Papers by Sari Kisilevsky
Jerusalem Review of Legal Studies, 2018
I propose a positivist solution to Dworkin’s problem of hard cases, as exemplified by Riggs v. Pa... more I propose a positivist solution to Dworkin’s problem of hard cases, as exemplified by Riggs v. Palmer. Hard cases are cases in which the posited law points to a clear outcome, but the question of what the law requires remains open. Parties to the positivism/natural law debate take these to illustrate the possibility of legally binding moral considerations. I argue that, despite appearance, hard cases like Riggs do not raise the problem of morality in law at all. Rather, the majority’s judgment in Riggs can be explained by appeal to law’s systemic nature, as consisting in an organized system of primary and secondary rules that govern the actions of independent actors. Dworkin is right to hold that the basic structure of the posited law makes it vulnerable to hard cases. However, I argue, those very features that make it vulnerable to such cases also give the posited law the resources to resolve them. No further appeal to morality is necessary.
I argue that the US government’s justification for trying foreign enemy combatants in military co... more I argue that the US government’s justification for trying foreign enemy combatants in military commissions rather than federal courts on the grounds that it must “balance people’s liberty and security” is illegitimate. I distinguish between three senses of “balance,” and argue that the policy is ambiguous between the second (internal, ordinary) and third (emergency, external) senses of balance. Neither line of reasoning justifies the policy, however. On the second, institutional sense of balancing, it is unjustified because it constitutes an arbitrary limitation of the rights of some for the sake of the security of others. It thus violates the government’s duty to decide such “internal” questions of balance in accordance with accepted legal procedures. Alternately, if the policy is intended to be an exercise of emergency powers, resting on the third, external sense of balance, then it violates what I call the government’s juridical duty to serve as a guardian of justice. This duty requires that it uphold people’s legal rights systematically, in a way that vindicates, rather than denies, their equal moral standing under the law.
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Papers by Sari Kisilevsky