Dworkin, Ronald. Hard Cases, 88 Harv. L. Rev. 1057 (1975)

Abstract

When considering cases involving the First Amendment, the Communications Commission Acts of 1934 or 1996, and Federal Communications Commission orders, one should begin by considering three overarching related questions: When interpreting cases, what do judges do, and what should they do?With respect to the First Amendment, how do or should judges determine the meaning of “speech,” “press,” “assemble,” or petition “for a redress of grievances”? What makes something a “law,” andwhenwould this something “abridge” these “freedoms”? To perhaps oversimplify, the philosophy of law has offered two main approaches to answering these questions. One, legal positivism, is that the law is a collection of factual statements about legality, much as chemistry is a collection of factual statements about atomic interactions. This includes identification of a process by which judges (and the public) recognize which statements about conduct are laws. One prominent such process is positive originalism — the import of “positive” to be explained — in which instructions about the content of the law can be found in what those who enacted the law believed to be what it specifically delineated. The other answer, at the extreme opposite, is legal realism. In this view, the law is what judges say it is. To invoke a familiar metaphor from baseball, legal positivism is the umpire saying, “I call ‘em as they is,” and legal realism is “I call ‘em as I see ‘em.” A modern variant on legal realism is critical legal studies, which places courts as part of the overarching set of power relations in society or, as the baseball metaphor concludes, with the umpire saying, “They ain’t nothin’ ‘til I call ‘em.” Volumes have been written on these two philosophies. Legal positivism strips law of its normative force, that breaking the law is not just imprudent but wrong. Using dated applications to delineate the law seems inadequate as societies become more complex. Legal realism