Integrity, Community and Interpretation

Critical Analysis of Ronald Dworkin's Theory of Law

Simon Honeyball, James Walter

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9781138369924
• eBook ISBN: 9780429766701
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

First published in 1998, this volume examines the work of Ronald Dworkin, the leading legal philosopher of our time, ten years after his seminal work, Law's Empire. Its impact and influence was so extensive that the authors felt compelled to undertake both an in-depth analysis of both the book itself and its critical reaction, including a survey of the literature on Law's Empire.

1 Early Views and Critics

Law's Empire is Dworkin's most important work in legal theory, and likely to remain the only full-length exposition of his views on the nature of law. It was the culmination of the development of his thinking over many years. Taking Rights Seriously, published in 1977, is a collection of essays mostly published separately some years previously but which covers much the same ground as the later work. Nevertheless, it would appear to have been Dworkin's intention in publishing these essays as a whole that they be read apiece as representing a coherent exposition of his views at that time. Taking Rights Seriously was important and it still is in the sense that it is not only interesting to trace the development of Dworkin's thought in the nine years between it and Law's Empire but by examining it we can better understand the later work. Dworkin has not attempted to show how far he has had to abandon some of his earlier positions, and it is indeed difficult at times to determine how much he has done so. This is because, although the thrust of the arguments remain much the same as they were, Dworkin has radically shifted ground in the book not only in the way that he approaches his task, and in the intellectual tools he takes up in order to perform it, but also in that he remoulds his targets of attack whilst retaining them. We shall therefore begin by taking a critical look at the earlier work, at the difficulties to which it gave rise and the criticisms it attracted in order to set out Dworkin's concerns, to paint the problems arising from his earlier views with which he had later to deal, to understand better his solutions and to examine their originality.

Legal Positivism

Dworkin's legal theory has evolved from his views on a theory known as the plain fact view of law or legal positivism. In his early, seminal essay 'The Model of Rules'¹, Dworkin attacks this theory, and specifically the version of it espoused by H L A Hart² (his predecessor in the chair of jurisprudence at Oxford) which is widely regarded as being the most influential Anglo-American statement of the positivist thesis. However, Dworkin focuses on various basic tenets that are present in most theories purporting to be positivist. Broadly stated, the position Dworkin wishes to challenge is that which holds that the law of a particular community, and legal obligations arising from it, are discovered by reference to criteria based on the pedigree of special rules used by the community directly or indirectly for the purpose of determining which behaviour will be punished or coerced by the public order. This view emphasises the manner in which rules are adopted rather than their content and that, when these rules run out, the officials in the system (normally judges) must reach beyond the law in order to exercise discretion.³ The exercise of this discretion creates a new legal right provided it is exercised correctly so as to infer 'pedigree'. Positivism as a theory based on these plain facts thus offers an account of law consisting of imperial, descriptive propositions. It describes the law as it is, not as it ought to be.⁴ This does not mean that it is not possible to make meaningful if uncommitted accounts of normative judgements, in that they too can be descriptive. For example, it is possible for a non-vegetarian to tell a vegetarian friend that he should not eat a particular dish if it contains meat, even though this obviously does not apply to himself.⁵ The appeal of this version of positivism lies in the fact that it offers the virtues of clarity and simplicity and thus appeals to us as a means of constraining law's apparent complexity. It is also attractive in that it is probably a widely-held view, and one closest to the popular vision of law.

In The Concept of Law Hart draws an important distinction between two types of rules he labels primary and secondary rules. Primary rules are those that impose obligations or grant rights to members of the community, whereas secondary rules are those that deal with the application and enactment of the primary rules.⁶ Hart draws a further distinction between rules and orders on the basis that rules possess normative force. One is under an obligation, not just obliged, to do as a rule provides, and thus its authority is not simply dependent upon the physical power of its author as in the case of a gunman staging a bank robbery. Instead Hart distinguishes between two ways in which a rule may gain authority. It may do so through its acceptance by the community or through its validity in being enacted in accordance with a secondary rule. Hart argues that there must be a fundamental secondary rule, which he calls the rule of recognition, that acts as a criterion of the validity of all rules in the system, both primary and secondary. Once this is established there exists a distinct set of legal rules and hence law itself. This fundamental rule will be the only rule in the system whose binding force will be dependent solely on its acceptance as it cannot derive its validity from other secondary rules in that it gives validity to them, and thus to determine its nature we must observe the behaviour of the relevant community citizens, and most importantly the practice of its officials.

By locating the determination of the nature of the rule of recognition in the practice of officials in a system Hart adopted a decidedly linguistic approach in consructing his concept of law. As the rule of recognition is defined by reference to the shared practice of officials, to determine if a particular standard is a law it is necessary to look to the shared meaning that the officials have of law. In cases in which there are no shared meanings, that is to say where it is difficult to say what the law is on any particular point, officials are forced to exercise their discretion. Central to Hart's theory then is the need to cure the perceived defect of uncertainty arising from the exercise of this discretion within the law. It is to this that Dworkin devotes his attack by arguing that Hart's resultant account of the law is too simplistic.

Dworkin’s Critique

The Role of Principles in Legal Reasoning

Dworkin's thesis in 'The Model of Rules I' is that where lawyers reason or argue about legal obligations and rights, particularly in hard cases,⁷ they have recourse to standards that do not function as rules but operate differently as principles, policies and other sorts of standards.⁸ Positivism, as Dworkin pictures it here, is a system built on the contention that the law consists solely of rules. Dworkin's claim is that, once we recognise that this is not the case, positivism's central notion that there is a single criterion of legal validity is inadequate as an explanation of the operation of these non-rule standards. Dworkin's immediate objective is therefore to distinguish these standards, which he refers to generically as principles, from rules. In order to establish this, Dworkin highlights decisions in which the courts have applied legal principles in preference to rules. The main example used is that of Riggs v. Palmer,⁹ in which the court had to decide whether a murderer could inherit under his victim's will. The court noted that the "statutes regulating the making, proof and effect of wills, and the devolution of property, if literally construed ... give this property to the murderer".¹⁰ However it also noticed that all laws including contracts "may be controlled in their operation and effect by general, fundamental maxims of the common law".¹¹ The court then proceeded to apply the old maxim, or principle, that no man shall profit from his own wrong and thus the murderer did not receive his inheritence. Dworkin conducts a similar analysis of Henningsen v. Bloomfield Motors Inc.¹² in which, despite the plaintiffs inability to provide any authority for his argument, the court agreed with his case and made a number of references to general principles in order to justify its decision.¹³

The difference between rules and principles for Dworkin is a logical one, for whereas rules apply in an all or nothing fashion¹⁴ principles state a reason that argues in one direction that does necessitate a particular decision either way. Rules can of course be subject to exceptions but, if the facts they stipulate exist, provided the rule is valid it will supply the answer to the case in doubt. If the rule is not pertinent to the facts it will contribute nothing to the outcome. This first distinction between rules and principles entails another. This is that principles, unlike rules, possess a dimension of weight. Where principles are in conflict the dispute is resolved by taking into account the relative weight of each, and this judgement will often be controversial. Rules lack this dimension, for where two rules are in conflict one of them must be invalid.

These differences are problematic for positivists. A difficulty is that, whilst after a case is decided we can say that it stands as authority for a particular rule, in cases such as Riggs and Henningsen the rule does not exist prior to the case, and the courts appear to cite principles as being the justification to adopt and imply new rules. Therefore, positivists must account for the role of principles in legal reasoning. There are two possible lines that might be taken, each reflecting a different conception of the position of legal principles.¹⁵ Firstly, they could deny that principles can be binding in the way that legal rules are, and state that in cases such as Riggs and Henningsen the courts reach beyond the law to extra-legal principles they are free to apply if they so wish. Alternatively, they could treat legal principles in the same way as legal rules and say that accordingly they must be taken into account in cases involving legal obligation.¹⁶ These two options may initially appear to be based simply on a linguistic distinction as to how we would define 'law'. However, this would be to miss an important point about the nature of legal standards. For if we were to adopt the second line of defence we would hold that the judge had acted incorrectly were he not to consider principles in a situation where they were relevant. This will not however be the case were we to adopt the first defence, and in cases such as Riggs v. Palmer we must assert that the decision was an act of judicial legislation applied ex post facto. Which view we take has implications of a profound and theoretical nature as to how we view the law and in particular the judicial function.

Judicial Discretion and the Two Defences

Before we examine Dworkin's discussion of the two defences in more detail, we must return briefly to examine his views of judicial discretion which informs it.

Dworkin's argument is based on the idea that we use the term 'discretion' in three different senses depending on context.¹⁷ He argues that sometimes we use 'discretion', in a weak sense, which is to say when we mean that the standards that an official must apply require the use of judgement. This would be the case if, for example, an army sergeant were instructed to select his five most experienced men, it being unclear who these were. We also use 'discretion' in a different weak sense to mean that an official has final authority to make a decision and that this cannot be reviewed or reversed as with unappealable jurisdiction or final courts in a judicial hierarchy. Sometimes however we use 'discretion' in a third and stronger sense. Here we mean not that the official must exercise judgement, or that no-one will review that exercise or judgement, but that on some issue "he is simply not bound by the authority in question".¹⁸ This would be the case were the sergeant to be told to select any five men he would like to. It is however important to realise that this third sense of discretion does not amount to licence, for decisions made under a strong discretion can be subjected to criticism on the basis of poor judgement.

The distinction between the first weak sense ...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface
• 1 Early Views and Critics
• 2 The Interpretive Theory
• 3 Conventionalism, Pragmatism and Interpretation
• 4 Integrity and Interpretation
• 5 Integrity, Liberalism and Community
• 6 Wider Contexts
• Bibliography
• Index