Assess the Validity of Dworkin’s Criticisms Towards Positivism free essay sample

DworkinCritically assess the validity of Dworkin’s criticisms towards positivism and whether natural law theory may itself be disputed. â€Å"Positivism is a model of and for a system of rules, and its central notion of a single fundamental test for law forces us to miss the important standards that are rules. † explains Dworkin on his attack on positivism. It is argued, by Dworkin, that both legal positivism and natural law theories are in reality searching for an answer to the question ‘what is law? A  fundamental question and challenge towards the debate and critique of the natural lawyer and positivist. However Dworkin directs towards another issue, a more specific question of understanding law, gained by asking ‘how do judges find the law’2. This directs attention towards ‘hard cases’3, a theory provided by legal positivism. It is explained by Dworkin that judges make use of standards that do not function as a system of rules, as opposed to what Hart would argue, but operate differently as other sorts of standards4. Hart, a positivist theorist, would argue that in the majority of cases rules will be clear, however, at some point, they will become indeterminate and unclear5. This is because they have what Hart calls, an ‘open texture’, and a defect inherent in Dworkin, R. (1997) Taking Rights Seriously, London: Duckworth. At p22 Morrison, W. (1997) Jurisprudence: from the Greeks to Post-Modernism, London: Cavendish. At p422 3 A concept where the law seems to run out, they arise where it is not clear what the legal answer is, or where by the existing rules of law provide no answer. Riddall, J. He distinguishes between these two to explain that policies attempt to ‘secure the community goal’ where as principles ‘justify political decisions’ by showing that the decision respects or secures some individual or group right. 8 This goal is set out to generally improve the community. 9 In nature principles, unlike Harts rules, can be applied or not applied without affecting there existence, a court will draw on these standards in order to reach a decision on the ‘hard case’10. With this submission, it is in disrepute with Hart’s notion of the ‘Rule of Recognition’. For instance, officials in Nazi Germany obeyed Hitler’s commands as law, only out of fear. Dworkin compares both Harts and John Austin’s11 theory to say that there would be no difference between a group of people accepting a rule of recognition and simply falling into a self-conscious pattern of obedience out of fear12. Dworkin continues to explain that if acceptance requires more than obedience, then there was no law in Nazi Germany. He thus believes that it is inadequate, notably as Ibid Lectures in Jurisprudence (ed. Cambell), p. 219; post, 1421, quoted in Freeman, M. D. A. Lloyd’s Introduction to Jurisprudence, 7th ed. , London: Sweet Maxwell. At p1390 8 Supra, n , no1 at p82 9 Riddall, J. G. (1999) Jurisprudence, 2nd ed. , London: Butterworths. at p101 10 Wacks, R. (1999) Jurisprudence, 5th ed. , London: Blackstones Press. At p120 11 A theory that a proposition of law is true within a particular political society if it correctly reports the past command of the sovereign power. 12 Dworkin, R. (1986) Law’s Empire, Oxford: Hart Publishing. At p35 7 6 Page 2 of 13 20325011 there is no rule of recognition that distinguishes between legal and moral principles. Therefore Hart’s theory does not capture how lawyers find law and therefore lacks a justificatory force. 14 It is explained, furthermore, that if two rules conflict, both cannot survive one must be incorrect. Principles are different; they do not apply to all or nothing but apply together as they have weight, thus balances for the person’s rights15. It is important to note that the word ‘principle’ is not used in the sense that it requires compliance with a standard regardless of the consequences16, Dworkin uses it to mean ‘propositions that describe rights’17. His challenge continues; the idea to separate law and morality is incorrect, not so far that law should be based purely on morality18. For instance, the infamous case of Donoghue v Stevenson19, the biblical ‘principle’ not to harm your neighbour effectively becomes a legal principle, therefore morality is inherent in law. Lord Atkin has constructively developed a principle, the neighbour principle, to be applied in future arising situations20. Furthermore, the case of Riggs v Palmer21 forms the basis of Dworkins illustration on how legal principles work where the judges ‘found’ and applied an equitable principle Dworkin argues that this decision demonstrates that in addition to rules, the law includes principles23. The answer was already inherent in society, a substantial belief by Dworkin, that there is a right answer to every legal question, thus not acting retrospectively opposed to what Hart believed that there is no law covering a particular gap or situation24. According to Dworkin, there in fact lie principles. Hart would state that judges must use there discretion in deciding whether a particular case comes within a rule or not, by way of statutory interpretation25. Hart continues to explain that there is no possibility of treating the question raised by the various cases as if there were only one right answer, a solid belief by Dworkin that there is a right answer26. However, Dworkin argues against this approach which allows for a judge to make a policy decision not based on law in ‘hard cases’. He argues that by Hart seeing law soles based on a system of rules; he fails to take account of general principles27. In contrast, Dworkin challenges that the judge does not revert to a policy and act as a law maker; instead the judge applies legal principles to bring about a correct right answer based on law. Dworkins’ article, Hard Cases, continues to say that judges must apply a principle of, what he calls ‘articulate consistency’ in determining the applicability of statutes and Doherty, M. (2005) Jurisprudence Textbook: the Philosophy of Law, 4th ed. , London: Old Bailey Press. At p228 23 Wacks, R. (1999) Jurisprudence, 5th ed. , London: Blackstones Press. At p123 24 Supra, n , no 10 at p228 25 Supra, n , no5 . At p158 26 The concept of Law, at p132 quoted in Freeman, M. D. A. (2001) Lloyd’s Introduction to Jurisprudence, 7th ed. , London: Sweet Maxwell. He uses the word ‘consistency’ to refer to the application of the principle relied upon, not the application of the rule. There was no rule in Riggs v Palmer30, only a principle that a person should not benefit from their crime31. Besides Dworkin sees the law as a seamless web in which there is always a uniquely right answer and strongly rejects Hart’s view that there are ‘penumbral areas of doubt’ within which a judge can exercise free discretion32. This is opposed to Dworkins’ strong belief that judges do not have a wide discretion when the rules seem to run out33. This directs attention towards the fictional judge developed by Dworkin, Hercules J. He is a judge with superhuman skill, learning, patience and acumen34 used to illustrate an idealistic process, fundamentally essential to his construction35. This judge is expected to construct a scheme of abstract and concrete principles that provides a coherent justification for all common law precedents and is intended to point the way to the correct legal answer36. He will decide on a theory of law which best coheres with his community. Arguably, for that reason, Hercules is deciding cases in the light of what already exists. Dworkin says that we can assume that Hercules accepts most of the settled rules of his jurisdiction, laying down the characteristics of law. 37 Supra, n , no 2 at p426 (1889) 22 NE 188 31 Supra, n , no 1 at p88 32 Supra, n , no 10 at p225 33 Waldron, J. (2009) ‘Refining the question about judges’ moral capacity’. International Journal of Constitutional Law. 69-82 34 Supra, n , no 1 at p105 and Freeman, M. D. A. (2001) Lloyd’s Introduction to Jurisprudence, 7th ed. However, Hercules is criticised on the grounds that he is a mythical being, no judge can behave in this Utopian style40, thus perhaps lacking ecological validity41. Some have gone so far as to label him a fraud, an assumption that he has discovered the right answer to a hard case, arrogantly assuming his conception of the law is correct. 42 However in Laws Empire, based on theoretical disagreements in law, Dworkin responds explaining that Hercules does not pretend that he has found the ‘right’ answer but he has only discovered what it should be, a significant difference to his terminology43. This then brings light to Dworkins’ ‘one right answer’ theory, which must not be assumed by this rather assumptive statement. As already briefly explored, it is the proposition that there is only one single uniquely ‘right’ answer to all legal questions44. He agrees that through judicial precedent, judges agree that earlier decisions have a particular gravitational force45. A judge will rarely have the independence to be inconsistent with this notion by the fact that they acknowledge that they are bound by a hierarchy of previous judicial decisions46. When a judge Supra, n , no 9 At p94 Ibid at p94 40 Supra, n , no17 . At p131. The term Utopian is a name for an ideal community or society. 41 A psychological term relating to the applicability of a matter to ‘real’ life. 42 Ibid commenting on that the theory travels badly. 43 Dworkin, R. (1986) Law’s Empire, Oxford: Hart Publishing. At p261 44 Sadurski, W. (2009) ‘Rights and moral reasoning: an unstated assumption a comment on Jeremy Waldrons Judges as moral reasoners’. International Journal of Constitutional Law. 25-42 45 Supra, n , no5 . At p167 46 Ibid at p168 39 38 Page 6 of 13 20325011 defines this precedent, only the arguments of principle are taken  into account to justify that principle47. Furthermore, in the light of this point, Dworkin continues his argument with the analogy of a chess game; perhaps not the most enthused of illustrations. In the course of the game one player is significantly distracted by the other player (named Tal) persistently smiling. Though this act may not be in breach of the ‘chess rule book’, Dworkin would argue that on an analysis of what the game of chess essentially entails, similar to how a judge should decide a hard case; psychological intimidation would have been deemed against the nature of the game48. The referee ought to find the one answer that best fits with the general practice of chess. Additionally, leading to another of Dworkins’ challenges, the rule already existing prior to the game, it does not act retrospectively. This term retrospection relates to that in hard cases judges have discretion to decide the outcome, making new law, consequently it acts retrospectively, and a defect in Dworkins’ conventionalist view of law49. However in the light of Dworkins’ view, a party claiming injustice through retrospection is in fact bound by a law that was already available to anyone, if sought in the proper way. The decision merely gave effect to this existential law. 50 It must now be considered where Dworkin himself fits in with either positivism or natural law. Officially, he is contemporary legal positivism’s harshest critic. It is verified from the above analysis and chapter one in Laws Empire that he is not a 47 48 Supra, n , no13 . At p28 Supra, n , no 17 at p125 49 Supra, n , no 19 at p99 50 Supra, n , no 9 at p107 Page 7 of 13 20325011 positivist in the sense that where the law seems to run out, the judge creates a new fitting law, termed as conventionalism, a strong rejection by Dworkin51. His connection with the ‘right answer theory’ may be said to tie with morality, if the right answer is the best fit, it is the best morally fit answer, it would not be the best fit answer, if it was immoral thus coinciding with natural law52. Like Fuller, Dworkin accepts that moral reasoning in an integral part of legal reasoning therefore morality is part of the law, though in Dworkins’ view it is not necessarily connected. Both theories argue that lawyers follow criteria that are not entirely factual but to some extent moral for deciding what propositions of law are true53. Continuing this exploration, Dworkin believes that the law and adjudication ought to comply with certain standards, notably those embodied in the phrase ‘Law as Integrity’, one of the three rival theories of law which Dworkin constructs and challenges54, again he seems to lean more towards natural law. However, Dworkin makes his position clear that he does not believe in higher principles above and outside the law, as an everlasting sovereign power. Instead he believes that justice has a merit in its own right. 55 On this basis Dworkin believes that adjudication ought to operate in compliance with the standards, and in his view not to the principles of God but to what is right. He does not link morality with the validity of law, this does not concern him. Thus he may rather be placed as a jurist who explores the nature of both illustrating an ideal Supra, n , no6 at p109 Simmonds, N. (2008) ‘Law as a Moral Idea’. Edinburgh Law Review. 150-153 53 Supra, n , no12 at p37 54 Freeman, M. D. A. (2001) Lloyd’s Introduction to Jurisprudence, 7th ed. He has merely shown that a sensible account of law would have a place for principles as well as rules57. This leads to further analysis, focussing now to the theory of ‘Law as Integrity’, a theory showing our legal practice at its best light58. Dworkin, though his term remains illusive, claims that it offers a plan for adjudication which points judges to use ‘integrity’ as a method for deciding cases. The theory explains that propositions of law are true if they follow the principles of justice, fairness and ‘procedural due process’ which provide the best constructive interpretation of the community’s legal practice59. As already seen Hercules acts with integrity and may be said to be a constructive interpreter of the laws written before him60. Integrity insists that legal claims are interpretive judgements and consequently rejects the question whether judges find or invent law61. This method essentially would instruct a judge to identify legal rights and duties, on an assumption that they are created by one author representing a community expressing a ‘coherent conception of justice and fairness’62. Dworkin argues that with this one author or separate entity, the judges can assume that the law is structured on coherent principles63. The judge, following integrity, would look for a principle that, according to Dworkin, ‘fits and justifies’64 a complex part of the legal practice. This, Supra, n , no 9 At p110 Supra, n , no 1 At p58 58 Supra, n , no 34 At p1396 59 Doherty, M. Therefore a society adopts integrity in order to justify its moral authority to assume and organise control of coercive force66. However positivism does not require judges to justify their decisions. In this way, positivism does not consider the law as being separate and independent. Instead the positivist would see the law as comprising a set of ‘discrete’ decisions, enabling a judge to exercise his discretion to amend it, contrary to what Dworkin argues67. Dworkin explains that the consistency that would be provided from integrity would entitle people to a coherent and ethical extension of past decisions. Positivism would deny this on the basis that it denies consistency in principle as a judicial virtue for ambiguous statutes and unclear precedents to try to achieve consistency68, a point which is emphasised by Hercules. Furthermore Dworkin believes that an adoption of an approach, whereby a judge ‘ought’ to operate in the society Dworkin thinks ‘ought’ to exist70, would protect against prejudice, dishonesty, and corruption whilst promoting participation in democracy71. However not all judges will come to the same conclusion. Even though they were seeking the correct answer, many may find a different route and therefore end in a different place. Concluding, Dworkin is the leading critic of positivism, and in particular, Harts own version of it. Dworkin believes that the law never runs out and that the answer is always there readily available if the matter is sought properly. He disagrees with Hart as he insists that at the point of where the law is incomplete, judges must use their discretion to reach a solution, a new law to fill in that gap75. His right answer theory attacks this largely on the basis that there are standards other than rules operative in our society. He challenges natural law as a particularly unpersuasive theory, an extreme theory that insists that law is dependant on morality and identical to justice76, as explored in this essay, Dworkin differs as he does not link morality with the validity of law. He is unconvinced with an everlasting sovereign and believes that justice has a merit in its own right. He is not a natural lawyer nor a positivist but rather a jurist, challenging and illustrating an ideal form for this process of adjudication77. â€Å"That is†¦what law is for us: for the people we want to be and the community we aim to have. Lloyd’s Introduction to Jurisprudence, 7th ed. , London: Sweet Maxwell. McCoubrey, H. White, N. D. (1999) Textbook on Jurisprudence, 3rd ed. , London Blackstone Press. Morrison, W. (1997) Jurisprudence: from the Greeks to Post-Modernism, London: Cavendish. Riddall, J. G. (1999) Jurisprudence, 2nd ed. , London: Butterworths. Wacks, R. (1999) Jurisprudence, 5th ed. , London: Blackstones Press. Journals Lester, A. (1993) ‘English Judges as Law Makers’ Public law 269-290 MacCormick, N (2008) ‘Our Knowledge of the Law: Objectivity and Practice in Legal Theory’ Edinburgh Law Review 150-153 Patterson, D. Dworkin on the semantics of legal and political concepts’ Oxford Journal of Legal Studies. 545-557 Sadurski, W. (2009) ‘Rights and moral reasoning: an unstated assumption a comment on Jeremy Waldrons Judges as moral reasoners’. International Journal of Constitutional Law. 25-42 Seims, M, M. (2008) ‘Legal originality’. Oxford Journal of Legal Studies. 147-164 Simmonds, N. (2008) ‘Law as a Moral Idea’.