Dworkin - The Model of Rules 1 PDF

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The Model of Rules 1 Ronald Dworkin In a nutshell Dworkin begins by examining the important role and real implications that legal obligation and legal right have in a legal system but notes our fragile understanding of these concepts. A theory of law must account adequately for these. Dworkin sets out legal positivisms main tenets (test of validity; rules as exhaustive of law; legal obligation arising only from valid rules) and then sets out to attack this model. He does so by pointing out that there exist something other than rules that is used in legal reasoning i.e. principles which play an important role especially in deciding hard cases and which a theory of law must account for. Principles can be distinguished from rules in two important aspects. Firstly in the way they function: principles do not operate in an all-or-nothing manner, nor do they provide the conditions for their application and they do not stipulate consequences (cf. rules). Secondly, principles have the dimension of weight which rules do not possess. Dworkin then gives two competing accounts of law. Account#1: principles as law and thus binding (Dworkin view). Account#2: principles as extra-legal, not binding and chosen by judges’ unfettered discretion (Legal Positivists' view). In the latter the judge’s discretion is strong in the sense that she is not bound by any standards. Dworkin argues for Account#1 by stating that if principles were considered to be extra-legal and not binding (Acc#2) then very few, if any, rules would be binding as a judge would have unfettered discretion to overrule or alter even the most entrenched rules. Rather a binding rule can be seen to be one which is affirmatively supported by the collective weight of principles the judge cannot disregard. The Consequence of adopting Account#1 for LP model of law: Firstly the doctrine of discretion (strong unbounded sense) cannot be sustained. Secondly, the rule of recognition is not compatible with principles as a) validity from institutional enactment not cognisance with nature of principles b) Hart’s account of customs being sometimes valid before being recognized amounts to a concession. Furthermore if all the principles were taken together to be the Rule of Recognition then one would be unconditional surrendering and supporting Acc#1. Thirdly with regard to legal obligations: these under the LP model only exist where there is an established valid rule. But in hard cases there is no such and thus the judge is imposing new ‘legislation’ ex post facto and not an existing legal obligation. Whereas under account#1 a legal obligation may exist were principles are stronger for than against.

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Introduction Lawyers rely heavily on the connected concepts of legal right and legal obligation. However our conceptual understanding of these is fragile and underdeveloped. This is a source of continuing embarrassment as the use of these concepts has real implications. Everyday people are sent to jail, money is taken away and people are made to do or refrain from doing certain things. Therefore, we have a responsibility to find answers to the questions these concepts entail. Nominalists argue that these concepts are but myths, invented and sustained by lawyers for a multitude of reasons. They argue that the problems presented can be solved by ignoring them. They think the rest of us consider law to be a timeless set of rules and legal obligations to be invisible chains that drape around us. This is considered to be mechanical jurisprudence. However, neither scholar nor any lawyer espouses such a view. It is acknowledge that law is changing and evolving. A better understanding of the law is required. Dworkin wishes to examine the soundness of legal positivism focusing mainly on Hart.

Legal positivism: central tenets The skeleton of Legal Positivism: a)

Law is a set of special rules used for the purpose of determining which behaviour will be punished by the public power. “Valid” rules are identified by specific criteria concerned with their pedigree i.e. manner in which they were adopted/developed.

b) The set of valid legal rules “exhausts the law” such that when a hard case is presented to which no legal rule applies the judge must exercise his discretion and reach beyond the law to decide the case. c)

Legal obligations arise because a valid legal rule requires something to be done or refrained from doing. No valid rule, no legal obligation.

This is but a skeleton with proponents of positivism differing in certain regards, mainly with what the fundamental test of pedigree a rule must meet to be valid legal rule. Austin: legal rules are the general commands of the sovereign and an obligation arises when one is in danger of suffering a sanction for non-compliance. This is beautifully simple, too simple in fact. In a pluralistic society this theory does not hold. Nor does the gun-man writ large scenario adequately explain the true nature of law as we make a distinction between law and the general orders of a gunman. Law is something different. Hart: gives a more complex account of law. Primary rules: grant rights or impose obligations (substantive). Secondary rules: stipulate how, when and by whom primary rules are formed. Hart disagrees with Austin and states that a rule differs from an order as it is normative. It can never be binding simply because someone with physical power commands it. He must have authority given by another rule which is already binding on the citizens. For Hart a rule can be binding because a) it is accepted as a binding rule or b) it is enacted in conformity with some secondary rule which states that rules so enacted will be binding. Hart discusses primitive societies (pre-legal) and those societies which have developed a fundamental secondary rule which stipulates how legal rules are to be identified i.e. the Rule of Recognition.

Rules and Principles Dworkin having laid out the central tenets of legal positivism now seeks to attack it. The main thrust is that when lawyers reason about legal rights and legal obligations, especially in hard cases, they make use of standards that do not function as rules but operate differently as principles. Dworkin begins by distinguishing principles from rules using famous American cases. In Riggs v Palmer 1889 the court had to decide whether a person could inherit from the person which he murdered. The statues 2

literally construed made this possible but by applying fundamental maxims such as ‘no person shall profit from his wrong doing’, the court decided not. In Henningsen v Bloomfield Motors Inc the question was to what extent an automobile manufacturer could limit its liability. The plaintiff had signed a contract containing a clause limiting liability to repairs of defects, but was suing for medical costs incurred. The court discussed many standards such as ‘freedom of contract’ ‘caveat subscriptor’ ‘the special obligation under which manufacturers operate given the safety concerns’ ‘fair dealing with consumer and public interests’. Dworkin notes that these are not what one considers legal rules (e.g. do not exceed 60km/h in a residential area). Rules and principles can be logically distinguished in two main ways: 1.

Operation a. Rules act in an all-or-nothing manner. E.g. A will must be signed by two witnesses. A will signed by one witness will not be valid. Certain exceptions can apply which would operate in b.

the same manner. Principles do not set out legal consequences which will follow. E.g. “No man may profit from his own wrong” does not operate in such a way to never permit profiting from wrong-doing. Acquisitive prescription operates to award property to a trespasser. i. Nor do principles stipulate conditions in which their application is necessary.

2.

Weight a. Principles have the added dimension of weight. When principles intersect one resolve the conflict with regard to the relative weight of each. b. Rules do not have this dimension. If two rules conflict, one of them cannot be a valid rule.

Note that sometimes it is difficult to distinguish rules from principles. E.g. the freedom of expression. If it is a rule then any denigration will be unconstitutional, whereas if it is a principle then certain contexts may allow for its denigration.

Principles and the Concept of Law As shown in the famous cases and apparent in numerous others, principles play an important role in reaching particular decisions of law and any analysis of the concept of legal obligation must account for this. Two competing accounts of law: Account#1: Treats legal principles as we treat legal rules. Some principles are binding as law and must be taken into account. Here law consists of rules and principles. (Dworkin’s position) Account#2: In the alternative, we can deny that principles are part of the law and thus not binding. In this instance a judge reaches beyond those rules to which he is bound and is free to use extra-legal principles as he sees fit. (Legal Positivists position) The importance of the distinction is borne out by the following. Someone ‘makes it a rule’ to run 1 kilometre every morning. We do not think that person bound by such a ‘rule’. To accept a rule as binding is different from making it a rule to do something. Let’s consider judges. Judge A ‘makes it a rule’ not to enforce a will unless there are two witness. Judge B will not have done anything wrong if he does enforce a will only signed by one witness. Now consider that a rule of law requires judges not to enforce wills without two witnesses. In this scenario, Judge B would have done something wrong if he enforces a will with only one witness. Account#1: makes principles binding on judges. Here we are still able to argue that because judges are applying binding legal principles they are enforcing legal rights and obligations. 3

Account#2: treats principles as summaries of what most judges ‘make it a principle’ to do. Here we are out of court and in Riggs the murderous heir is deprived of inheritance by an act of judicial discretion applied ex post facto. There is a close connection between the second account and the doctrine of discretion espoused by legal positivism i.e. that when a judge is faced with a case not covered by a clear rule he must exercise his discretion in what amount to a fresh piece of legislation. Therefore it is necessary to examine this doctrine.

Discretion The concept of discretion only fits in one context: when someone is charged with making decisions subject to standards set by a particular authority i.e. the discretion of a sergeant who is subject to orders of his superiors. Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction. Therefore it is a relative concept. First weak sense of discretion: the standards to be applied cannot be done so mechanically but demand the use of judgment. I.e. the sergeant was ordered to pick his five most experienced men. This leaves him some discretion as a determination of experience is hard to make. Second weak sense of discretion: this concept is used when we mean that some official has final authority to make a decision which cannot be reviewed or reversed. Cf. Strong sense of discretion: this is used to mean, not simply that the official must exercise judgment or his decision will not be reviewed (weak senses) but rather that he is simply not bound by standards set by the authority in question. I.e. Sergeant is told to pick any five men for the patrol. This strong sense does not mean the decider is exempt from criticism. To say an official has ‘discretion’ in this sense does not that he is free to decide without recourse to standards of sense and fairness but only that his decision is not controlled by a standard given by the particular authority we have in mind when we raise the question of discretion. Having laid out the theory, Dworkin now turns to examine the positivist’s doctrine of discretion. LPist do not use ‘discretion’ in the first weak sense to mean only that judges must sometimes exercise judgment in applying legal standards. This provides no insight as it is merely tautological. Nor do they use the term in the second weak sense as judges have no discretion when the rule is clear and applicable. Therefore LPists must be using discretion in the strong sense which is in line with the Account#2 of law. That is to say that when a judge runs out of rules he has discretion in the sense that he is not bound by any standards from the authority of law i.e. that a judge is not bound by the principles he cites. We must ask do the principles cited not control their decisions. What arguments could an LPist present to say that they do not? 1.

“Principles cannot be binding or obligatory.” a.

This cannot be as there is nothing in the logical character of a principle that renders it incapable of being binding. If a judge where to cite freedom of contract and nothing more in the Henningsen case and thus find for the automobile manufacturer, most would have said that the judge had a duty to take measure of the other relevant principles. Therefore this fails.

2.

“Some principles are binding but cannot determine a particular result” a. This does not further the argument. If one means ‘determine’ as in dictate, then principles do not determine results as this would make them indistinguishable from rules. As previously shown, principles do not operate in this way. Principles incline a decision. Their weight taken 4

together point in one direction. (a judge may of course be wrong in his assessment of the principles just as he may be wrong in in his judgment that a rule is binding) 3.

“Principles cannot count as law because their authority and their weight are congenitally controversial” a. It is true that we cannot demonstrate these aspects as there is no litmus test for the soundness one way or the other, it is a matter of judgment over which reasonable men disagree. But more importantly argument #3 does not distinguish a judge from other officials who do not have discretion and thus is unhelpful.

4.

“If there is an ultimate test for binding law, e.g. Rule of Recognition, it follows that principles are not binding law” a. This is unhelpful as the incompatibility of principles with the LP theory begs the question. The interest in the status of principles is because we want to evaluate the LP model. If principles are incompatible the LPist must show some other reason why they should not count as law.

Dworkin’s argument for Account 1: law = rules + principles Dworkin’s counterargument against the LP doctrine of discretion and in favour of the first account of law is as follows: unless some principles are acknowledged as binding upon judges then no rules can be considered to be binding either. Rephrased: if no principles are binding then no or very few rules are binding. Judges reject and alter established rules. If judges had ‘discretion’ to change established rules then these rules would of course not be binding upon them and so would not be law on the positivists’ model. The positivist must therefore argue that there are standards themselves binding on judges that determine when a judge may overrule or alter an established rule and when he may not. Principles play a role in two ways. Firstly, it is necessary but not sufficient that the change would advance some principle. But not any principle will do to justify a change. Some principles must count while others do not and some count for more than others. This could not depend on the judge’s own preferences to choose any one extra-legal principle because if that were so then we could not say that any rules were binding as we could imagine a judge whose preference would justify a shift in even the most entrenched rule. Secondly, any judge contemplating altering existing doctrine must take into account important standards that argue against change. These standards are for the most part principles such as the doctrine of precedent and the doctrine of legislative supremacy (deference). Judges are not free to pick and choose amongst these – if they were no rule would be binding. A binding rule is one which is affirmatively supported by principles the court is not free to disregard and which are collectively lend more weight than the principles that argue for change. This treats principles as binding upon officials, controlling their decisions of legal right and obligation. Given that the positivist’s theory of judicial discretion is either trivial because it uses discretion in the weak sense or unsupported by various arguments proffered in its defence, why is it embraced by so many intelligent lawyers? One reason is our tendency to view law as a system of rules, self-contained which leads one naturally to the assumption that judges have discretion in the strong sense. A more subtle consequence of this assumption of law as a system of rules is that positivists tend to treat principles as something that is trying to be a rule and which must come from ‘higher law’ theory. A positivist refutes this theory by pointing out that these ‘rules’ are not always followed, for every one ‘rule’ (no profiting from own wrong) there is a competing ‘rule’ (security of title) and there is no way of testing the validity of these ‘rules’. Such a positivist would 5

conclude that these cannot be rules but must be extra-legal principles which the judge selects according to preference. This is as absurd as a zoologist who proves that fish are not mammals and then concludes that they are really plants.

Rule of Recognition What would the consequences be to the positivist model if we adopted account #1: principles are a part of law? The second tenet of judicial discretion being outside of the law would have to be dropped. What of the first (law is distinguished by the rule of recognition)? Dworkin begins by examining Hart’s account of identifying valid rules of law to see if these can work for principles as well. Most rules are valid because some competent institution enacted them or were created in precedents. This will not work for principles as their origin does not lie in legal institutions but rather in a sense of appropriateness that has developed over time. It is true in arguing for a principle we would look for institutional support but it would not be possible to derive some formula to determine how much support makes a principle, a legal principle. How principles operate is as follows: “We argue for a particular principle by grappling with a whole set of shifting, developing and interacting standards about institutional responsibility, statutory interpretation, persuasive force of precedents, the relation of all these to contemporary moral practices and a host of other standards.” These cannot be fixed together to make a Rule of Recognition as this is a fairly stable concept specifying which criteria to use to determine the validity of a rule as law. Furthermore, Hart’s Rule of Recognition stands on a different level from the rules it evaluates. It is accepted and determines the validity of rules. This distinction does not apply to principles. Principles do not exist on different plans and cannot be spoken of as being ‘valid’ as this is an all-or-nothing concept appropriate for rules but not principles. It is true though that when arguing for a principle we would cite other general principles that support a certain practice and this would introduce ‘a note of validity into the chord of acceptance.’ In this way principles should be seen to hang together rather than be linked together. So even though principles draw support from legal institutions there is no simple or direct connection to frame them in terms of criteria specified by the Rule of Recognition. Could custom be used to establish this connection? Austin held that customary practices were not law until the courts had recognized them. Hart reversed this point by stating that the Rule of Recognition might stipulate that some custom counts as law even before being recognized by a...