Essay \"Perspectives of law: legal positivism theory and dworkin\'s theory\" PDF

Preview

Summary

PERSPECTIVES OF LAW: LEGAL POSITIVISM THEORY AND
DWORKIN’S THEORY...

Description

PERSPECTIVES OF LAW: LEGAL POSITIVISM THEORY AND DWORKIN’S THEORY

I INTRODUCTION

A major legal theorist in the jurisprudential field of ‘legal positivism’, HLA Hart’s construction of law is founded as a ‘social phenomenon’, in which it is considered ‘to be understood and explained’ only by way of ‘reference to the actual social practices of a community.’1 Hart’s conception of natural law, characterised as ‘modern legal positivism’, explains that there must be a recognition of the significance of the existence of certain ‘rules’ to govern the community, which is argued to be a result of the ‘human condition.’2

In contrast, Professor Dworkin’s account of law is ‘underpinned’ from being ‘effectively integrated with morality: lawyers and judges are working political philosophers of a democratic state.’ According to Dworkin, it is inferred that we should ascertain from ‘judges’ the concept of what law is.3

Additionally, his ‘rights theory’ argues the prevalence of rights above that of ‘general welfare,’ which has been a greatly criticised theory.4 It is not a contested fact that Dworkin has maintained great opposition towards Hart’s endorsement of the legal positivism theory, in which he promotes criticisms of the legal positivism theories, on 1 Raymond Wacks, Understanding Jurisprudence (Oxford University Press, 4th ed, 2015), 93. 2 Ibid. 3 Ronald Dworkin, Justice for Hedgehogs (Harvard University Press, 2011), 414. 4 Paul Youwell, ‘A critical examination of Dworkin’s Theory of Rights’ (2007) 52 American Journal of Jurisprudence 93. 1

the basis of their inability to proffer any explanation of ‘law-making or a sufficiently strong defence of individual rights.’5

This essay will attempt to provide a general scope of Dworkins theory of law, and demonstrate the legitimacy (or illegitimacy thereof) of both Dworkin’s and Hart’s theory as an acceptable proposition of law, and a consideration of the theory that is most compelling in defining law. Furthermore, there will be some discussion of Dworkin’s rights theory, and its conformity to the ideals of ‘liberalism.’

II DWORKIN’S THEORY OF LAW

For Dworkin, his conception of law was based upon the ‘moral integrity of law’, which had lent itself towards its incorporation and support of not only ‘individual rights’, but also the ‘judicial function.’6 The scope of his composition of what law is comprised of, as will evidently be seen, draws upon but is not limited to a wide and broad spectrum of areas.

A Principles And Policies

Firstly, Dworkin argues that law is not only limited to ‘rules’, but also extends to include ‘procedures’ and ‘policies.’7 He explains that ‘rules are applicable in an all-ornothing fashion,’8 whereby, a rule being valid and is considered to be applicable to a

5 Wacks, above, n 1, 138. 6 Ibid, 135. 7 John Mackie, ‘The Third Theory of Law’ (1977) 7 Philosophy and Public Affairs 3, 4. 8 Ibid. 2

particular case, then a decision must be made in accordance with the rule.9 However, principles, as opposed to rules, are argued to have an ‘extra dimension of weight.’10 He argues that a principle is not as clear-cut as a rule, in the sense that reasons can be provided for determining the outcome of the case in applying a particular principle, and the decision also weighed against other principles in the ‘system.’11

Furthermore, Dworkin claims that a principle should be upheld as ‘it is a requirement of justice or fairness or some other dimension of morality,’ rather than being based upon the advancement of ‘economic’ or ‘political’ situations.12 His theory of ‘policies’ is argued to be ‘that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community.’13 However, he does not accept any single ‘ultimate’ test for law.14

B Hercules and the Hard Cases

As previously stated, Dworkin does not accept any single test for law, and more specifically, given his opposition towards Hart’s theory of positivism, he does not accept his ‘rule of recognition.’15 However, in place of the ‘rule of recognition’, he offers an insight of the occurrences in what he considers a ‘hard case,’ with decisions considered by a fictitious judge named Hercules.16

9 Wacks, above n 1, 138. 10 Ronald Dworkin, Taking Rights Seriously, (London: Duckworth, 1978), 22-8. 11 Ibid, 22. 12 Ibid. 13 Ibid. 14 Mackie, above n 7, 4. 15 Ibid. 16 Wacks, above n 1, 140. 3

A ‘hard case’ is considered by Dworkin to be one where no rules could be applied, and therefore Hercules J, who is considered to possess ‘superhuman skill, learning, patience and acumen,’17 would be required to ‘deploy standards other than rules.’18 In his judgments, Hercules J would be required ‘to construct a scheme of abstract and concrete principles that provides a coherent justification for all common law precedents and, so far as these are to be justified on principle, constitutional and statutory principles as well.’19

In applying these principles, Dworkin claims that Hercules J will be able to seek ‘consistency’ and ‘integrity’, in order to decide upon the legal issues that are set before him in the so-called ‘hard case.’20

C Right answer thesis

Another conception of law that Dworkin suggests, is the ‘Right answer thesis’, where it assumes that for every legal issue, there can be only one ‘right answer’ discovered in principles, with Hercules J adjudicating with ‘integrity and consistency,’ in which he will inevitably find an answer, which will inevitably be the only right answer.21

This is a more controversial proposition of law, as the notions that it proffers, seem inherently difficult to perceive that there will be a single correct answer for every issue that arises. 17 Dworkin, above n 10, 105. 18 Wacks, above n 1, 140. 19 Dworkin, above n 10, 116-7. 20 Scott Hershowitz, Exploring Law’s Empire: The jurisprudence of Ronald Dworkin (Oxford University Press, 2006) 219-24. 21 Wacks, above n 1, 142. 4

Dworkin adds that where there are any disagreements between lawyers, it will be focused on the basis of what the right answer is, and will therefore lead to the only right answer as they see fit to represent the law.22

D Equality

Dworkin also includes the notion of equality in his theory of law, which is deemed to involve the intervention of the state, and also the redistribution of wealth and resources. Equality is considered to consist of two main views: the ‘equality of welfare’ and the ‘equality of resources.’23

His ‘conception’ of equality of resources, is based upon the concept of a primary market of resources, which is exhibited through a ‘Walrasian auction.’ This auction presupposes that the supply and demand of certain goods will always be equal, with the prices set to exactly match each anticipated bid.24

This concept of equality, based on the idea of ‘equality of resources’ may operate efficiently in an ‘idealistic’ world, but concurrently, it cannot always be possible to achieve exactly the necessary level of supply to match demand, and at the price expected by a customer. If this were the case then prices would remain the low all the time, as customer’s would only want to pay the lowest cost possible, however, this is not so.

III DWORKIN VS HART 22 Ronald Dworkin, A matter of principles (Harvard University Press, 1985), 119. 23 Wacks, above n 1, 151. 24 Ibid. 5

E Criticisms of the Legal Positivism Theory

Dworkin has strongly refuted the separation of morals and law, which is a concept strongly upheld by positive legal theorists such as HLA Hart, who’s conception of law is based upon four main points: 1. Law is a network of conventional social rules, which regulates the conduct of individuals and ‘legal officials;’ 2. The existence of the ‘Rule of Recognition,’ which identifies all valid rules of law according to social facts about individuals, and without reference to any moral criteria but to their pedigree; 3. Law and morals are therefore considered separate, as law does not rest on any moral requirement in order to be considered valid; 4. There is discretion for judges to exercise moral criteria, when a case cannot be decided on existing rules.25

It would be possible to ascertain that from the above points regarding ‘Legal Positivism,’ there is no agreement between the theories as prescribed by Dworkin, and those prescribed by the Legal Positivism Theory, as they contrast each other on all points.26

Firstly, as previously illustrated, the notion of law as a network of conventional social rules contradicts with Dworkins claim that law goes further than rules.27 He considers

25 Stephen W. Ball, ‘The relevance of Ethical Theory in Philosophy of Law’, (1990) 3 Ratio Juris 340, 342. 26 Ibid. 27 Ibid. 6

the issue in the case of Riggs v Palmer, where it was questioned ‘whether a murderer could inherent under the will of his victim.’ 28

Although there were no exceptions under the rules, and the murderer had a right to claim under the will, it was held that the principle ‘no man should profit from his own wrong,’ applied in this scenario. It is on this basis that Dworkin argues that law ventures beyond rules, and extends to include principles.29

This notion of law comprised of ‘principles’ is a valid one, however, it is not necessarily applicable to most circumstances where the application of rules will adequately deal with the issues in each case.

It could be argued that as a result of ‘principles’ not forming an integral part of law, but rather is only supplementary in nature to rules where it only applies in instances where rules cannot be applied, then it cannot described as law as, argued by Dworkin.

Another theory highly disputed by Dworkin, is Hart’s second point of legal positivisms ‘Rule of Recognition.’ Hart claimed that ‘fundamental rules of legal systems solve the various defects of pre-legal customary societies.’30

This is a primary basis of the ‘Rule of Recognition’, which can be further developed by Sharpiro’s analysis of the concept that ‘[l]egal systems address the problem of uncertainty by providing a rule about which rules are binding.’31 28 1115 NY 506, 22 NE 188 (1889). 29 Wacks, above n 1, 140. 30 Scott Shapiro, What is the rule of existence (And does it exist?) (Research Paper, Yale University – School of Law, 2008) 3. 31 Ibid, 3. 7

The theory can be quintessentially defined as a ‘rule about rules,’ and is considered to be an essential element of the legal system, which also attempts regulate those who ‘exercise public power […] to follow certain rules.’32

Dworkin has highly refuted this aspect of Harts theory, as the requirement of recognition of the rule, ‘derives’ from the basis of its ‘pedigree’, and would not be applicable to his theory of law as ‘principles.’33 This is argued to ‘only apply to enacted law and [does] not apply to [‘principles’] which typically are not enacted law.’34

Dworkin also proposes an alternative concept, which he considers to have greater ‘force’ than that of the ‘rule of recognition.’ That ‘force’ is credited as his concept of the ‘force of morality.’ The force is not any physical force that is exerted from an ‘omnipotent social being,’ but rather, one that is ‘good or just.’35

His argument, which could be considered ‘superficial’ at best, is based on the premise that justice carries the ‘weight of significance’, which he argues to weigh much heavier than the ‘rule of recognition’, and therefore has a greater force.36 This conclusion is reached because, as previously alluded to, it is a ‘requirement of justice or fairness’, that ‘principles’ which he deems as standards, must be observed.37 32 Wacks, above n 1, 96. 33 Genaro Carrio, ‘Professor Dworkin’s Views on legal Positivism’ (1979) 55 Indiana Law Journal 230. 34 Ibid. 35 Keith Doubt, ‘Dworkin’s Moral Hermeneutics and Sociological Theory’ (1998) 35 The Social Science Journal 342. 36 Dworkin, above n 10, 22. 37Ibid. 8

Additionally, the notion of legal positivism’s theory which presupposes that law and morality are two distinct concepts and operate separately, is a anther theory highly disputed by Dworkin.38 He argues that ‘[l]aw is effectively integrated with morality: lawyers and judges are working political philosophers of a democratic state.’

Considering this, Hart has made considerable redactions in his formulation of the disparity of morality and law. He has amended his views, to be more consistent with the views held by Dworkin. Hart has stated that ‘the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values.’39

It is affirmed here by legal positivists that morality and law can be considered to be inextricably linked together. This declaration provides substantial support for Dworkin, and could be argued to legitimise his rejection and criticisms of legal positivism theories.

It can be evinced from the above discussion, that there are strong points that Dworkin offers for invalidating the legal positivism theory as proposed by Hart, and thereby legitimising his own propositions for conceptualising law.

F Criticisms of Dworkins theory

As with Hart, there have also been great criticisms of Dworkin’s theory of law. Such criticism’s he has received from Shapiro, who argued that Dworkin’s notion of law is 38 Mackie, above n 7, 4. 39 HLA Hart, The Concept of Law (Clarendon Press, 2nd ed, 1994) 250. 9

redundant, on the basis that ‘[h]aving to answer a series of moral questions is precisely the disease that the law aims to cure. Dworkinian legal interpretation thus ends up reinfecting the patient after the contagion has been neuterali[s]ed.’40

In contemplating this evaluation, it is necessary to consider that it would only be regarded as true, if one’s conception of law is based upon the separation and autonomy of morality and law. However, as already conceded by Hart, law does involve the amalgamation morality which would be considered an integral part of law, and thereby making this statement inaccurate.41

A lead theorist has attempted to debunk Dworkins theory that law is not limited to rules, but also extends to principles. It has been argued by Sartorius, that Hart’s ‘rule of recognition’ provides ‘an authoritative standard by which to identify principles as well as rules,’ as it is considered that principles ‘underpin’ and ‘qualify’ rules.42

This argument would be considered relevant if there was a standard definition of what a ‘rule’ is, and what a ‘principle’ is. It is difficult to determine this, as Dworkin argues that they are mutually exclusive, however, Sartoius argues differently, as based upon his theory, principles are integrated into rules, and therefore, Dworkin’s theory considered unjustified.

It has also been claimed that Dworkin has ‘misconstrued’ the ‘rule of recognition.’ It is argued that he mistakenly makes the proposition, that the ‘rule of recognition’

40 Scott J Shapiro, Legality (Harvard University Press, 2011). 41 Hart, above n 35, 250. 42 Rolf Sartorius, Individual Conduct and Social Norms (BookSurge Publishing, 2009) 192. 10

involves the segregation of moral standards from it’s criteria of law, which is a concept that Hart denies himself.43 Therefore, if Hart’s conception of law, correctly identified as incorporating morality in it’s criteria of law, agrees with Dworkin’s theory of law, which involves morality as an integral part of law, then there should not be any disparity between the two theorists. Hence, both theorists are correct in their own right in identifying law with morality. However, Kramer theorises that Dworkin has mistakenly interpreted the ‘rule of recognition’, due to the fact that he ‘[overlooks] the fact that, in both hard and easy cases, judges share high degree of common understanding about the criteria that determine whether a rule is indeed a legal rule.’ 44

Additionally, Dworkin has been criticised due to being too vague in identifying what can be considered a ‘hard case.’ It is argued that Dworkins definition, which involves disagreement between lawyers about the rights and rules applying in the case, ‘fails to distinguish sufficiently a hard case from an easy one, and that it is probable that Dworkin considers all cases to be ‘hard cases.’45

This argument is valid, as Dworkin does not prescribe the circumstances in which a case can be identified as an ‘easy’ case from a ‘hard’ case, and in order to rectify the situation, there needs to be a more definitive framework in order to classify what is an easy case from a hard case.

43 Wacks, above n 1, 157. 44 Matthew Kramer, In Defence of Legal Positivism: Law Without Trimmings (Oxford University Press, 1999) 144. 45 AC Hutchinson and JN Wakefield, ‘A Hard Look at Hard Cases’ (1982) 2 Oxford Journal of Legal Studies 86, 100. 11

It is evident that criticisms of Dworkins criteria of law is somewhat justified in some aspects, and also refutable in other aspects, and in a particular sense in concordance with it, such as agreement on both sides that law co-exists with morality.

It would be difficult to determine which theory would most effectively define law. However, Dworkin’s theories seem to be too vague, and at other times may be considered inconceivable especially with regards to his ‘one right answer theory,’ and thus, could be regarded as the least effective theory of law in comparison to Hart’s.

IV RIGHTS THEORY

Another major proponent of Dworkin’s theories is his ‘rights theory.’ The issue in question, is whether his ‘theory of rights’ conforms to the ‘ideals of liberalism.’

Dworkin has defined ‘liberalism’, and incorporated it into two essential propositions.46 Firstly, it is argued that ‘governments’treat those under its authority as equals, and also treat them with ‘equal concern and respect.’ Secondly, the government must treat all those under its authority equally in the distribution of some resource of opportunity, or at least work to secure the state of affairs in which they all are equal or more nearly equal in that respect.’47

It would be considered appropriate, in ascertaining whether Dworkan’s ‘theory of rights’ conforms to the ideals of liberalism, to apply his theory to his own 46 Ronald Dworkan, A Matter of Principle (Harvard University Press, 1985) 183. 47 Ibid. 12

conceptualisation of liberalism, and compare whether it is capable of satisfying the threshold he has set for liberalism.

In essence, Dworkan has theorised individual rights as ‘political trumps.’ It also proposes the ‘primacy of rights over considerations of the general welfare. In consideration of the improvement of welfare, Dworkan provides that ‘external preferences should be excluded,’ as it undermines the basic right to respect’48 This explanation of rights conforms to the notions of liberalism, which prescribes that all people be treated equally. Dworkin explains that ‘[the] idea of rights as trumps is a formal idea: it fixes the general function of rights within any particular theory that uses the idea at all.’49

It is evident that Dworkins theory of rights does seem to conform to the ideals of ‘liberalism’, as he argues that it ‘must impose no sacrifice or constraint on any citizen in virtue of an argument that the citizen could not accept without abandoning his sense of equal worth.’50

In a practical sense, the idea of a ‘theory of rights’ cannot be deemed to be achievable, as it is not possible for there to be any adequate regulation or administration of equality.

Guest provides an illustration whereby a person suffering a handicap would require more resources to make them equal...