Primer to
Jurisprudence (Legal Theory)
Outline
- Aims of Legal Theory
- Legal Positivism: Laws and the Legal System
- Legal Anti-Positivism: The Critique of
Positivism
- Legal Anti-Positivism:
Hard Cases
- The Natural Law
Tradition
1. Aims of Legal Theory
- To produce intellectual
backbone to law by distinguishing it from similar phenomena such as
coercion, authority and morality.
- To provide good reasons –
beyond the formal legal rules – to justify the resolution of legal disputes.
- To
describe, justify, evaluate, criticise or reform the law.
Why do we need legal theory?
Certain legal theorists
have raised the question ‘why do we need legal theory’. HLA Hart, for instance,
questioned the need for legal theory when other equally practical disciplines
like medicine do not raise the question of what is medicine? Hart’s assumption
is that if practice can go well without asking lofty philosophical questions,
why do we need these theories at all? The following two justifications suffice
the controversy regarding the need for legal theory.
- Law and Bus-Driving
MacCormick draws a
parallel between bus-driving and lawyering as both pertain to the practice of a
certain profession. He argues that as we do not need philosophy of bus-driving,
likewise we do not need theory for law. But we need to draw a distinction
between bus-driving and lawyering. Unlike bus-driving, law is comprehensive in
its regulatory reach, and where it chooses not to interfere, this is due to
self-restraint. For instance, constitutional guarantee of freedom of speech is
an illustration of law’s exercise of self-restraint. Moreover, whereas
bus-driving is optional, law is non-optional. This means that no one can
opt-out of the application of law. It compulsorily claims to apply to all those
who fall within its self-defined jurisdiction.
- Role of Coercion in Law
According to Kelsen, law
is a coercive order which is common to all legal systems. This coercion can be
serious. It may imprison a person or take his life and property. There is a
debate amongst theorists regarding the centrality of coercion in law. But all
theorists agree that coercion is a significant aspect of law.
What does all this add
up to? Does this mean that since law affects us deeply, therefore, we need
justification for law? Some theorists argue that because of this reason, law
needs justification. Once it is settled that law needs justification, another
issue arises: what kind of legal theory do we need?
What kind of legal theory do we need? Justificatory, critical,
reforming or descriptive?
Justificatory task:
This approach centres
on the justifications of law in the society. Dworkin argues that the law justifies
the exercise of coercive power by the state. He asserts that the best legal
theory is that which provides the best explanation for the exercise of coercive
power of the state. Finnis who has put new life in natural law, argues that his
book would explain how law is justified. He argues that the moral purpose of
the law and the aspiration to achieve a common good for everyone justifies the
existence of law in society.
“There are
human goods that can be secured only through the institutions of human law…. It
is in the object of this book to identify those goods… and thus to show how and
on what conditions such institutions are justified….”[1]
An
alternative view of the task of legal theory: General and Descriptive account
of law
Hart was a philosopher
and a barrister. He wanted to re-infuse legal theory with philosophy.
Hart’s The Concept of Law is
based on his lectures to undergraduate students. His alternative view is that
legal theory should be general and descriptive
In the introduction to The Concept of Law, he provided the
general and descriptive conception of law; it is an important preliminary to
any useful moral criticism of law. It does not mean that he is not interested
in moral dimension of law. Such dimension is of secondary importance in Hart’s
conception of law. Ronald Dworkin, who was his successor at Oxford, subjected
Hart’s conception of law to criticism. Dworkin provided a justificatory and evaluative
theory of law which was criticised by Hart in his postscript. Hart did not
answer the criticism on his work himself. After his death, unfinished documents
were found which paved the way to provide rebuttal to the criticism of his work
especially by Dworkin.
Whether
justification and description are mutually exclusive?
Having reviewed the
approaches to study legal theory, it is pertinent to now look over the very
subject matter of this study. If jurisprudence is descriptive, what does it
describe? The obvious answer would be: law. But what does actually constitute
law and how can efforts be made to describe it? Whether is it even worth an
attempt to define the law? These are the questions that would now be looked
over in the following sections through different theoretical lenses provided by
John Austin, Hans Kelsen, HLA Hart, Ronald Dworkin, Raz and Finnis.
2. Legal Positivism:
Laws and the Legal System
Hart does not define
law, rather he provides answers to three recurrent issues. In the first chapter
of his work, he mentions these issues, which are:
1. How does law
differ from, and how is it related to, orders backed by threats?
The difference between
law and bus-driving shows that law is non-optional and coercive. Not everyone
is obliged to learn the skill of bus-driving. On the other hand, obeying the
law is an obligation on everyone. Orders backed by a gunman are still different
from law. Non-compliance with the orders of a gunman may lead to bad consequences;
however, this cannot be equated with the sanctions of the law. Some argue that
state is the biggest bully of all. For Hart, it is the authority that brings
compliance based on its efficacy. However, according to Austin, it is the
threat of sanction that brings obedience.
2. How does
legal obligation differs from, and how is it related to, moral obligation?
This is a big question.
Morality also comes to us in normative form. It also tells us what to do and
what not to do. There must be some relation between law and morality because
they share certain features.
3. What are
rules, and to what extent is law an affair of rules?
Hart uses the technique
of contrasting law with the phenomena (threats and morality), which has
ostensible similarities with it in order to paint a more sophisticated picture
of its distinctive features.
Legal Positivism: A Brief
Introduction
Bentham, Austin and
Hart are legal positivists. According to them, law exists when it is posited,
or laid down, by some person or procedure. Legal positivists sought to define
what law is rather than what it ought to be. For example, it is often contested
whether abortion is illegal. Law prohibits abortion under the UK Abortion Act 1967.
This Act is passed by the parliament. This law is valid because of its sources,
and not because of its merits. In other words, the Abortion Act 1967 is a law
because it is passed by the parliament. It does not matter whether abortion itself
is good or bad.
We should not over-emphasise
this thesis by saying that legal positivists deny moral views. Positivists
argue that what makes law is its source, not its merits. There is a separation
between law and morality according to positivists because of their origins. But
on many points, they believe in both law and morality, and recognize the
overlap between the two.[2]
Command
Theories of Legal Positivism
John Austin describes
law as a command. For Austin, law is a command by a political superior – the
Sovereign – to the political inferior who habitually obeys it and is backed by
a threat of sanction. This is a useful idea from a common man’s perspective.
Obey the law or go to jail!
Concepts arising from
this definition:
1. Command, 2.
Sovereign, 3. Habitual Obedience, and 4. Sanction (the smallest chance of
incurring the smallest possible evil)
Who is a Sovereign?
What is command?
Advantages
of the command theory
Difficulties
of the Command Theory
Hart criticizes the
command theory in The Concept of Law.
He presents the problem of Rex I and Rex II. After the death of Rex I, Rex II
issues ten laws. He argued that how are the laws of Rex II laws in connection
with the commands of Rex I? Hart identifies two problems with this theory,
namely:
Continuity problem: Why does law
exist already? We have yet to see whether people habitually obey Rex II. Rex I
is dead, and it is inappropriate to assume that people still obey Rex I. If the conception of
habit of obedience is such an indispensable ingredient for constituting a
‘sovereign’, then authority of succession of Rex II cannot be explained because
the habit of obedience of population was for Rex I, not for Rex II, and habits
do not develop in a day or two. Hart argues that we
do know that systems continue after the deaths of sovereigns and dissolution of
parliaments. The command theory does not explain how laws continue to apply. Hence,
he says that the command theory is too simplistic.
Persistence of Law: Command
theory also fails to explain the persistence of certain laws. In R v Duncan
(1944) a woman was prosecuted in England and convicted for telling fortunes in
violation of the Witchcraft Act 1735. Why did this law persist? How can
a statute enacted three centuries ago still be a good law? Hart argues that the law persists not because of the
habitual obedience of society, but because it was enacted by the parliament and
was never repealed.
Hart’s
alternative: legal systems as the union of primary and secondary rules
Hart describes law as a
union of primary and secondary rules. The primary rules impose duties and the secondary
rules confer powers. There are three types of secondary rules: rules of change;
rules of recognition; and rules of adjudication. For
Hart, the combination of primary and secondary rules is the key to the
understanding of jurisprudence.
Why do we need primary
and secondary rules?
Primary rules are those
which impose duties and obligations and impose sanctions. With primary rules
alone, a society cannot work for long. A society that only has primary rules is
a primitive society. In Hart’s conception, such a society is bound to face the
problems of uncertainty, inefficiency and static nature of the laws. Therefore,
to bring the society out of this primitive stage, the primary rules should be
unified with the secondary rules (rule of change, rule of recognition and rule
of adjudication).
Rule of Recognition: the main
function of the Rule of Recognition is to identify whether another rule is part
of the legal system or not. It provides the standard of validity of other rules
in a legal system. Rule of Recognition is the authoritative criterion for
identifying primary rules of obligation. This criterion may take any one or
more of the variety of forms: meaning that they may include reference to
authoritative text; to legislative enactment; to customary practice; to general
declarations of specified persons, or to past judicial decisions in particular
cases. Rule of Recognition is not universal; it only signifies when something would
be called as law.
How do we identify the rule of recognition? Where does it come
from?
It is a social fact or an
official practice. Hart answers it through an analogy with the standard of
meter. For Hart, it does not matter where it comes from. All we need is an
objectively identifiable standard/measuring meter to tell what law is and what
is not. For Hart, “Rule of Recognition is inherently objective.”
If a woman goes for
abortion, the officials will recognise her right under the law. Why does the
Abortion Act 1967 hold the value of being a law? Under Hart’s conception, any
legislative exercise can be described in the following words: anything passed
through a prescribed legislative process within the bounds of the enforced
constitution would be declared as law. Thus, the process enforced by the
constitution validating the laws passed through it is the Rule of Recognition
and is the reason why the Abortion Act 1967 is considered as a law.
Can the union of
primary and secondary rules solve the difficulties of continuity and
persistence?
We have the mechanism
to know the validity of law through the rule of recognition. The secondary
rules keep the system persistent. The rule of recognition keeps the system
going. It does not matter who controls the parliament. All these secondary rules
have to work together to exist. Impersonal rules keep the system going. Legal
system can regulate its own creation under the secondary rules.
Hans
Kelsen: Legal systems as chains of validity unified by the Grundnorm
The validity of a legal
rule can be traced back to the basic norm or grundnorm. What justifies the act
of traffic warning for ticketing a person’s car? If the traffic warden tickets
your car for wrong parking, you can trace the roots of his authority to a
higher norm.
What is Grundnorm?
The Internal Aspect of
Law
(1) Rules in The Concept of
Law, or how Bentham and Austin failed to understand law from the point of
view of those who are subject to it and use it in guiding their conduct.
The command theory
describes law as a command of sovereign who is habitually obeyed by the
population. Hart claims that the command theory presents law from an external
point of view only. It means that when the order is backed by an external
threat of sanction, obedience would be rendered by the people. It is a predictive
aspect of the account i.e. if command is broken, sanction follows.
(2) An Introduction to the Principles of Martian Sociology: what is the
mistake which is made by the external observer at the traffic lights—what does
he miss? (Reading: Hart, The Concept
of Law, 55-61 and *88-91)
Example of following
traffic rules observed by someone who comes from Mars: If red light is on,
people stop. If they do not, the police charge them. This is not an untrue
account, but it is missing something important. This is only a partial account.
We know that people in cars take red light as a signal and reason to stop. They
know that there is a rule which requires them to stop.
Hart says that we are
missing an important thing, that is, human beings are aware about rules. He
calls this a critical reflective
attitude towards rules. Hart says that an alien is missing the whole
dimension of normativity—what we ought to do. People may have different reasons
for obeying the law. If we internalise the value of rule, we will not follow it
out of compulsion. The person indulges in a critical reflective attitude. The
reason for stopping himself from doing something is because he himself believes
that it is wrong. This is what Hart thinks is the internal aspect of law. In
short, people do not necessarily abide by the law because of the threat of sanction.
Sometimes, it is the critical reflective attitude of the people that identifies
a value in following a particular act because of it being inherently good.
Understanding
why the external observer makes the mistake which he does.
Why is it missed?
Habits
and Rules reconsidered
This leads Hart to draw
a distinction between habits and rules. We need to differentiate between habit
governing and rule following behaviour.
There are certain
differences, primarily three indicators which are:
For example, there are
two bus stops and I usually take a bus from one bus stop. But one day I want to
have a change and go to the other bus stop. This will not make me subject to
criticism. I will not criticise myself for this as well (internal aspect). In
another scenario, if I am required to teach and do not turn up for teaching, then
I will be subjected to criticism. There is a reason for criticism because I
have a contract to turn up for teaching. This contract provides a rule.
The
internal point of view and the union of primary and secondary rules
Where does the internal-external
aspect of law fit in?
We have already given
part of the answer while discussing Hart’s criticism of external view. The
views of subjects (who obey law) are missing here.
Primary rules are
conduct governing rules while secondary rules deal with change, adjudication
and recognition. Secondary rules are directed towards officials. Hence, there
are two minimum conditions, necessary and sufficient, for the existence of a
legal system. These are:
(1) Rules of
behaviour, which are valid according to the system’s ultimate criteria of
validity, must be generally obeyed.
(2)
Secondary rules of change, adjudication and recognition must be accepted by the
officials of the system from the internal point of view.
Official acceptance
from the internal point of view means an acceptance that the secondary rules
set a standard which ought to be followed—common standards of official
behaviour which they uphold and criticise deviations in their own and others
conduct. These are the officials who should have this internal aspect of the
point of view. If a judge accepts a certain rule, he will criticise any
deviation from it.
However, it is not
necessary that officials accept the rule as a morally good thing. As a judge,
you do not need to believe that it is good to have rules. You may have so many
reasons to be a judge. A judge can be an anarchist. So long as a judge performs
his duties, there is no problem. Hart considers himself to be a realist. He
thinks that as long as some civil servants who write the laws obey them even if
they do not believe in them, there is no problem.
Hans
Kelsen’s Pure Theory of Law, and the role of the basic norm, or Grundnorm, in
explaining the normativity of law
Kelsen's Pure Theory of
law is pure from morality and sociology. The theory is pure because it
separates jurisprudence from other disciplines like ethics, politics, and
psychology. It is a pure legal science because it has its own methodology. For him,
the explanation of law’s internal aspect, or its normativity, lies not in the attitudes
of those who are subjected to the law. Kelsen explains pure social facts. He does
not want to look into the normativity of law.
Grundnorm:
For Kelsen, every law is legitimized
by the other law. This hierarchy of laws narrows down as we go up till we reach
the Grundnorm, which legitimizes other laws underneath it. Grundnorm or the basic norm is a presupposition. The
Basic Norm is not posited, rather it is presupposed. Hence, the basic norm is
assumed to be valid. The Grundnorm is not a rule of recognition. The
presupposition is that the historically first constitution ought to be followed
(that coercive acts ought to be carried out under the conditions which the
historically first constitution and the norms created according to it prescribe).
There is a necessity of presupposing the basic norm if we are to understand
legal system as creating valid norms or guides to conduct.
Some key points as to
the concept of Grundnorm:
ð Grundnorm: The
historically first constitution ought to be obeyed. à
The
grundnorm of the constitutional system. (Presupposition).
Tension with legal
positivism
Raz provides one
explanation of Kelsen’s theory. Think of a hypothetical man who only accepts
the legal system and its rules. This man presupposes the norms. He thinks that
these norms ought to be obeyed. Raz argues that, in order to understand the
pure theory, this hypothetical man has to presuppose everything. Raz calls this
‘justified normativity’. This is contradictory.
Resolving the tension
A professional and
uncommitted sense of adopting or presupposing the basic norm – statements from
a point of view – the point of view of the legal system/hypothetical legal man.
Raz thinks that there
may be a professional attitude towards norms without being a hypothetical legal
man. You can detach yourself from the legal system. Imagine two friends. One is
Catholic and the other is Orthodox Jew. Catholic friend is an expert on
Rabbinical law. He can guide his Jewish friend regarding Rabbinical law. But he
makes detached statements. He does not believe in Judaism.
Legal philosophy has to
presuppose the basic norm without going to the system. For example, a radical
immigration lawyer who does not believe in the immigration system but advises
according to the laws can completely detach himself from his views while conducting
his profession.
Hart’s Criticism:
Kelsen reduces
everything into a formula, hence it obscures the social functions of law. Hart
gives example of two laws which have very different social functions, however,
when they are laid down in Kelsen’s formulas, they look exactly the same.
Hence, there is a flaw in Kelsen’s theory. These examples are:
Fine to be paid if taxes are not paid. In Kelsen’s formula: “If
you don’t pay taxes, you ought to pay fine.”
At some place, the
purpose of taxation is just to reduce the occurrence of an activity while at
other is to generate some revenue. Similarly, the purpose of fines may also
vary from situation to situation.
Two statements:
These two statements
are identical, but theory is inadequate to recognize the different purposes
that they satisfy. These are identical as they both are the directions to the
official. But these varying purposes are obscured in the description of Kelsen’s
theory.
Hart says that this
non-distinction is absurd. Law is not just about sanctions. Kelsen’s
interpretation of law diminishes the social functions of law which include
guiding behaviour and coordination of human activities. According to Hart,
Kelsen’s theory only works in a court room.
3. Legal Anti-Positivism:
The Critique of Positivism
Criticism of Hart’s
theory in Dworkin’s famous paper ‘Model of Rules’
A. The three central tenets of positivism:
a)
The law is a set of rules, and these rules are identified by their
pedigree, rather than their contents. Their status does not depend on
their contents.
B. Dworkin argues that this theory leaves out many things which we
know about our legal system. For instance, it leaves out principles like ‘no
one should benefit from one’s own wrong’. There are some hard cases in which
rule of recognition cannot provide guidance. In these types of cases, judges apply
principles – which are beyond the legal rules – to decide cases. Hence, law is
not simply rules, but there are also principles which come from the morality of
community and political standards. These principles are as important as the rules,
but they do not derive their validity from rule of recognition. Hence, Dworkin argues
for a distinction between the rules and the principles.
Rules v
Principles
Rules apply
in all or nothing manner. For example, the requirement of three
witnesses for the validity of a will. You make the rule more and more
elaborate in order to make it clear what to cover and what not to cover. They
are binding because they must be used and considered. In case, the rules are
not followed the action might not be legally recognized. For instance, if the
requirement of three witnesses is not followed strictly, the will would not
hold any legal force.
Same
is not true regarding principles. For instance, there is a principle that ‘no
one should benefit from one’s own wrong.’ But in many instances people do
legally benefit from their own legal wrongs. For example, it has long been an
accepted law that trespass gives legal rights through adverse possession.
Principles
have a dimension of ‘weight’ or ‘importance’, whereas rules do not. If there
are two conflicting rules, then they have to be reconciled. On the other hand, if
two principles conflict, then both remain relevant, but the important one
prevails because it is more important in that situation. However, we can also
say that the reason one rule is exception to the other is because we consider
one to be more important. One legal rule may be more important than
another because it has a greater or more important role in regulating behavior. When
principles intersect (the policy of protecting automobile consumers
intersecting with principles of freedom of contract), one who must resolve the
conflict has to take into account the relative weight of each.
Dworkin
clarifies that sometimes a rule and a principle can play much the same role,
and the difference between them is almost a matter of form alone.
B. There are
situations which are not covered by the existing authorities. You have to make
legal arguments in order to decide the case one way or the other. A good legal argument persuades
the court. Legal argument has a distinctive form to it.
Two hard cases:
Similarly, in Hemmingsen
v Bloomfield Motor, a
car manufacturer was selling his car. He signed a contract excluding his
liability for defects in car manufacturing. The man went to the court and sued
the car manufacturer. The car manufacturer brought the contract in front of the
court. Rules in this case would find the contract valid. However, the court did
not follow this. The judge developed a new principle and held the car
manufacturer liable.
Positivists are
committed to the idea that where there is no rule applying to a case, officials
have a discretion to decide the case unconstrained by other legal standards
(such as principles). But what is
discretion?
Nature of discretion
1.
Where the application of the standard requires judgment on the
part of the decision-maker (for example who is the most experienced person to
undertake a particular job);
In both cases, it does
not mean that there are no standards to be followed. Even though courts can
overrule their decisions, it does not mean that they are not guided by some
legal standards. When considering overruling an earlier decision, the court
weighs up competing principles. If this was not the case, then precedents would
not be binding.
Judges must have
discretion, but does it mean that they can do anything? The main criticism is
that judges are not elected representatives. If they start acting as deputy
legislators, then it will be inherently undemocratic. Also, if judges are
allowed to exercise discretion, they would be legislating retrospectively. To
these criticisms, Dworkin responds that judges can only make decisions based on
principles. They do not know laws involving policy making. They only need to
look at established past precedents and legal principles to meet the
requirements of “justice or fairness or some other dimension of morality”.[4]
This does not mean that they are acting undemocratically. Through precedent,
they establish such principles and do not create a new duty/right.
C.
Is this a supplement to
Hartian account of law?
Dworkin argues that
legal principles cannot be accommodated under the Rule of Recognition. Therefore,
the Rule of Recognition is not a litmus test to distinguish between law and
non-law.
The problem with
principles is that they do not have a pedigree, they might have an
‘institutional support’. The pre-existing rules of an institution anchor the
decisions within that framework. The origin of these legal principles lies not
in a particular decision of some legislature or court, but in a sense of
appropriateness developed in the profession and the public over time.
Their continued power depends upon this sense of appropriateness being
sustained. We could not devise any formula for testing how much and what kind
of institutional support is necessary to make a principle a legal principle,
still less to fix its weight at a particular order of magnitude.[5]
A legal principle must
have some grounding. There must be something in the existing legal system that
exemplifies this principle. Dworkin argues that the institutional support is
not there for legal principles. Some legal principles might be very popular at
one point in time. For instance, in the nineteenth century, in tort law, there
was a principle of no liability without fault. But it changed later when the
principle of strict liability was introduced in Rylands v Fletcher in
1868.
Legal principles are
the stock in trade for justifying legal decisions. You cannot ground legal
principles in the doctrine of precedents.
Cases matter and the
use of principles in cases is important, but these principles do not set a
precedent. This is a challenge that Dworkin presents. He argues that the
positivist theory of law is not simply incomplete, rather it is
misguided.
How might a positivist
respond to this argument?
Hart critiques
Dworkin’s theory of interpretation on two counts, particularly relating to the
idea of principles in relation to the rule of recognition. It was supposed to
be a two-part essay, but Hart died before he could write the second part.
1.
Dworkin is mistaken on two
points: (i) that the Rule of Recognition only validates rules, rather than general
standards (including principles). There is nothing special for rules. When
rules are mentioned, it means standards. Kelsen uses the term norm for them.
There is nothing special in the use of ‘rules’. There is no reason why the Rule
of Recognition has to be conceived in a restrictive sense. (ii) That the Rule
of Recognition must use pedigree tests for identification, rather than test
based on content (eg analogy to the doctrine of ultra vires). In Hart’s words, Dworkin’s ‘preoccupation with
constructive interpretation’ has led him into a ‘double error’: first, to the
belief that legal principles cannot be identified by their pedigree, and
secondly to the belief that a rule of recognition can only provide pedigree
criteria. Both these beliefs are mistaken; the first is so because there is
nothing in the non-conclusive character of principles nor in their other
features to preclude their identification by pedigree criteria.[6]
But there are two other
concerns lurking in Dworkin’s argument:
(a)
A principle is a standard
that is to be observed. Legal standards are worthwhile to be observed. They are
desirable. They are not arbitrary, e.g., a will must have two witnesses. Why
not three?
If legal principles are
based on morality or overlap with them, does this mean that the standard to be
used to identify them have to be moral? One argument is that if this is the
case, then it would lead to uncertainty. Hart says that there is no problem if
moral criterion is used. It does not matter that what criterion the officials
use. Hart uses inclusive positivism. The opposite is exclusive positivism,
which Raz uses.
(b)
If principles are
identified by some criteria, what is that criteria? Anyone who wants to defend
Hart must answer this question.
2.
Dworkin is right in stating
that the Rule of Recognition cannot accommodate legal principles, but that
merely requires a modification, rather than a rejection of the positivist view
of law.
Legal standard covers
(i) rules identified by the Rule of Recognition, valid legal rules. Valid norm
is one that ought to be obeyed. Kelsen has a distinctive account of law. Raz
synthesises Hart and Kelsen. He combines Hart’s view with Kelsen’s idea of
normativity. He combines it with the idea of authority. (ii) The idea here is
that there are other standards accepted by officials as binding on them in
determining legal rights and duties. The Rule of Recognition is simply accepted
by officials. The officials have an internal point of view, a critical
reflective attitude towards law.[7]
All officials accept that
statutes are law. But even this is not uncontroversial. Dworkin argues that
there is a type of consensus, but it is not the type Hart mentions. If
something is judicial custom, how can an individual judge deny this? It makes it
very unclear that how legal principle operates.
4.
Legal Anti-Positivism: Hard Cases
Dworkin’s Law’s Empire — the view termed as
interpretivism
For Dworkin, law is an
interpretative process. It is an interpretation whose end goal is to show the
law in its best light. Dworkin’s ‘Hard cases’ is a long and interesting
article. It is a prelude to his book the ‘Law’s
Empire’.
Hard case is a
difficult case which is not covered by the law. In hard cases, the law is unclear,
controversial or unsettled. One way to resolve a hard case is to provide a
theory of adjudication. How to apply the law? Theory of law provides the
material and theory of adjudication guides how that material is applied.
Dworkin argues that this is an artificial distinction. At the end of the day,
you have to think about how to apply the law.
A.
Dworkin states that where
there is a hard case, judges act as deputy legislators. This action is in
substance and not in style.
B.
It is important to
distinguish between two types of arguments supporting a political decision.
Political decision is a decision by a political institution. These two types of
arguments are: (i) Argument of policy, e.g., improving national defence or
improving environment, and (ii) Argument of principles, which involves respecting
or securing individual rights.
Legislature will use
both types of arguments. If courts were deputy legislators, then they should
apply both types of arguments. But in hard cases, a decision is generated by
arguments of principles, not by arguments of policy. Even the UK Supreme Court
(before House of Lords) did not take decisions as a legislature does. However,
judicial decisions in hard cases are not generated by arguments of policy, but
by arguments of principle.
C.
Dworkin has three arguments
in favour of this view of adjudication:
a)
Legitimacy: judges, unlike legislation, lack the democratic
legitimacy to make law. Courts do not have legitimacy to make law. Therefore,
their decisions should be based on principles, and not on policy arguments.
D.
Even in hard cases, courts try to apply the law in order to
determine rights of parties. Now a legal right is an ‘institutional’ right—law
is an institutional practice, and judges have to consider the character of the
institution in making decisions.
Take an example of
games. You have to accept the rules of the game to play it. For instance, chess
is a game of intelligent skills. There might be other games of chance. You have
to follow the rules of chess to play it. An umpire in cricket has to apply the
rules of cricket to declare a player out irrespective his personal liking or
disliking of a player. Similarly, judicial decisions must be consistent with
the decisions in the past. Courts are not simply looking at the existing laws,
they are looking into the principles that justify the existing laws.
Dworkin’s view shifts
the focus on principles underneath the law. The focus of his theory is upon the
principles which are applied in making judicial decisions.
E.
Dworkin argues that if you
look at the common law reasoning, precedents have ‘gravitational force’. The
precedents are taken to be relevant to situations that fall outside the direct
scope of the decision. Why we choose some cases as similar to others? Treating
like cases alike is acting in a way that is consistent in substance with acts
in the past.
Law can be an
interpretative process in the best way through its ‘integrity’. Law must have
consistency; it should not be based on checkerboard solutions on whimsical
basis. Law must speak with a single voice in a principled and coherent manner.
Ideally courts decide
hard cases in terms of the existing law i.e. statutes and precedents. But some
decisions are treated as anomalous which apply on their facts. This effectively
means that such decisions are wrong.
Dworkin’s theory fits
into the legal practice and justifies the practice. That is why it is desirable
that decisions should be made in this way. The role of courts is to apply the
law. Courts do that in a subtle way. Some decisions are wrong. Dworkin argues
that his theory helps demarcate wrong decisions which are inconsistent.
F.
Dworkin goes further than
merely giving a ‘theory of adjudication’ of ‘how courts do and should decide
cases’. He introduces the figure of a superhuman judge—Hercules—who is able to
decide cases unerringly considering the totality of law and exercising unerring
moral judgment to reconcile principles. According to Dworkin, the law on some
matter is what Hercules would conclude it is.
Criticisms
1.
Dworkin does not give the
idea of law. In the end, it is merely a theory of adjudication because it
provides no explanation for the identification of the institutional decisions
on which it depends. Where does a rule of law come from? How do you explain the
legal materials? Where does Hercules get this material from? How do we decide
what is a statute or precedent? Theory of legislation and theory of adjudication
are two different things.
2.
It is a general theory of
law. How does this theory apply on a legal system that is immoral, e.g.,
Nazi German or apartheid South Africa? This is not Dworkin’s problem; this is a
problem with everyone. It is a challenge that what do you do if you come across
some law as a lawyer or judge that is immoral, e.g., death penalty.
3.
It needs to be answered
whether the actual law would be the same as the ideal law of Hercules?
5.
The Natural Law Tradition
1.
Natural law tradition emphasises that law has an inherently moral dimension.
Aquinas argued that a
morally unjust law is not law. But we know as a matter of fact that many
morally unjust laws are actual laws.
A good way to look at
the natural law is to contrast it with positivist account of law. Law is a
social and cultural practice. What distinguishes legal positivism is its
assertion that law is exclusively a matter of social fact. Finnis would agree
that law is a social practice but not a social fact. This leads to two
derivative theses:
A. The validity
of individual laws depends upon their sources alone, not upon their merits. Please
note that there are nuances within positivism such as inclusive and exclusive
schools; and
Rejection of (A) is
described as anti-positivism: Dworkin’s interpretivism is described as anti-positivism.
Rejection of (B) is natural law.
2. Objections to the idea that law could be linked
to morality
Objection 1
Does it not depend upon
the content of the legal system that some laws are good while others are bad?
You may say that law and morality are linked except in a contingent way. There
is no inherent link but a contingent one. Sometimes they overlap and other
times they do not. The aim of law could be to achieve some morally valuable end,
e.g., to promote the common good of the community, even if all legal systems
fall short of this.
It is not simply the
content of legal system that matters. There are some intrinsic points which are
morally desirable. Does the law have some basic moral functions? Legal
positivists claim that law is a complex system. Think about a hospital. It is a
complex. There are many people who work there. It is a complex social
organisation. Its function is to alleviate ill health and disease. It is not
simply a complex organisation. It has a function and you cannot understand it
unless you understand its function. At some hospitals, there is a wide scale
corruption. The function of a hospital is morally desirable. Similarly, it is
not merely a question of content of law when we describe a legal system. You
have to ask what is the function of law?
Objection 2
Morality is a matter of
opinion, but law is a social practice. How can they be linked?
I. Morality is not just a matter of
opinion. Bentham, Finnis and Gardner do not think that morality is simply a
matter of opinion. Raz is a moral pluralist. Not everything that exists has an
empirical realty. Take the example of promises. If
morality is a matter of opinion, then promise has no value.
II. Even if morality were just a
matter of opinion, this does not exclude there being a conceptual link between
law and morality.
3. There are also negative
points. What is the positive reason for thinking about some connection?
Firstly, there is a
shared vocabulary. We talk about moral rights and moral wrongs. You do not find
this similarity with other phenomenon such as language. We do not say that you
have a duty to follow grammatical rules. Secondly, there is a common content
between law and morality. Thirdly, there is centrality of justice. Both law and
morality regard justice as the central point.
It is commonplace in
legal systems that officials assert that everyone is morally obligated to obey
the law, whether or not they agree with its content.
4. The function of law
Legal positivists claim
that there are various functions of law, such as it regulates behaviour, provides
facilities for private arrangement, resolves disputes and channels resources. The
overriding function is guidance of human conduct. This does not have an
inherent moral value. Law is only an instrument to guide human conduct.
5. According to Finnis
the basic function of law is to co-ordinate social conduct. For example, we
have to choose which side of the road to drive: right or left? This is a
‘coordination problem’. Both options are equally good as long as everyone
follows the same rule to drive either right- or left-hand side.
There are essentially
two methods to achieve coordination, either by unanimity or authority.
Unanimity is difficult to achieve. We need authority to impose choice of the
majority. If you have a dissenting minority, they can easily wreck the
authority. This is a common phenomenon in failed societies. You need authority
in order to solve the coordination problem. Law helps resolving coordination
problems like allocation of property rights. Therefore, law is the directive of
a body with authority over an entire community.
Legal positivists agree
with the above proposition. But mere fact that there is a coordination problem
does not entail that something is morally desirable.
Finnis argues that coordination
is necessary for the realization of ‘common good’ of the community:
1.
The common good, the good of life in community and the good of the
members of the community, cannot be realised without coordinating the conduct
of the members of the community.
When you put the
problem of coordination with common good, you see how law fits in. The idea
here is that pursuit of common good is the proper function of law. We have
hospitals to heal sick and unhealthy. Similarly, the function of law is to
pursue common good.
Finnis argues that we cannot
state law without describing its purpose. According to him, purpose of law is
objectively justifiable. Pursuit of law is a point in which one’s legal
obligation becomes a moral obligation. This is the focal point of law
where the legal obligation equates with the moral obligation. Only at this
point the society will be just because everyone will be conscious morally. It
is the common good of society and it is an aspiration which the law should work
towards.
Finnis agrees with Hart
that law is a complex system. He contends that Hart’s theory of law presents an
incomplete picture of law. In order to complete the picture, you need to
understand that law exists to promote common good. Even the most corrupt states
dress themselves up in these terms. They will claim that they are ruling for
the good of the community.
Criticisms of Finnis’
Legal Theory
There are two obvious
criticisms:
[1] John Finnis, Natural Law and
Natural Rights (2nd edn, OUP, 2011) 1.
[1] John Finnis, Natural Law and
Natural Rights (2nd edn, OUP, 2011) 1.
[2] There is a diversity of opinions within legal positivists.
Two main categories are inclusive and exclusive positivists with respect to
their take on the relationship between law and morality. The former recognises
the overlap between the two while the latter denies it.
[3] Bentham’s conception recognizes moral sanctions. Bentham
and Austin had different ideas on sovereign. Bentham’s ideas are subtler than
Austin and hence less prone to criticism.
[4] Dworkin, RM, ‘The Model of Rules’ (1967) 35 The University
of Chicago Law Review 14, 23.
[5] Ibid, 41-42.
[6] HLA
Hart, The Concept
of Law (2nd
edn OUP, 1997) Postscript 264.
[7] J Raz, ‘Legal Principles and the Limits of Law’ (1972) 81 The
Yale Law Journal 823.
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