Eligibility Age Another suggested reform for Medicare is the raise the age at which American become eligible for Medicare. Individuals and groups that support a rise in the eligibility age propose that raising the age to sixty-seven will result in huge savings (Waidmann 1998)
(Hart also specifically mentioned the work of the Scandinavian legal realist Alf Ross, who (according to Hart) "claimed that the only method of representation of the law fit to figure in a modern rational science of law was one which shared the structure and logic of statements of empirical science." Hart's argument is that whatever advantage a "scientific" approach might have, it simply is not adequate for a full understanding of law (Austin, 1955-page 2)
(Hart also specifically mentioned the work of the Scandinavian legal realist Alf Ross, who (according to Hart) "claimed that the only method of representation of the law fit to figure in a modern rational science of law was one which shared the structure and logic of statements of empirical science." Hart's argument is that whatever advantage a "scientific" approach might have, it simply is not adequate for a full understanding of law (Austin, 1955-page 2)
There are two related problems to consider: (1) How must social theories be different from theories in other areas? (2) To what extent can a social theory be "scientific"? One factor which must be considered prominently in constructing a theory of law, which would not be relevant to the construction of theories about atomic composition, chemical interaction, photosynthesis and the like, is that law is a human creation to serve human purposes and it is an institution that requires human participation. Because of these aspects, understanding any social process, including law, will be different in kind from understanding processes which are purely physical, chemical or biological (Baird, 1994-page 134)
One can only understand normative; rule- following; behaviour if one leaves one's spectator's perspective and tries to understand the perceptions of the participants in the system (that is, the perceptions of the people who are following the rules, and who perceive themselves as doing so) (Epstein, 1973-page 5). In Hart's terms, to understand "any form of normative social structure," "the methodology of the empirical sciences is useless; what is needed is a 'hermeneutic' method which involves portraying rule- governed behaviour as it appears to its participants" (Baker, 1977-page 1)
After all, most social practices have a large number of participants, all of whom do not share the same view of, or attitude towards, the practice (Hart, 1983-page 11). One prominent legal theorist, John Finnis argues that the perspective chosen should be that of a (hypothetical) practically reasonable person, who applies appropriate moral reasoning to conclude (if true) that the legal system creates binding (prima facie) moral obligations (Balkin, 1994-page 76)
. rules out an account which shows them up as wrong, confused or deluded" (Ball, 1990-page 72)
An additional complication, one whose implications are hard to tease out, is that in the social sciences one must consider the role of an internal point-of-view, both in the evaluation of data gathered and in the actual gathering of that data nor to evaluating it. This additional point is unclear in its implications because it ties into the debate on what it would mean to "gather evidence" (Cohen, 1984-page 18) for a general theory of law (and what kind of evidence one would want)
The differences between the two theorists are not so much contrary views on particular issues, but both more and less than that: differing ideas about which questions and which concerns in legal theory are most pressing (Tushnet, 1983). This is not to say that there are not some overlapping issues about which one could accurately state that the theorists have contrary positions, only that to focus on these direct disagreements would tend to underestimate the extent to which the theorists are actually talking past one another (Dworkin, 1977-page 11)
The differences between the two theorists are not so much contrary views on particular issues, but both more and less than that: differing ideas about which questions and which concerns in legal theory are most pressing (Tushnet, 1983). This is not to say that there are not some overlapping issues about which one could accurately state that the theorists have contrary positions, only that to focus on these direct disagreements would tend to underestimate the extent to which the theorists are actually talking past one another (Dworkin, 1977-page 11)
The differences between the two theorists are not so much contrary views on particular issues, but both more and less than that: differing ideas about which questions and which concerns in legal theory are most pressing (Tushnet, 1983). This is not to say that there are not some overlapping issues about which one could accurately state that the theorists have contrary positions, only that to focus on these direct disagreements would tend to underestimate the extent to which the theorists are actually talking past one another (Dworkin, 1977-page 11)
This is the context for understanding Hart's concept of the internal aspect of rules. The idea is that one cannot understand a social system unless one understands how the people who created the system or who participate in the system perceive it (Eekelaar, 1973-page 22)
" Hart's argument is that whatever advantage a "scientific" approach might have, it simply is not adequate for a full understanding of law (Austin, 1955-page 2). One can only understand normative; rule- following; behaviour if one leaves one's spectator's perspective and tries to understand the perceptions of the participants in the system (that is, the perceptions of the people who are following the rules, and who perceive themselves as doing so) (Epstein, 1973-page 5)
As noted, Hart emphasised the difference between rules and habits, a difference that resided primarily in the participants' perceptions of what they were doing, and in their reactions to and attitudes towards the actions about them. When an action was done "as a rule," rather than "as a habit," the rule is given as a justification for the action, and the rule is also the basis for any criticisms (including self-criticism) for any divergence from the prescribed actions (Eskridge, 1994-page 45)
The "scientific" approach to legal theory might be exemplified in various theorists' writings: for example, Christopher Columbus Langdell's view of legal theory as the search for the system of basic principles within the law, and the American legal realists (to some extent reacting against Langdell's view) emphasising what judges "actually do" as contrasted with what they are saying that they are doing (MacCormick, 1978-page 93). (Hart also specifically mentioned the work of the Scandinavian legal realist Alf Ross, who (according to Hart) "claimed that the only method of representation of the law fit to figure in a modern rational science of law was one which shared the structure and logic of statements of empirical science
Both of these perspectives are, from Hart's perspective, too extreme: he wants a legal theory which would be free from moral evaluations or moral commitments (unlike Finnis' approach), while remaining a descriptive theory of the practice rather than a participation in it (unlike Dworkin's approach). Hart was trying to keep a difficult middle position (Hacker, 1977-page 31)
Both of these perspectives are, from Hart's perspective, too extreme: he wants a legal theory which would be free from moral evaluations or moral commitments (unlike Finnis' approach), while remaining a descriptive theory of the practice rather than a participation in it (unlike Dworkin's approach). Hart was trying to keep a difficult middle position (Hacker, 1977-page 31)
This "hermeneutic" approach; that is, giving priority to trying to understand how other people perceive their situation; is always in tension with those who want social theory to be more scientific. The "scientific" approach to social theory would rely only on data that were "objective," data on which different observers would always agree (Mackie, 1977-page 10)
The "scientific" approach to social theory would rely only on data that were "objective," data on which different observers would always agree (Mackie, 1977-page 10). The "scientific" approach to legal theory might be exemplified in various theorists' writings: for example, Christopher Columbus Langdell's view of legal theory as the search for the system of basic principles within the law, and the American legal realists (to some extent reacting against Langdell's view) emphasising what judges "actually do" as contrasted with what they are saying that they are doing (MacCormick, 1978-page 93)
He argued that a legal theory should be constructed around the perspective of someone who accepted the legal system, but the theory itself (or, to put the matter differently, the theorist herself) need not, and should not, endorse the system (as one which is generally just or which creates binding moral obligations). In other words, the theory simultaneously: (1) attempts to take into account the participant's perspective; and (2) manages to choose among possible participants' perspectives without having to make moral judgments; while (3) keeping sufficient distance from the participants' perspective to allow for moral criticism of the whole system / enterprise (Perry, 1995-page 52)