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LAWS20101 JURISPRUDENCE 2020-21

DWORKIN AND LAW AS INTEGRITY

Course Director Iain Brassington [email protected]

LAWS20101 Jurisprudence 2020-21: Dworkin and Law as Integrity

IN THIS SECTION… We’ll be looking at another kind of challenge to positivism, which draws on a dissatisfaction with the way that Hartian thought understands law as it’s actually done: Dworkin’s account of “law as integrity”. In doing so, we’ll look at Some “hard cases” The difference between rules and principles Hercules Constructive interpretation of law The “correct answer” thesis

• • • • •

POSITIVISM… AND BEYOND ositivists insist that there is no necessary link between law and morality: that one can talk about the validity of law without making any moral claims of any sort. As we have seen from Fuller and Finnis, there are ways to dispute this. But both Fuller and Finnis come at the question with a strategy wholly different taken from positivist thinkers like Hart: whereas Hart (like Austin) was trying to give the best possible account of what law must be given how it is done, Fuller and Finnis start from more a priori principles, trying to build up from a theoretical claim about law and its purposes. Ronald Dworkin (1921-2013), who held the same Chair that Hart had held at Oxford, offers a rebuttal to Hart’s positivism, but it is notable for the way that his strategy is - at least in some senses - rather like Hart’s: he, too, is looking at law as it is done and trying to come up with an explanation of the observed phenomena. What this meant in practice is that what turned out to be a fundamental rejection of Hartianism had its roots is a much more friendly critique.

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Where does Dworkin stand on the postivism/ naturalism scale? He certainly does owe a lot to Hart, and there is a clear Hartian influence in his work; but - as we shall see - he thinks that there is a fundamental link between law and morality; and that is very un-Hartian. But would we want to say that he is a natural law theorist? That, I think, doesn’t quite work either, mainly because he resists the a priorism of people like Finnis and Fuller; and he actively distances himself from naturalism in the first chapter of Law’s Empire. That’s not conclusive - he might still be a naturalist, despite his protestations to the contrary - but it is a reason to think that he’s not. Perhaps we should satisfy ourselves with saying that he is non-positivist, or even anti-positivist, and not try to say what he is!

UNDERSTANDING LAW To understand how Dworkin departs from Hart, and how he understands the nature of law, we’ll begin by looking at how he accounts for what went on in a couple of real-life cases. This is a good way of beginning to understand Dworkin’s response to Hart, because both men’s strategy is to look at law as it stands and to try to derive claims about its nature from what they see. But, it turns out, the two are looking at different aspects of law; and what each sees (or thinks he sees) is rather different. The two cases that Dworkin considers that are of especial note for us are the American case of Riggs v Palmer1 , and the English case of McLoughlin v

1

115 N.Y. 506 [1889]

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O’Brian2, which he discusses in detail in Taking Rights Seriously (originally published in 1977), and Law’s Empire (originally published in 1986).3 These are archetypal “hard cases”. A hard case is one in which “a particular lawsuit cannot be brought under a clear rule of law”4; it is a case in which a judge invariably a judge in a higher court, where discussions about the meaning and intent of law is central - has to make a decision one way or the other, and in which neither side has a clear “right to win”. At least as far as positivism is concerned there might even be plausible doubt about what the law says in a hard case, or there may be a good reason to depart from one of its stipulations based on another stipulation elsewhere. Dworkin wants to pour cold water on this positivist account of hard cases: I want to make a general attack on positivism, and I shall use HLA Hart’s version as a target, when a particular target is needed. My strategy will be organized around the fact that when lawyers reason or dispute about legal rights and obligations, particularly those in hard cases when our problems seem most acute, they make use of standards that do not function as rules, but operate differently as principles, policies, and other sorts of standards. Positivism, I shall argue, is a model of and a system of rules, and its central notion of a single fundamental test for law forces us to miss the important roles of these standards that are not rules.5

2 [1982]

UKHL 3

3 see

Dworkin, R, Taking Rights Seriously (London: Bloomsbury, 2013), esp ch. 4; Law’s Empire (Oxford: Hart, 2006), esp ch. 1 4 Dworkin,

2013, p 105

5 Dworkin,

2013, p 38

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His claim is that it is hard to make sense of the decisions handed down in Riggs and in McLoughlin in straightforward positivist terms, and that this is evidence that positivism is mistaken. Riggs v Palmer concerned the execution of the will written by Francis Palmer, who had named his grandson Elmer as the primary beneficiary. Elmer had begun to suspect that Francis was considering a change in his will, and killed him in order to prevent any such change and so to secure the inheritance. Francis’s daughters, Mrs Riggs and Mrs Preston, sought to have the will annulled. In the dissenting opinion, Justice Gray pointed out that Francis’s will was valid, and there was nothing in the statutes to prevent Elmer inheriting under its terms. On a positivistic account, this would likely be the end of the story. However, the majority opinion, delivered by Justice Earl, held that there was an established Common Law norm according to which nobody should profit by his misdeed. Granted that this was never explicitly written down, Earl determined that [o]ur revisers and law-makers did not deem it important to incorporate into our statutes its provisions upon this subject. This is not a casus omissus. It was evidently supposed that the maxims of the common law were sufficient to regulate such a case and that a specific enactment for that purpose was not needed. 6

As such, the declaration was made that “the devise and bequest in the will to Elmer be declared ineffective to pass the title to him” 7; his estate was ordered to 6 Philo

Riggs, as Guardian ad litem et al., Appellants, v Elmer E. Palmer et al., Respondents 115 N.Y 506 [1889] at 513; modified 7 ibid,

at 514-5

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be distributed according to the remainder of his known desires and the established conventions. It is notable here that the decision was not that the claimants had the right to inherit despite the terms of the will: rather, it was held that the parts of the will naming Elmer as a beneficiary were to be treated as null.

You can access the Riggs v Palmer judgment via http:// www.courts.state.ny.us/reporter/archives/riggs_palmer.htm. Do you think it is the right decision? Is your answer a moral one, or a legal one, or both? _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ What’s going on in this case? It looks as though the decision may lack a clear explanation in positive law. As Justice Gray pointed out, the posited law was silent on the matter of annulling parts of a validly drawn-up will. And if the separation thesis holds, then the fact that this may strike us as morally anomalous is neither here nor there: that gives us a reason to lobby for a change in the statutes, but nothing more. So positivists would seem to have to make one of a number of claims to explain the decision.

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The first is that there really was some posited law in play; and since there’s nothing in positivism that says that statutes are the only way to posit law, that it’s not statutory would not be a problem. So long as officials such as the judges recognised a posited law under something like the Rule of Recognition, all would be well. For example, if there were a convention that could be shown to have been in play and contributed to a precedent from similar cases, that would fit the bill in a common-law system. But what would have been posited and recognised in this case? After all, Justice Gray said that there was nothing in the posited law to justify annulling the will, and even Justice Earl said that the part of the law that annulled it had not had to be posited. The second option would be to say that the rule according to which Elmer was disinherited was posited in the course of deciding the case. But that would seem to raise the possibility that the decision was ultra vires - or at least that judges are not simply adjudicators, but have a legislative role, too. Perhaps the judges, having identified a gap in the law, or an incoherence that had to be resolved, were fixing a hole; and in doing so they were creating new law. We might have qualms about a system in which judges can make law even as they apply it, but that would still be entirely compatible with positivism so long as the Rule of Recognition accommodates the idea of judge-made law. Still, in that case, we would want to know more about what they can and can’t legislate: granted that they cannot behave as Parliament does and set aside statute as they see fit, why would that be? Something similar seems to apply in respect of the other case mentioned above: McLoughlin v O’Brian. This case concerned a claim for damages made by a Mrs McLoughlin, who had heard that her husband and four children had been injured in a road accident, and who had arrived at the hospital to discover

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that her husband and sons were seriously injured, and that her daughter was dead. McLoughlin sued the driver who had caused the accident to recover damages for the nervous shock she suffered. Under English law as it stood, it did not look as though her case had any chance of success: there were precedent cases of people who had witnessed incidents and had been left in shock being able to recover, but what was important was that they had witnessed them. There was no precedent of recovery when the incident had not been witnessed. As such, McLoughlin seemed not to have any claim under the law as it stood. This is what the Court of Appeal held; however, that judgment was overturned by the House of Lords, and McLoughlin was allowed to recover. Once again, says Dworkin, we see a case in which the legal authorities appear to have gone against the rules posited by a recognised authority. Had either Riggs or McLoughlin been settled on moral rather than legal grounds, then the case - at least by Hartian lights - would have to have been either wrongly decided (since in this case they would have made a decision that ran contrary to the posited law on which they are supposed to adjudicate and that they are supposed to apply); or we would appear to have to concede that judges are not bound by posited rules, and so those posited rules are not centrally important for understanding the concept of law after all. Maybe we could, or even should, just bite the bullet and say that in hard cases, courts are not applying rules, but applying discretion. But if that’s true, why would it be limited to hard cases? And if it applies in all cases, then - really - have we got any law worth the name at all? It’s not clear that we have. It is

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tempting to think that these attempts to reconcile at least some hard cases with positivism are, and must be, unattractive.

Explain why cases like Riggs and McLoughlin might present problems for positivism. _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________

THE SEMANTIC STING Dworkin holds positivism to be a paradigm example of “semantic” theories of law. A semantic theory of law holds that there are certain specific criteria for deciding what “law” means, and what the law is; the question in a hard case is simply one of how to apply it. For example, in a debate about whether the rule forbidding vehicles from the park applies to mobility scooters, we may disagree about the applicability of the law in a particular case, but we will nevertheless agree about what the law is. The open texture argument advanced by Hart suggests that there will be cases in which the law is unclear; however, by intense debate, it ought to be able to clarify the proper criteria for the application of a law - through cutting away at the linguistic thicket, we can minimise uncertainty. By analogy, we can say that there is a settled “core”

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meaning of a word like “house”, and that there may be penumbral cases in which there is disagreement about whether it applies - is Buckingham Palace a house?8 - but that settling these disagreements is, when it comes to it, an arbitrary matter, and that law is a bit like that. We know the rules, and generally how to apply them; and when they don’t fit easily, we can either analyse our way to making them fit, or simply draw a line in the sand at some arbitrary point. (Why is Buckingham Palace not a house? Just because.) But, says Dworkin, this won’t wash - not least because it makes it look like fundamental cases are simply quibbles about words. And what’s important to note here is that the characterisation of legal disputes offered by semantic theories conflates two different sorts of dispute: borderline, and pivotal. Imagine two art critics arguing about whether photography (or, if you want to update things, computer game design) counts as art. Smith and Jones share a concept of what art is; they disagree only about whether photography (or game design) fits the criteria. But now imagine a slightly different version of the disagreement, in which it hinges not on whether photography (or game design) fits the agreed criteria for art, but in which those criteria themselves are in dispute. Most of the time, this would probably not make much of a difference: Smith and Jones would still be able to bicker about whether Rembrandt or Rothko is the better artist, and both can still agree that plumbing is not art. But sometimes, it really would matter. The first kind of dispute would have to do with borderlines. The second would be a pivotal dispute.9 Arguments in cases like McLoughlin are, Dworkin contends, pivotal; and semantic theories struggle to acknowledge that:

8 Dworkin, 9 ibid,

2006, pp 39ff

p 42

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Disagreements about legislation and precedent were fundamental; the arguments showed disagreement not only about whether Mrs McLoughlin should have her damages, but about how and why past judicial decisions change the law of the land. They disagreed about what makes a proposition of law true not just at the margin but in the core as well. Our sample cases were understood by those who argued about them in courtrooms and classrooms and law reviews as pivotal cases testing fundamental principles, not as borderline cases calling for some more or less arbitrary line to be drawn.10

This means that it is possible that when people are arguing about law in hard cases, they are actually making use of a whole different set of rules, and so “the project of the semantic theories, the project of digging out shared rules from a careful study of what lawyers say and do, would be doomed to fail”11. In a situation in which lawyers are considering not whether a rule is valid according to some criterion of validity, but what counts as a criterion for validity in the first place, that cannot be resolved by something like the Rule of Recognition. After all, it is, in a way, the Rule of Recognition that is in play here, and we can’t just say that it may be unclear at some points, becasue the social rule that is the Rule of Recognition is supposed to point us in the direction of primary rules. It’s of no help when what to recognise to begin with is contested. 12 It is tempting to deduce from this that when lawyers disagree about law, they are therefore talking past each other - as if in an argument about banks which one person is talking about river banks and the other about savings banks.13 But that would make law utterly trivial, and ignore the fact that it is a

10 11

ibid, pp 42-3; modified. ibid, p 43

12

see “The Model of Rules II” in Dworkin, 2013, for a related argument.

13

Dworkin, 2006, p 44

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real and flourishing thing that does things. This is the “semantic sting”: a semantic theory of law seems to commit us to the idea that deep disagreements about law are impossible. And yet everything we know about law in reality is that they are not. If hard cases reveal themselves to resist a straightforwardly positivist account, Dworkin reasons, then perhaps we ought to consider moving away from positivism. There is something called law, but semantic theories do not capture it. They are too naïve: we need to move from semantic theories like positivism to an interpretative theory. To help understand what he means here, we will begin by looking at the distinction he draws between rules and principles.

RULES AND PRINCIPLES Law, says Dworkin, has two components: it is comprised of rules and principles. Most cases require only that we apply rules, and the rules themselves are applicable in fairly straightforward ways. In a case such as Reeves v Northrop, which we considered in the section on Fuller, the question was one of whether the rule applied in such-and-such a case; but the rule itself was, once Ward J had clarified the terms, very straightforward. However, Dworkin thinks that though most cases may well be those in which rules are applied straightforwardly, it’s in the nature of a hard case that they can’t be. Yet such cases are still settled. And this is explai...