Ronald Dworkin Summary Sheet PDF

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Ronald Dworkin Summary Sheet...

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An Overview of Ronald Dworkin’s Philosophy of Law Penner (2008): “Ronald Dworkin’s theory of law can be regarded as an extended development of, if not a new form of natural law theory, then an explicitly ‘moral’ theory of law, a theory which is explicitly framed as an opponent to positivism, and in particular the positivism of Hart.”

 1st attack on Hart in the 1960s – the “rules and principles” critique of Hart’s positivism: Dworkin argued that Hart’s positivism failed because the RR could only identify legal rules, but failed to identify what Dworkin called legal “principles”, which had a significant place in judges’ reasoning.

 “Hard Cases” (1975) – first general theory of law and judicial reasoning: (i) Judges do not have significant discretion in deciding cases where the law is uncertain.

(ii) There is always a right legal answer to a legal question.

(iii) Judges are theorists in the sense that they must decide cases in the spirit of philosophers working to develop a fully comprehensive theory of political morality. Personified in “Hercules”, a judge with unlimited intelligence, knowledge, and time to think, whose methods of decision making serve as an idealised model of what judges actually do when they decide ‘hard cases’ (i.e. cases with unsettled law).

 “Law’s Empire” (1986) – last substantive stage of development in Dworkin’s theory: “Hercules” is here changed from a moral political philosopher into a kind of literary/artistic critic. A judge is to decide hard cases not so much by developing and applying a philosophical theory of justice but was to decide so as to frame the law in its best light, to make the law the best it could be (i.e. interpretivism).

 Two controversial claims:

(i) The work of lawyers and judges (i.e. the legal work of preparing legal arguments and deciding cases) is a kind of less abstract jurisprudence, and that jurisprudence is a kind of legal reasoning, but at a more abstract level. (ii) Claimed that there was no such thing as a purely descriptive philosophy of law (of the kind Hart purported to pursue). Every legal theory necessarily depended, whether explicitly or implicitly, on judgments about what the law or a legal system ought to be.

Guest (1996), applying Dworkin, argued that Hart’s theory of law was not purely “descriptive” (IS) but also “normative” (OUGHT): Firstly, Hart’s insider POV necessarily entails a hermeneutical/interpretive approach. I.e. It needs to say what law/rules/obligation means and not just describe them as they are. Secondly, Hart was not 100% consistent in his application of the linguistic philosophical approach – Hart expressly says so about his choice of the “wider” approach over the “narrower” approach to law (of Radbruch) in Chapters 8-9 that the issue was beyond linguistics – i.e. that Hart was employing non-neutral, value-laden judgments in his theorising. Finally, Guest concludes that while Hart explicitly describes positive law as not necessarily having a moral content; his “theory of law” (not “law”) is actually a moral project. I.e. Hart wanted to arrive at a conception of law that meets certain moral goals – e.g. how a society with secondary rules complementing primary rules is “better” than one with only rules of obligation alone; or how the “wider” approach of retaining morality as distinct from legal validity actually upholds the sovereignty of individual conscience and allows individual evaluation of the quality of valid positive law.

“Justice In Robes” (2006) – in more recent years, Dworkin appears to be moving away from the ‘literary’/’aesthetic’ reading of Hercules and the job of jurisprudence. He appears to be emphasising a more straightforward image of jurisprudence as a branch of moral and political philosophy. Dworkin basically argues that one essential determinant of legal validity is moral validity. Jurisprudence is thereby treated as a branch of moral philosophy; in effect arguing that the philosophy of law should be regarded as a philosophy of institutionalised justice.

In essence, Dworkin’s philosophy is one which aims to justify the exercise of power by the (institutions of) the State. Dworkin sought to uphold the ideals of the ‘rule of law’ and argued that the coercive power of the state can only be morally defensible if it is legally exercised. “Political philosophy thrives… in spite of our difficulties in finding any adequate statement of the concept of justice. Nevertheless, I suggest the following as an abstract account that organizes further argument about law’s character. Governments have goals: they aim to make the nations they govern prosperous or powerful or religious or eminent; they also aim to remain in power. They use the collective force they monopolize to these and other ends. Our discussions about law by and large assume, I suggest, that the most abstract and fundamental point of legal practice is to guide and constrain the power of government in the following way. Law insists that force not be used or withheld, no matter how useful that would be to ends in view, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified.” (Law’s Empire)

1. Rules and Principles Hart (COL Chap. 7) states that in the majority of cases the rules will be clear. However, they will at some point, become indeterminate and unclear, because they have what Hart calls an “open texture” – a defect inherent in any use of language.

 E.g Does a rule prohibiting “vehicles” from entering a public park also applies to motorised wheelchairs, roller-skates or skateboards? Hart argues that judges/officials must use their discretion in deciding whether a particular case comes within the rule or not. They exercise this discretion by looking at the purpose or the social consequences of adopting a certain interpretation of the rule (e.g. the park as a place of quiet/peace = so all moving vehicles should be prohibited (wide reading); or the park as a place of recreation/enjoyment = skateboards and roller-skates; as well as people on wheelchairs should be outside the rule/prohibition (narrow reading)).  Dworkin strongly disagrees with Hart’s approach of the judge making policy decisions not based on law in hard or unclear cases: He says that in such

situations, the judge does not revert to policy and act as a law-maker. Rather, the judge applies legal principles to produce an answer based on law.

 Then he criticises Hart’s RR for its ability only to identify rules but not legal principles.

E.g. Riggs v Palmer (1889) – Dworkin argues that standards (principles) such as “no man may profit from his own wrong” would have relative weight when considered judicially. Note: Dworkin’s method here is constantly misunderstood. Firstly, Dworkin believed that in Riggs, it was a competition between two opposing PRINCIPLES – i.e. Principle #1 that a beneficiary of a formally valid will should be allowed to inherit under the will; and Principle #2 that no man may profit from his own wrong. Then argues that Principle #2 outweights Principle #1. However, Hart’s interpretation of Riggs is that, it was a competition between a RULE and a PRINCIPLE. Penner (2008) agrees with Hart’s interpretation: “It is worth noting, however, that in Riggs v Palmer the rules were clear: the murderer should have inherited, and the legal principle in fact overruled the rule.” Hart, in his Postscript (COL), admits that he had not given enough thought to legal principles. Then says that most “mature” legal systems lean towards certainty and predictability by stretching the rules to deal with unclear cases – rather than relying on policy. However, he warns that if rules are stretched too much, the application becomes artifical (leading to possible injustice). Dworkin’s argument is that if the legal system is seen as being comprised of both rules and overarching principles, then it is possible to avoid such injustices. In other words, Dworkin’s argument is that judges are always constrained by the law (whether they take the form of clear rules or overarching legal principles). His picture of the legal system is one that is seamless and gapless – where in every adjudication, there are legal rules and standards which the judge is obliged to follow, although he does have discretion in the weak sense of weighing the standards set him by authority. What Dworkin denies is that judges have discretion in the strong sense to decide cases without being bound by precedent or statute.

2. The Right Answer Thesis Dworkin, keeping in line with his argument that judges do not make laws nor have right to resort to an untrammelled discretion in their decision-making (e.g. on policy grounds), argues that:

Legislature = can use policy to make decisions inconsistent with previous legislation – in effect, making new laws (i.e. forward-looking).

Judiciary = cannot do so – therefore, must only decide consistently on precedents (i.e. backward-looking). Of course, Dworkin was smart enough to admit that even this strict adherence to precedents will not ensure 100% consistency in judicial decision-making (e.g. distinguishing, narrowing the ratio, different interpretations, etc.). But he maintains that, in theory, there is only one single “right” answer to all legal questions. Unfortunately, it appears that only Hercules (the “lawyer of superhuman skill, learning, patience and acumen”) can arrive at the right answer every time! Hercules “must 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 provisions as well.” (Taking Rights Seriously (1977)) Actually, all that Dworkin is arguing for is the possibility of a “law-way” of getting a right answer every time without resorting to policy (even though each judge may differ slightly on principles). I.e. That there will always be law to determine a hard case.

Penner (2008): “... the controversy is to a certain extent overblown in that Dworkin recognises that the requirement that judges weigh up arguments based on principles introduces a weak discretion. If judges are to make decisions at all they must be given leeway so that each judge’s scheme of principles may be slightly different.” Furthermore, when Hercules is constructing his “scheme of abstract and concrete principles”, presumably ANY IDEA that contributes to his scheme counts as a reason – a LEGAL REASON, for deciding the case one way or another. From this, it does appear that a “right answer” based on law really is possible in every case. I.e. Most reasons relevant to deciding a case on any ground whatsoever would thereby count as a legal reason!

3. Law as Integrity In Law’s Empire (1986), we have Dworkin’s most complete version of his theory of law; which he called “law as integrity”. Dworkin argues that a legal system must be (i) fair; (ii) just; and (iii) have integrity.

To demonstrate that the subjects of a legal system actually reasonably expect that law has integrity, Dworkin argues the case of “checkerboard statutes” – e.g. that abortion be allowed for women born in odd-numbered years and prohibited for women born in even-numbered years. The solution would be fair and just (from the perspectives of both “pro-life” and “pro-choice” groups – since it’s better that some abortions are allowed/prohibited than that all abortions are allowed/prohibited!). But we would be justly offended by such a “solution” because law would then lack integrity. Hercules must be able to justify his decision in any case, but particularly in a contentious hard case, by constructing a theory of the law’s rules and principles into which his decision fits, and which shows the law “in its best light”. The judge’s theory must be a theory of principle, not policy. Question: What is it for a theory to succeed in showing the law in its best light? Dworkin says that it must be tested in two dimensions: (i) FIT = Fit with what is accepted as settled law. This is the core of “integrity” as a person with integrity is one whose current views are in keeping with his part views in large measure (and do not change like the weather). I.e. Fit ensures that the law is true to its past. (ii) SUBSTANCE = Refers to concordance with substantive political morality. (Elsewhere, Dworkin uses other terms such as JUSTIFIABILITY.) To show law in its best light = to construct a theory of the law which fits the settled law as well as possible, while at the same time interpreting the law so as best to accord with morality, in particular with the moral virtue justice. Question: How do we put integrity into practice? Dworkin uses as example the case of McLoughlin v O’Brian (1983) – claims for negligence causing emotional injuries. COA: D owes C a duty of care and her emotional injuries were reasonable foreseeable. But denied claim saying that liability for negligence had to stop somewhere (note: policy based decision – “floodgates” argument, etc.) HOL: Reversed COA’s decision and allowed C’s claim because C saw her daughter “in the immediate aftermath”. HOL considered policy arguments and said that such a precedent could open the floodgates of litigation. But said that such policy arguments must be sufficiently grave – which they were not in this case (Lord Edmund-Davies). Lord Scarman (HOL) used a different argument (that parallels Dworkin’s): The question is whether C has established her RIGHT to recover or not. o If C has done so, no argument of policy can take away that RIGHT. Any adverse effects on the community (i.e. policy reasons) should be dealt with by Parliament; not the courts. The courts are, therefore, only to apply the law in reference to protecting the rights of the parties established at law. (But note that all the other judges were busy arguing policy and believed that they, and not Parliament,

could use policy to deny rights!) o I.e. To Dworkin, Lord Scarman was Hercules in this case!!! 

The problem with this example is this – is INTEGRITY really the way judges decide cases in practice? Not really. In this case, it appears only that the minority (actually only Lord Scarman alone) is deciding case in this way. Criticisms of Law As Integrity: Finnis (1987): Argues that Fit and Substance will not serve together since they are not values of the same kind that can be measured on the same scale (i.e. incommensurable values). E.g. “Shortest” + “Most Romantic”; “Funniest” + “Best”; “Most English” + “Most Profound” – can we use these pairs of incommensurable values to identify English novels? “Two incommensurable criteria of judgement are proposed in Dworkin’s theory, ‘fit’ (with past political decisions) and ‘justifiability’ (inherent substantive moral soundness).” Raz (1986): Argues that Dworkin’s argument does not really solve the problem at all. The criterion of ‘fit’ applies in law as integrity and substantive moral considerations play some role in determining the boundaries of the legal. I.e. The total law = the settled law + all the principles that theoretically cohered with the settled law: However, a judge in apartheid South Africa should decide a hard case in keeping with the settled law – which is in keeping with the principles of apartheid! Would law as integrity really allow the judge to grant more weight to substantial justice (i.e. by framing the law in the best possible light rather than by depending rigidly upon apartheid principles)? Also argued that it’s uncertain that Dworkin’s theory can really escape the need for the RR. After all, there must be some standard criteria to identify the settled law first before one can talk about any substantive morality that adheres to the settled law (allowing it to be seen in the best light). I.e. Isn’t it important to see the law itself first before any talk of seeing the law in the best possible light?...