In Law’s Empire,Ronald Dworkin, LAW’S EMPIRE (1986). Hereinafter referred to as LE. Ronald Dworkin distinguishes two kinds of disagreement legal practitioners can have about law. Lawyers can agree on the criteria a rule must satisfy to be legally valid but disagree on whether it satisfies those criteria. For example, two lawyers might agree that a rule is valid if enacted by the state legislature but disagree on whether it was, in fact, enacted by the state legislature. Such disagreement is empirical in nature and poses no difficulties for positivism. There is, however, a second kind of disagreement that Dworkin believes is inconsistent with positivism. Lawyers can agree on the facts about a rule’s creation but disagree on whether those facts are sufficient to endow the rule with legal authority. This sort of disagreement is theoretical in nature as it concerns the grounds of law, which, according to positivism, are exhausted by the rule of recognition.

A central concern of theories of adjudication is the question of whether that form of decision-making is more a matter of existing entitlements or of prospective rules. Sometimes the question is stated in terms of “principle” versus “policy”: Must a judge decide on the basis of existing principles, or may she take into account the best policy for the future?See, e.g., Ronald Dworkin, LAW’S EMPIRE 27–29 (1986) (hereinafter Dworkin, LAW’S EMPIRE); Ronald Dworkin, Hard Cases, in Ronald Dworkin, TAKING RIGHTS SERIOUSLY 81, 82–84 (1978). Sometimes the question is put in terms of “individual rights” versus “the common good”: Must a judge render only the decision that best implements the existing rights of the parties, or may she consider what impact her decision will have on the good of the community as a whole?It is this dichotomy, I think, that Lon Fuller had in mind when he wrote that “whatever [courts] decide, or whatever is submitted to them for decision, tends to be converted into a claim of right or an accusation of fault or guilt.” Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 369 (1978).

It is common ground, as between legal positivists and their critics, that the criminal law ought to be codified in such a way that it can be relied on directly by citizens. I shall criticize this “guidance view” of the criminal law, through analyzing the ambitious attempt of Paul Robinson to devise a criminal code wholly shaped by that view. While there are reasons to favor a legislated criminal code over judge-made criminal law, there is no reason to think that such a code must be capable of guiding laypeople directly. Further, there may be reasons to accept limited judicial discretion to reinterpret the scope of the criminal law to meet unanticipated circumstances. Positivists’ preference (inspired by H.L.A Hart) for legislation coupled with limited judicial discretion is not, and should not, be supported by the (wrongly) supposed need to meet the requirements of the “guidance view.”

I. INTRODUCTION

The notion that the current descendants of slaves are owed compensation for slavery is one that receives widespread discussion and support. For example, in 1989, Representative John Conyers of Michigan proposed legislation that would create a commission to explore the effects of slavery on both African-Americans and the United States. More recently, Randall Robinson, in The Debt: What America Owes to Blacks, argued that an important step toward healing racial division and helping poor African-Americans is to compensate blacks for slavery.Randall Robinson, THE DEBT: WHAT AMERICA OWESTO BLACKS (2001). Also, a well-known group of civil-rights and class-action attorneys, including Harvard law professor Charles Ogletree and Johnnie Cochran, is putting together a lawsuit seeking reparations for the descendants of slaves.Reparations for Slavery, 1 (CBS News television broadcast, 2000), available from www.cbsnews. com/stories/2000/11/04/national/main246998.shtml. The debt on some estimates involves trillions of dollars.Larry Neal and James Marketti estimate that the value of unpaid income to slaves amounts to $1.4 trillion and $3.4 trillion respectively. Dinesh D’Souza, THE ENDOF RACISM 69 n.18 (1995) citing Richard F. America, ed., THE WEALTHOF RACES: THE PRESENT VALUEOF BENEFITSFROM PAST INJUSTICES (1990). In this paper, I argue that the descendants of slaves were not harmed by slavery since they owe their existence to slavery. I then recognize that they may have a claim to compensation based on their having inherited their ancestors’ (i.e., the slaves’) claim to compensation. I argue that the inheritance-based claim is defeated by a number of concerns, particularly doubt surrounding the existence and amount of this inheritance-based claim, concerns about offsets (sums that must be subtracted from compensation), and problems concerning the identity of any contemporary public or private entity that owes compensation. Note that in this essay I will not discuss harms that were not the result of enslavement and hence I set aside some of the claims put forth on behalf of current African-Americans.