Thanks to a reader for emailing me a copy of the complaint filed by Professor Peltz against his former students for calling him a racist. The complaint does assert that the students made false statements of facts, although it doesn't specifically identify which statements of fact---other than the accusation of racism, which as I observed yesterday, is not really a factual claim so much as a normative/evaluative opinion---are supposedly false. The student letter complaining to the law school administration about Professor Peltz does contain at least one clearly false statement of fact. It describes The Onion as "conservative," whereas it pretty clearly is an equal-opportunity satire magazine. Would a conservative magazine print this piece? Or this one? Would an ape make a human doll that talks?
But I digress. Anyhoo, I'm currently attending/participating in a conference at the University of Pennsylvania Law School on the Rule of Recognition and the Constitution. The "Rule of Recognition" is a term coined by the late Oxford legal philosopher H.L.A. Hart. According to Hart, law consists in primary rules (like speed limits, murder prohibitions, civil obligations of contracts, etc.) that apply to citizens and other primary actors, and secondary rules (like rules saying when the police can arrest suspects, how a bill becomes a law, etc.) that apply to government officials. If we ask why some primary rule is part of the law, the answer will typically be some secondary rule. (E.g., SEC Rule 10b-5, governing insider trading, is the law because the SEC was authorized by a federal statute, the SEA, to create it.) We can then ask why that secondary rule is law and typically point to another secondary rule that stands behind it. (E.g., the SEA is a law because Article I, Section 8 of the Constitution authorizes federal regulation of interstate commerce.) And so on, until we come to a rule that has nothing standing behind it other than the fact that government officials observe a social practice of treating it as obligatory. This end-of -the-line rule (or set of rules or principles) is what Hart calls the "rule of recognition," and the aim of this conference is to explore the relation between the U.S. Constitution and the rule of recognition in the U.S.
Or at least that's what I thought when I wrote my paper (which I'll post in a month or so, after I fix the footnotes). But it turns out that much of the disagreement over how to understand Hart's theory and whether it makes sense concerns the question of what it means for a society to have law. Hart thought that wicked societies could have law but that the mere orders of thugs are not law, even if they demand compliance. Which brings me back to the Peltz case. If we can't even agree on what the concept of law entails, is it surprising that the meaning of "racist" would be highly contested? Or, is it only pointy-heads like myself and my equally pointy-headed chums who worry over the meaning of such concepts?
Posted by Mike Dorf