Can Corporations Be Religious? Critical Review of Burwell vs Hobby Lobby et al; Part 2


Check out Part 1 to see where the concurring opinion’s views were left off

On the use of principles in making a judgement, legal positivism would hold that such a method is weak, as principles do not determine particular results and are indeterminate (Hart 127-28). As such, Hobby Lobby should be provided religious freedom on the bounds that the principles cited by the concurring opinion are intangible weights of evaluation, whereas only the rules governing those particular cases of precedence are relevant. Hence, the dissenting opinion cites the Dictionary Act definition of ‘person’ as one that includes only specific corporations such as nonprofit organizations and profiting individuals, to establish that a comprehensive interpretation of ‘person’ has already been taken into account as part of the rule (SCOTUS 73).

This rule, and the definition of ‘person’, would explain why the aforementioned organization or individual was given free-exercise claims, and in a positivist setting the interpretivist’s claims to principles as tools of judgement are ill-founded. Principles, as found in the precedence provided by the concurring opinion, do not determine particular results as rules do, because they do not change, while rules are changed or removed when a case reveals a contradiction within the set of rules (Hart 129). According to the legal positivism, if principles do not change, then the power conferred to judges, as Hart’s secondary rules, is not as discretionarily free as it should be, and if principles do change, then they are more like rules, and thus specific rules have more weight in the domain that they exert power over than general rules, or malleable principles, do.

Analogously, in weighing the rules and principles brought forth by the concurring opinion, the positivist would claim that the established rules of the statute regarding the definition of ‘person’ outweigh the principles asserted by the precedence of the cases aforementioned, in regards to nonprofit organization and profiting individuals, or by the motivations of Congress in establishing the RFRA. This is so because the free-exercise of religion does not extend to bodies not already specified in the RFRA, and principles have no tangible effect on rules and thus should have no effect on the judgement of this case, since, as Hart says, “to say that a given rule is valid is to recognize it . . . as a rule of the system” (133).

In light of the positivist justifications of the dissenting opinion, legal interpretivism provides adequate rebuttal to the counter arguments proposed in regards to the perception of principles being unable to determine particular results and the notion that principles and law are mutually exclusive, as the weight and authority of principles are perceived to be intangible. In confronting the first argument, it is important to note that principles sway decisions one way or another, “though not conclusively”, and remain even if an official judges in a direction opposite to which the principle pointed (Dworkin 162-63). Thus, judges who use principles to determine a particular case have discretion, but only in a ‘weak’ sense since they are subject to these principles, where a ‘strong’ sense, as defined by Dworkin, would be one with absolute jurisdiction, while in reality judges makes decisions based on the relative weights of rules and principles (163). Therefore, the absolute sense in judgement of the positivist argument does not hold, as principles are frequently used to determine cases for which particular rules are ambiguous or incomprehensive. In establishing that the weight of principles is a valid legal tool, we can examine the method of legal interpretivism within the concurring opinion. When evaluating precedence, we determine whether the similarity of those previous cases is enough to merit a verdict upon our case with similar motivations (166).

Given that legislation is written in light of societal practices and legal understandings, so too are principles of these practices and understandings applied to determine further legislation. We make cases based on these principles, weighing them by the relevance of the precedent case to the current one at hand, because legislation itself is built on a social construction of norms (156). Appealing to principles actively appeals to previous rules that were subsequently established in regards to societal principles and norms, and thus the positivist claim that particular rules outweigh general principles is invalid, and is ignorant of the symbiosm between the two. Hence, the concurring opinion is correct to use the interpretivist method in their evaluation of precedence and principles when examining the case. Rules are drawn directly as a result of general principles, and therefore general principles can be pulled back out of rules, and this is how the concurring opinion proceeds. And so, given that Hobby Lobby is a ‘closely-held’ corporation, and whereas the statute specified nonprofit organizations and profiting individuals as ‘persons’ in order to establish a principle that extended to the religious protection of ‘closely-held’ corporations, it is true that the majority and concurring opinions were justified in favouring with Hobby Lobby.


Works Cited

Hart, Herbert. “From “The Foundations of a Legal System”.” Readings in the Philosophy of Law. Ed. Keith Charles Culver. 2nd ed. Peterborough, Ontario: Broadview, 2017. 131-41. Print.

Dworkin, Ronald. “Integrity in Law”, Law’s Empire.” Readings in the Philosophy of Law. Ed. Keith Charles Culver. 2nd ed. Peterborough, Ontario: Broadview, 2017. 169-83. Print.

Dworkin, Ronald. “The Model of Rules I”, from Taking Rights Seriously.” Readings in the Philosophy of Law. Ed. Keith Charles Culver. 2nd ed. Peterborough, Ontario: Broadview, 2017. 148-69. Print.

SCOTUS. “SUPREME COURT OF THE UNITED STATES.” Journal (American Water Works Association) 29.5 (1937): 699-713. Supreme Court of the United States. Oct. 2013. Web. June 2017.