Dworkin makes a Substantive Critique of Positivism
Dworkin was a student of HLA Hart at Oxford university. He captured Hart's interest by writing an essay that criticised his views on law and this was so convincing that a few years later Hart quit his job and appointed Dworkin as chair of jurisprudence in Oxford.
The key point characterising Dworkin's work on legal theory is that there is more than rules to law, there are also moral principles guiding the law (making the law moral substantively and not just procedurally as Lon Fuller expounds) and this is not addressed by traditional positivist accounts of law, especially Hart's.
Dworkin starts by explaining how he understands Hart's positivism in a clear and structured way, and then attacks it.
He explains that there are three main tenets of positivism and that all of these are wrong:
- Rules are identified by pedigree (source), not content
- Valid legal rules are exhaustive of the law (and there is nothing else).
- If there is no valid legal rule, there is no legal obligation (so principles cannot create obligations).
1. Rules are identified by pedigree, and not content.
- What is meant by this is that in order to see if a particular rule is law or not you have to look to its source - all that matters is where it came from and not if it is moral or good. If it ultimately stems from the rule of recognition then it is good law.
- Thus, if the Queen in Parliament passes a statute (the rule of recognition in the UK) which delegates power to a local council to decide whatever speed limit a small road in a remote village is, and that council decides it should be 500 miles per hour, then that speed limit is law even though it may not be moral or good. All that matters is that the law was created in the accepted way.
- Dworkin points out however that sometimes the rules run out and the judge has to use discretion in order to make a decision. When this happens he has to use legal principles instead instead of legal rules.
- What this means is that the rule of recognition becomes irrelevant (since its rules are no longer being used) and that the law is more than just legal rules (which are thus not exhaustive of the law).
Riggs v Palmer (1889)
- This is a very important New York Court of Appeals case that Dworkin uses as evidence for the law not only revolving around legal rules.
- A man kills his grandfather to get what was on his will because he was worried the grandfather would change his mind.
- The relevant statute did not mention murder as an exception to benefiting from the will.
- Following the legal rules, the son should have gotten his share from the will.
- However, the court decided instead to inject a moral principle that altered the legal rule.
''All laws as well as all contract may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to acquire property by his own crime."
The difference between rules and principles.
In Dworkin's essay, 'The Model of Rules', he explains the difference between the two.
- Principles are a matter weighing and balancing and so do not necessarily lead to a conclusion, they are always there influencing our decisions. Rules on the other hand either apply or do not: there will always be a concrete conclusion. Either the situation falls within the rule and its normal consequence occurs, or it does not fall within the rule and no such consequence occurs.
- Principles must be balanced against each other. They each have a weight dimension in relation to a particular situation and a judge must assess how much weight a particular principle has on a case-by-case basis. This is seen most transparently in human rights cases. For example, in a hate speech the principle of free speech in a democracy must be balanced against the need to respect everyone in a community. Rules do not have this dimension of weight and are not balanced against each other: either one applies or it doesn't.
Strong vs Weak Discretion
- Strong discretion is unconstrained discretion: one is totally free to do whatever he wants, even arbitrarily. Were this the type of discretion judges have when deciding on which moral principles to apply in a given case, and what weighting each should have, the judges could end up making terrible, and perhaps more importantly, unpredictable, decisions. Since this would greatly undermine Dworkin's concept of law he pushes hard to explain that judges have only a weak discretion when applying moral principles.
- Weak discretion is discretion within clear parameters: one has the power to choose but it is limited in some sort of way. When hiring a new employee an employer has discretion, but he is perhaps bound to search for the very best candidate, or to not make the decision on arbitrary factors such as race or gender. His discretion is therefore weak because it is guided and he will ultimately be accountable if he acts outside of his power.
- Dworkin argues that in a legal system judges are guided by already-existing moral principles and it is this that prevents them from acting arbitrarily and without constraint. To be clear, Dworkin believes that moral principles are already out there existing in the world, before any human with a legal title comes to apply it in law.
- In this sense judges 'discover' moral principles and do not simply invent them. This is why Dworkin's account is said to be based on objective morality.
- On top of this is the idea of 'institutional support'. Some of these moral principles (already existing in the world) also automatically apply to legal systems if the legal institution in question 'supports' it. Now, the precise meaning of 'support' is not provided by Dworkin, but what is clear is that he means for judges to decide whether or not a given moral principle has the institutional support to form part of that system.
Dworkin's Unique Role for Judges
- Dworkin believes that judges should not just be formalist lawyers that merely apply legal rules.
- He believes instead that they should be 'philosophy kings' that try to discover these objective moral principles and then assess whether they exist under a given legal system.
- However, he does not commit to any parameters for how judges should go about doing any of this:
"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". Model of Rules, p40.
The Response of Soft Positivism vs Hard Positivism
- As a result of Dworkin's critique, positivism changed in order to address the observation that legal principles also form part of legal systems.
- The fundamental position of positivism is that in every legal system there is some commonly recognised test for what law is (the rule of recognition) and the existence of legal principles does not change this.
- The soft positivist answer (like that of HLA Hart) to Dworkin is that principles can be recognised by the rule of recognition.There are so many ways in which rules encapsulate principles. For example, all the rules relating to unfair contract terms clearly base themselves in the principle of fairness in contracts - if a judge then applies this principle to contract law generally, he is still acting according to the rule of recognition, which is unambiguously in favour of such a principle applying to contracts. The basic view of the soft positivist is that rules and principles are not different in kind, just degree (rules providing a much stronger influence than principles). Both guide the application of law, and both can be accepted by the rule of recognition.
- The hard positivist answer (like that of Joseph Raz) to Dworkin is that principles are not legal standards but are simply used by judges in their discretion because, judges being human, must draw on moral principles when making decisions. Dworkin is right that the rule of recognition does not account for moral principles and this is not a problem since it does not need to. If the rule of recognition bestows upon judges a power of discretion, then whatever criteria the judges use (be it moral standard or otherwise) to make a decision does not form part of the law. Moral principles creeping into hard cases is therefore just a by-product of the discretion allowed to judges, and if we see a lot of them it is because human nature is to apply morality to decision-making.