long persisted in purporting to treat dictionaries as providing true definitions (necessary and sufficient conditions) but this practice is a serious error. A dictionary-based argument is simply irrelevant.

This doesn't mean that Fuller is wrong, but it does mean that your argument is no good.

Incidentally, why doesn't this blog allow blockquote tags?

[1] i.e., academic experts on language. You can find them in your school's Department of Linguistics, the existence of which legal scholars seem to be shockingly unaware.
 

It is within the “core meaning” of this rule that automobiles are included but baby strollers are not because the implicitly understood purpose, not literal meaning of the terms alone, makes it so. Purpose and literal meaning are intertwined in interpretation, neither dictating but both in play.

This is actually an excellent example of the problem with your erroneous reliance on dictionaries. It can easily be dismissed by saying the reason a baby stroller is not a "vehicle" under the rule is that in ordinary language people do not refer to baby strollers as "vehicles." The bulk of the hits for <"baby stroller" vehicle> concern baby strollers that double as car seats and how they'll fit into your vehicle, meet federal motor vehicle safety standards, etc. I could find two or three examples of someone calling a baby stroller a "vehicle" but this is clearly an extremely rare use of the term and I doubt most people would accept it as a correct use of the term. I see no reason to think a baby stroller falls within the "core literal meaning" of "vehicle."
 

"His point, and my point, is simply that all cars are vehicles, that there's no one who has any doubt about whether cars are vehicles. Hence, cars are in the core of the rule."

Yes, and for this discussion we've all agreed to that. But this doesn't resolve the issue, which is "what other things, besides cars, are excluded by the terms of the statute?".

No, the issue, at least as framed by Tamanaha, is if there is any core meaning to the statute at all. Hart grants that there's a penumbra where we have to look to purpose; Fuller says we need purpose to even know that cars violate the rule. Tamanaha agrees with Fuller because he can't see why cars are any more core than strollers, and I'm simply saying that in normal usage, everyone calls cars vehicles and no one calls strollers vehicles.
 

Tamanaha agrees with Fuller because he can't see why cars are any more core than strollers, and I'm simply saying that in normal usage, everyone calls cars vehicles and no one calls strollers vehicles.

What a word 'means' is dependent on what the discussion is about. Or in this case, what the rule is about. This rule is about parks. That causes an immediate assumption about how the word 'vehicle' is being used.

To say that the colloquial usage of vehicle as motor vehicle is the 'core meaning' of the word is really just to say "well, it's the most common usage." That might be true, but it is still the context which tells us how to interpret the word.

"The vehicle for the transmission of this virus is bodily fluid, not air."

"Film is a more powerful vehicle for his artistic vision than the written word."

"Core meaning" is a contrivance, in this case it appears, for colloquial use. But the key here is that once we know what the discussion is about (parks) that determines purpose and purpose directs our assumptions about meaning/usage.
 

Then, of course, there are matters of strictly logical structure. From the wonderful The Reader Over Your Shoulder, by Robert Graves and Alan Hodge, I cite the Dog-Walking Ordinance:

From the Minutes of a Borough Council Meeting:

Councillor Trafford took exception to the proposed notice at the entrance of South Park: "No dogs must be brought to this Park except on a lead." He pointed out that this order would not prevent an owner from releasing his pets, or pet, from a lead when once safely inside the Park.

The Chairman (Colonel Vine): What alternative wording would you propose, Councillor?

Councillor Trafford: "Dogs are not allowed in this Park without leads."

Councillor Hogg: Mr Chairman, I object. The order should be addressed to the owners, not to the dogs.

Councillor Trafford: That is a nice point. Very well then: "Owners of dogs are not allowed in this Park unless they keep them on leads."

Councillor Hogg: Mr Chairman, I object. Strictly speaking,=this would keep me as a dog-owner from leaving my dog in the back-garden at home and walking with Mrs Hogg across the Park.

Councillor Trafford: Mr Chairman, I suggest that our legalistic friend be asked to redraft the notice himself.

Councillor Hogg: Mr Chairman, since Councillor Trafford finds it so difficult to improve on my original wording, I accept: "Nobody without his dog on a lead is allowed in this Park."

Councillor Trafford: Mr Chairman, I object. Strictly speaking, this notice would prevent me, as a citizen, who owns no dog, from walking in the Park without first acquiring one.

Councillor Hogg (with some warmth): Very simply, then: "Dogs must be led in this Park."

Councillor Trafford: Mr Chairman, I object: This reads as if it were a general injunction to the Borough to lead their dogs into the Park.

Councillor Hogg interposed a remark for which he was called to order; upon his withdrawing it, it was directed to be expunged from the Minutes.

The Chairman: Councillor Trafford, Councillor Hogg has had three tries; you have had only two.

Councillor Trafford: "All dogs must be kept on leads in this Park."

The Chairman: I see Councillor Hogg rising quite rightly to raise another objection. May I anticipate him with another amendment: "All dogs in this Park must be kept on the lead."

This draft was put to the vote and carried unanimously, with two abstentions.
 

Between vehicles and dogs, that park isn't safe for humans or cats. Even (or especially) the "standards" of Originalism fail to provide guidance.
 

In an earlier comment, I closed with:

"And speaking of formalism (or textualism?), I hope to complete over the weekend Mitchell N. Berman's 'Originalism is Bunk (Draft 7/10/08)' that is available on SSRN linked to at Larry Solum's Legal Theory. A sequel might be titled 'Formalism is Bunk.'"

I just finished reading the 92 pages of this excellent article, a quite time consuming read since its extensive footnotes could not be ignored. Berman doesn't come out and say that "Originalism is Bunk' but raises serious questions as to whether it should be originalism (however defined) or the highway in interpreting the Constitution. Perhaps those reluctant to allot the time to read this article might first read its well considered conclusion (something I do not normally recommend) perhaps to encourage a full read. The term originalism is too readily bandied about without definition. Berman tries to address this. (I compare this with references to "free trade" and "free markets" but without definitions.) Berman needs to do a book on this subject.
 

You might read Graham Hughes' comments on Hart v. Fuller:
From Graham Hughes, "Rules, Policy and Decision Making,"77 Yale Law Journal 411-439 (1968); [footnotes omitted].

" Professor Fuller, repudiating Hart's way of talking about statutory interpretation, begins by making the point that Hart misleadingly seems to imply that interpretation is commonly a matter of the vagueness or ambiguity of single words. It is rather, Fuller suggests, more often a business of assigning meanings to sentences, paragraphs or even pages of text. But even if the question should present itself as turning on the interpretation of a single word, the certainty that we may feel about the propriety of a given interpretation is, in Fuller's view, derived not from linguistic usage but rather from the clearness of the purpose of the rule, or perhaps from the circumstance that the answer would be the same no matter which of several possible purposes underlies the rule. So, on the latter hypothesis, no matter whether the purpose of Hart's rule prohibiting vehicles is to suppress noise or to prevent air pollution, it would clearly apply to driving a Cadillac through the park. If a tank were driven into the park in order to be mounted on a pedestal as a war memorial, the decision might be in doubt, not because of any doubt concerning the usage of 'vehicle,' but rather because of our doubt whether any conceivable purpose for the rule would require or recommend its application to this case.
"The principal task of statutory interpretation for Professor Fuller is thus always a search for purpose. How the search is to be conducted and what relationship there is between the concepts of law and policy he does not discuss at any length, though he refers to a series of questions that could be asked, questions which are very reminiscent of the old common law principles of statutory interpretation as enunciated in Heydon's case: 'What can this rule be for? What evil does it seek to avert? What good is it intended to promote?' He does not consider the possibility of detecting plausible but divergent purposes. …
" In the first place legal rules differ enormously in their concreteness and particularity. We may talk about a rule that 'A will must have two witnesses' and again about a rule that 'Contributory negligence will defeat the claim of a plaintiff in a negligence suit.' But these rules clearly differ in their generality and in the amount of creative discretionary adjudication that must go into their application. And they may both be contrasted in these same respects with a principle like 'A contract may be illegal if it offends against public policy' or a maxim that 'He who comes to equity must come with clean hands.' No precise distinctions can be made between rules, principles and maxims, but the terms serve to mark differences of degree in the precision of guides to decision-making. Rules are fairly concrete guides for decision geared to narrow categories of behavior and prescribing narrow patterns of conduct. Principles are vaguer signals which alert us to general considerations that should be kept in mind in deciding disputes under rules. So we decide under rules but in the light of principles. A maxim is a principle that has been distilled in a traditional, aphoristic form. In marginal cases rules may be applied in the light of principles, but sometimes, when no concrete rule is present and relevant, a case must be decided by a direct application of principle or maxim to the facts without the interposition of a more concrete rule.
" The first step in any discussion of how issues of policy enter into decision-making should be an examination of how these issues are often very embedded in these different layers of material used in legal reasoning. When is a recourse to considerations of policy in applying a rule a reference to extra-legal materials and when is it, at least in part, a reference to a more central legal notion in the form of another rule or principle or maxim? Is there some criterion by which we must say that rules are law and principles or maxims are not law, if this, indeed, is what Professor Hart might be taken to imply? … (418-420)

" These [omitted] examples reveal that in the edifice of argumentation in which a legal problem is debated and in the structure of reasoning by which a judicial opinion supports a judgment, there is constant movement between different layers of material. Some of this material is concrete and particular, though still perhaps vague or ambiguous at its edges, as with our rule about the signature at the foot or end of the will. Some is much more general, supervisory and policy-charged, as with the notion that wherever possible the wishes of the testator should be effected. Some is formally legal in the strongest sense as with the interpretive directions in the Wills Act Amendment Act. Some is less formally stamped with authority but yet remains in an important sense doctrinal, as with the principle that generally respect should be accorded to precedent. Some has only faint marks of legal formality, as with the notion that hard cases make bad law. But we are dealing in every instance with the more or less concrete, the more or less formally legal. To attempt [as Hart does] to draw sharp lines between law and policy or between legal and non-legal material in this context sadly oversimplifies a complicated problem.
" But what if our experience with the particular judge in question affords us knowledge that he is in the habit of taking bribes? We have referred earlier to 'the stock of ideas which by observation we know influence judges in deciding cases.' How then can we discriminate between the impact on a judge of the interpretive directions in the Wills Act Amendment Act and, on the other hand, the influence of a bribe? It is important to stress that the analysis offered here does insist on the need for drawing a distinction between these two phenomena. Otherwise statements about the nature of law and inquiries into legal reasoning would, indeed, become matters only of what judges do and we would be back with the excesses of early American realism. What we are concerned with in our analysis of the decision-making process is the structure of argumentation, which is intimately connected with what judges do but is certainly not the same as what they do. The philosophical inquiry about legal reasoning is markedly different from a psychological investigation into which influences in fact determine decisions or even into which arguments are in fact most likely to be acceptable or convincing. The most obvious point to make in this connection is that the judge's taking a bribe is not an argument at all. It is an explanation for his judgment in the sense that the bribe is a motivation, but it is not a reason in the sense of a justification that could be openly stated in his opinion. It is not therefore an instance of legal reasoning: it does not find any place among those arguments that, by consensus of the participants in the system, are regarded as legitimate materials for building a structure of persuasion. … (425-426)

"One can agree with Professor Hart that it is less mysterious to speak of rules being interpreted in the light of purposes. But at this point it is necessary to insist that the purposes of which we speak are sometimes partly entwined in the rule itself, for policy notions may be more or less revealed and more or less embedded in prescriptive language, may be sometimes discoverable in other rules of the system and sometimes in principles, maxims and doctrines, so that purposes are often at least half manifest in legal material itself.
" The process of legal reasoning is thus one of deploying a wide range of acceptable arguments the scope of which blurs any answer to the question of what is and what is not law. If courts are generally very willing to listen to (though not necessarily to be convinced by) the argument that a certain interpretation of a statute would lead to a grave injustice, why should we not regard the argument from injustice as a legal one? Certainly it has a different status from the argument that the court should decide against the plaintiff because he is ugly. Does it, on the other hand, stand on any different footing from the argument that a court should adopt a certain interpretation because there are earlier authoritative decisions which hold that way? It would not suffice to say that the latter is a legal argument because courts must be persuaded by it while the argument from injustice is only one that they may listen to, for courts have frequently brushed aside precedent and declared openly that for reasons of justice they will create a new rule. Nor can we say that one argument is to be classified as legal and the other not because observation leads us to believe that the one is as a matter of fact more likely to succeed than the other. This is often not a determination that can be made and, in any case, the discussion is not about what arguments are in fact most likely to succeed but about which ones are acceptable in the sense that they will be listened to and that an obligation will usually be felt to rebut them if they are to be rejected. The idea of acceptable argument here is thus linked intimately with the ideas of audience and dialogue. In this way legal argument is very like moral argument and the everyday business of prudent decision-making in personal affairs. But in the legal context the audience is a specialized one with particular craft techniques and traditions which impose a more obvious hierarchy of cogency on arguments than is the case with everyday practical reasoning. Arguments about injustice, hardship and the like are quite acceptable in the legal sphere, but as legal arguments they may have to yield to the plain meaning of a statute or to the weight of a venerable precedent in cases where they would have carried the day in a moral argument. Where the meaning of a statute is not plain, or where precedent is not massed, such arguments are more likely to succeed. But the arguments used, listened to and sometimes accepted as persuasive in legal reasoning certainly embrace a wide field of arguments also employed in moral discussion and practical reasoning.
" The upshot is that the whole distinction between which rules can be identified as 'valid' and which cannot, to which the positivists attach so much importance, is of little help in an analysis of legal argument and decision-making. It is of little help because legal argument has to do with many concepts other than rules, and to say that a proposition cannot be formally identified as a valid rule of the system is therefore not to say anything about whether it is appropriate and usable in legal debate. Hart's stigmatizing of views which confuse what the law is and what the law ought to be is not in point here, for what is being asserted is that the character of legal reasoning in the decision-making process is such that, though indeed there may be a difference between what the law is and what the law ought to be, the law itself is a collection of interwoven prescriptive and purposive statements which we marshall and deploy in the adjudication of disputes and also in the tendering of advice. Does this involve revising our concept of a rule in a 'mysterious' fashion, which was the tendency that Professor Hart justifiably castigated in Professor Fuller's views? It certainly involves asserting that rules often combine with their prescriptive elements more or less incomplete purposive revelations which are used in conjunction with other material in the interpretation of the rule, but it is difficult to see what is mysterious about this or what generally accepted concept of a rule it is taken to be revising. … (430-431)

" In our investigation of the concept of law we are likewise interested in a rule system primarily because it has a significant effect on behavior and not merely because it is a collection of prescriptive sounding utterances. It is true that, as Professor Hart has pointed out, rule-governed or rule-oriented behavior has its own distinctive character in that it presupposes an ideology or attitude of acceptance, so that to understand it fully we must refer to phenomena more complex than statements of what people habitually do or predictions of what will probably be done. We must take account of attitudes and practices in referring to rules as standards for justification, for criticism and condemnation. But it is precisely this social phenomenon of acceptance and application that lifts a system of rules out of the printed page and makes it a system of law. …
"But the concept of a valid law does not appear to be at all the same as that of a good reason for a decision. Decisions by a court are not characteristically based on a reason but rather on an edifice of reasoning; they are not supported by separating valid from invalid rules (which would be so simple a task that disputes need never arise), but by arriving at an interpretation of materials generally acknowledged to be relevant in a fashion generally acknowledged to be acceptable. No judge was ever put in much of a quandary by the difficulty of deciding whether a statute emanates from his own jurisdiction or another. Certainly the identification of rules as belonging to the system is a subject worthy of philosophical analysis, but as a practical matter it occasiions no difficulty whatever and is scarcely worth the attention that has been paid to it by the analytical jurists. … (432-4)

" The tasks of law teaching are to impart sophistication in techniques of argument and reasoning. For this purpose, and for the elucidation of a legal system, we must add to the concepts of duty-imposing and power-conferring rules the notion of canons or standards of interpretation which serve more than one purpose.
" Sometimes, especially when contained in a statute, they function partly as a public justification of the enactment or as a declamatory statement of legislative policy. More often they are directives to officials, particularly judges, as to how they should work with the prescriptive rules of the system. When developed by the judges themselves in the form of principles, maxims and aphorisms they are a declaration of the shared understanding of craftsmen about how they should shape the materials on which they work. But, by their very nature, these interpretive directives are often capable of expression within the scope of a duty-imposing or power-creating rule, and for this reason it is not profitable to attempt to split them off and reserve the title 'law' for statements of pure prescription. Such an attempt would serve no useful purpose for, both by the criteria of formal validity and functional importance, such judgment standards meet the same tests as purely prescriptive statements.
" The concept of a rule is thus too narrow to explain the variety of material contained within a legal system. …
" For these reasons the American realist movement is in some ways a more fruitful and hopeful jurisprudential school than that of the modern analytical positivists. One careful reservation must be made on this comment. It is not meant as a denigration of the technique of sophisticated linguistic analysis, which is an invaluable weapon for attacking all problems of law and all questions of legal philosophy. The criticism is not directed at that technique but rather at the emphasis in such writers as Kelsen and Professor Hart on the centrality of the concepts of norm or rule. Such a monocular concentration has inevitably led to a lack of focus on the decision-making process. The American realists, although guilty of some crude analytical blunders, did perceive that the importance of the process of decision-making and also that the concept of a rule was of little help in its elucidation. The realist fallacy lay in the preoccupation with explaining the causes of decisions in a sociological or psychological context and in the inability to distinguish between motivation and argument. The need now is to return to a concentration on decision-making with an awareness of this distinction. (436-437) "

—From Graham Hughes, "Rules, Policy and Decision Making,"77 Yale Law Journal 411-439 (1968); [footnotes omitted].
 

You might read Graham Hughes on Hart v. Fuller. Here are some excerpts:
From Graham Hughes, "Rules, Policy and Decision Making,"77 Yale Law Journal 411-439 (1968); [footnotes omitted].

" Professor Fuller, repudiating Hart's way of talking about statutory interpretation, begins by making the point that Hart misleadingly seems to imply that interpretation is commonly a matter of the vagueness or ambiguity of single words. It is rather, Fuller suggests, more often a business of assigning meanings to sentences, paragraphs or even pages of text. But even if the question should present itself as turning on the interpretation of a single word, the certainty that we may feel about the propriety of a given interpretation is, in Fuller's view, derived not from linguistic usage but rather from the clearness of the purpose of the rule, or perhaps from the circumstance that the answer would be the same no matter which of several possible purposes underlies the rule. So, on the latter hypothesis, no matter whether the purpose of Hart's rule prohibiting vehicles is to suppress noise or to prevent air pollution, it would clearly apply to driving a Cadillac through the park. If a tank were driven into the park in order to be mounted on a pedestal as a war memorial, the decision might be in doubt, not because of any doubt concerning the usage of 'vehicle,' but rather because of our doubt whether any conceivable purpose for the rule would require or recommend its application to this case.
"The principal task of statutory interpretation for Professor Fuller is thus always a search for purpose. How the search is to be conducted and what relationship there is between the concepts of law and policy he does not discuss at any length, though he refers to a series of questions that could be asked, questions which are very reminiscent of the old common law principles of statutory interpretation as enunciated in Heydon's case: 'What can this rule be for? What evil does it seek to avert? What good is it intended to promote?' He does not consider the possibility of detecting plausible but divergent purposes. …
" In the first place legal rules differ enormously in their concreteness and particularity. We may talk about a rule that 'A will must have two witnesses' and again about a rule that 'Contributory negligence will defeat the claim of a plaintiff in a negligence suit.' But these rules clearly differ in their generality and in the amount of creative discretionary adjudication that must go into their application. And they may both be contrasted in these same respects with a principle like 'A contract may be illegal if it offends against public policy' or a maxim that 'He who comes to equity must come with clean hands.' No precise distinctions can be made between rules, principles and maxims, but the terms serve to mark differences of degree in the precision of guides to decision-making. Rules are fairly concrete guides for decision geared to narrow categories of behavior and prescribing narrow patterns of conduct. Principles are vaguer signals which alert us to general considerations that should be kept in mind in deciding disputes under rules. So we decide under rules but in the light of principles. A maxim is a principle that has been distilled in a traditional, aphoristic form. In marginal cases rules may be applied in the light of principles, but sometimes, when no concrete rule is present and relevant, a case must be decided by a direct application of principle or maxim to the facts without the interposition of a more concrete rule.
" The first step in any discussion of how issues of policy enter into decision-making should be an examination of how these issues are often very embedded in these different layers of material used in legal reasoning. When is a recourse to considerations of policy in applying a rule a reference to extra-legal materials and when is it, at least in part, a reference to a more central legal notion in the form of another rule or principle or maxim? Is there some criterion by which we must say that rules are law and principles or maxims are not law, if this, indeed, is what Professor Hart might be taken to imply? … (418-420)

" These [omitted] examples reveal that in the edifice of argumentation in which a legal problem is debated and in the structure of reasoning by which a judicial opinion supports a judgment, there is constant movement between different layers of material. Some of this material is concrete and particular, though still perhaps vague or ambiguous at its edges, as with our rule about the signature at the foot or end of the will. Some is much more general, supervisory and policy-charged, as with the notion that wherever possible the wishes of the testator should be effected. Some is formally legal in the strongest sense as with the interpretive directions in the Wills Act Amendment Act. Some is less formally stamped with authority but yet remains in an important sense doctrinal, as with the principle that generally respect should be accorded to precedent. Some has only faint marks of legal formality, as with the notion that hard cases make bad law. But we are dealing in every instance with the more or less concrete, the more or less formally legal. To attempt [as Hart does] to draw sharp lines between law and policy or between legal and non-legal material in this context sadly oversimplifies a complicated problem.
" But what if our experience with the particular judge in question affords us knowledge that he is in the habit of taking bribes? We have referred earlier to 'the stock of ideas which by observation we know influence judges in deciding cases.' How then can we discriminate between the impact on a judge of the interpretive directions in the Wills Act Amendment Act and, on the other hand, the influence of a bribe? It is important to stress that the analysis offered here does insist on the need for drawing a distinction between these two phenomena. Otherwise statements about the nature of law and inquiries into legal reasoning would, indeed, become matters only of what judges do and we would be back with the excesses of early American realism. What we are concerned with in our analysis of the decision-making process is the structure of argumentation, which is intimately connected with what judges do but is certainly not the same as what they do. The philosophical inquiry about legal reasoning is markedly different from a psychological investigation into which influences in fact determine decisions or even into which arguments are in fact most likely to be acceptable or convincing. The most obvious point to make in this connection is that the judge's taking a bribe is not an argument at all. It is an explanation for his judgment in the sense that the bribe is a motivation, but it is not a reason in the sense of a justification that could be openly stated in his opinion. It is not therefore an instance of legal reasoning: it does not find any place among those arguments that, by consensus of the participants in the system, are regarded as legitimate materials for building a structure of persuasion. … (425-426)

"One can agree with Professor Hart that it is less mysterious to speak of rules being interpreted in the light of purposes. But at this point it is necessary to insist that the purposes of which we speak are sometimes partly entwined in the rule itself, for policy notions may be more or less revealed and more or less embedded in prescriptive language, may be sometimes discoverable in other rules of the system and sometimes in principles, maxims and doctrines, so that purposes are often at least half manifest in legal material itself.
" The process of legal reasoning is thus one of deploying a wide range of acceptable arguments the scope of which blurs any answer to the question of what is and what is not law. If courts are generally very willing to listen to (though not necessarily to be convinced by) the argument that a certain interpretation of a statute would lead to a grave injustice, why should we not regard the argument from injustice as a legal one? Certainly it has a different status from the argument that the court should decide against the plaintiff because he is ugly. Does it, on the other hand, stand on any different footing from the argument that a court should adopt a certain interpretation because there are earlier authoritative decisions which hold that way? It would not suffice to say that the latter is a legal argument because courts must be persuaded by it while the argument from injustice is only one that they may listen to, for courts have frequently brushed aside precedent and declared openly that for reasons of justice they will create a new rule. Nor can we say that one argument is to be classified as legal and the other not because observation leads us to believe that the one is as a matter of fact more likely to succeed than the other. This is often not a determination that can be made and, in any case, the discussion is not about what arguments are in fact most likely to succeed but about which ones are acceptable in the sense that they will be listened to and that an obligation will usually be felt to rebut them if they are to be rejected. The idea of acceptable argument here is thus linked intimately with the ideas of audience and dialogue. In this way legal argument is very like moral argument and the everyday business of prudent decision-making in personal affairs. But in the legal context the audience is a specialized one with particular craft techniques and traditions which impose a more obvious hierarchy of cogency on arguments than is the case with everyday practical reasoning. Arguments about injustice, hardship and the like are quite acceptable in the legal sphere, but as legal arguments they may have to yield to the plain meaning of a statute or to the weight of a venerable precedent in cases where they would have carried the day in a moral argument. Where the meaning of a statute is not plain, or where precedent is not massed, such arguments are more likely to succeed. But the arguments used, listened to and sometimes accepted as persuasive in legal reasoning certainly embrace a wide field of arguments also employed in moral discussion and practical reasoning.
" The upshot is that the whole distinction between which rules can be identified as 'valid' and which cannot, to which the positivists attach so much importance, is of little help in an analysis of legal argument and decision-making. It is of little help because legal argument has to do with many concepts other than rules, and to say that a proposition cannot be formally identified as a valid rule of the system is therefore not to say anything about whether it is appropriate and usable in legal debate. Hart's stigmatizing of views which confuse what the law is and what the law ought to be is not in point here, for what is being asserted is that the character of legal reasoning in the decision-making process is such that, though indeed there may be a difference between what the law is and what the law ought to be, the law itself is a collection of interwoven prescriptive and purposive statements which we marshall and deploy in the adjudication of disputes and also in the tendering of advice. Does this involve revising our concept of a rule in a 'mysterious' fashion, which was the tendency that Professor Hart justifiably castigated in Professor Fuller's views? It certainly involves asserting that rules often combine with their prescriptive elements more or less incomplete purposive revelations which are used in conjunction with other material in the interpretation of the rule, but it is difficult to see what is mysterious about this or what generally accepted concept of a rule it is taken to be revising. … (430-431)

" In our investigation of the concept of law we are likewise interested in a rule system primarily because it has a significant effect on behavior and not merely because it is a collection of prescriptive sounding utterances. It is true that, as Professor Hart has pointed out, rule-governed or rule-oriented behavior has its own distinctive character in that it presupposes an ideology or attitude of acceptance, so that to understand it fully we must refer to phenomena more complex than statements of what people habitually do or predictions of what will probably be done. We must take account of attitudes and practices in referring to rules as standards for justification, for criticism and condemnation. But it is precisely this social phenomenon of acceptance and application that lifts a system of rules out of the printed page and makes it a system of law. …
"But the concept of a valid law does not appear to be at all the same as that of a good reason for a decision. Decisions by a court are not characteristically based on a reason but rather on an edifice of reasoning; they are not supported by separating valid from invalid rules (which would be so simple a task that disputes need never arise), but by arriving at an interpretation of materials generally acknowledged to be relevant in a fashion generally acknowledged to be acceptable. No judge was ever put in much of a quandary by the difficulty of deciding whether a statute emanates from his own jurisdiction or another. Certainly the identification of rules as belonging to the system is a subject worthy of philosophical analysis, but as a practical matter it occasiions no difficulty whatever and is scarcely worth the attention that has been paid to it by the analytical jurists. … (432-4)

" The tasks of law teaching are to impart sophistication in techniques of argument and reasoning. For this purpose, and for the elucidation of a legal system, we must add to the concepts of duty-imposing and power-conferring rules the notion of canons or standards of interpretation which serve more than one purpose.
" Sometimes, especially when contained in a statute, they function partly as a public justification of the enactment or as a declamatory statement of legislative policy. More often they are directives to officials, particularly judges, as to how they should work with the prescriptive rules of the system. When developed by the judges themselves in the form of principles, maxims and aphorisms they are a declaration of the shared understanding of craftsmen about how they should shape the materials on which they work. But, by their very nature, these interpretive directives are often capable of expression within the scope of a duty-imposing or power-creating rule, and for this reason it is not profitable to attempt to split them off and reserve the title 'law' for statements of pure prescription. Such an attempt would serve no useful purpose for, both by the criteria of formal validity and functional importance, such judgment standards meet the same tests as purely prescriptive statements.
" The concept of a rule is thus too narrow to explain the variety of material contained within a legal system. …
" For these reasons the American realist movement is in some ways a more fruitful and hopeful jurisprudential school than that of the modern analytical positivists. One careful reservation must be made on this comment. It is not meant as a denigration of the technique of sophisticated linguistic analysis, which is an invaluable weapon for attacking all problems of law and all questions of legal philosophy. The criticism is not directed at that technique but rather at the emphasis in such writers as Kelsen and Professor Hart on the centrality of the concepts of norm or rule. Such a monocular concentration has inevitably led to a lack of focus on the decision-making process. The American realists, although guilty of some crude analytical blunders, did perceive that the importance of the process of decision-making and also that the concept of a rule was of little help in its elucidation. The realist fallacy lay in the preoccupation with explaining the causes of decisions in a sociological or psychological context and in the inability to distinguish between motivation and argument. The need now is to return to a concentration on decision-making with an awareness of this distinction. (436-437) "

—From Graham Hughes, "Rules, Policy and Decision Making,"77 Yale Law Journal 411-439 (1968); [footnotes omitted].
 

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