“What are the major strengths and weakness of Dworkin’s theory of law as compared to a positivist or natural law perspective? ” Discuss. Arguably one of the most influential legal theorists of the 20th century, Ronald Dworkin’s dealings with law’s interpretation and integrity has lead to inevitable contradictions with that of positivist ideology, with his work essentially revitalising a method of thinking that had long been considered dead and buried.
Perhaps most notoriously, Dworkin combated the positivist theory of his former teacher and predecessor as Professor of Jurisprudence at Oxford University, H. L. A. Hart. When comparing the two, it is apparent that Dworkin and Hart disagree on a plethora of issues, however there exist several disagreements that can be noted as fundamental. Since the work of Dworkin deals with the criticism of positivists such as Hart, to appreciate Dworkin’s arguments, it is thus necessary to obtain some background information so as to understand what it is that Dworkin is actually criticising.
H. L. A Hart was a prominent figure in legal positivism and moved the theory in a somewhat new direction, away from the founding modern ideology created by the likes of Austin and his “Command theory”, yet continued to insist on the importance of the separation of law from morality. Hart stated that law comprises of rules which can be broken down into two branches: primary rules which impose duties, and secondary rules, which include ways of asserting power so as to enforce and regulate the primary rules.
The other fundamental notion towards Hart’s theory is the idea of “open texture”. By this, Hart believes that when certain cases arise in which there is no precedent present to give direction to an existing rule of law, judges need to exercise their discretion in areas of penumbra. It is well known that when considering Dworkin, there remains no clear distinction between his political and legal theory due to the fact he integrates moral problems associated with politics into his legal theory itself.
It seems that Dworkin proposes a sort of “middle way” between positivism and natural law theory. This idea has been conceptualised due to the fact that despite heavy criticisms of positivism and Hart, Dworkin remains distinct from Natural law theorists as he doesn’t support the idea of an objective moral order. Thus, the notion of Dworkin’s Third Theory of Law was created. Dworkin’s theory stemmed from criticisms of Hart on two fundamental levels.
Firstly, Dworkin fiercely objects the notion that law consists only of rules and that there are numerous other factors to be considered, going on to state, ‘the law of a community consists not simply in the discrete statutes and rules that its officials enact but in the general principles of justice and fairness that these statues and rules, taken together, presuppose by way of implicit justification’. Secondly, Dworkin further denies Hart’s view that courts have discretion to decide difficult or “hard” cases by making new law, essentially making decisions retrospectively.
Dworkin believes that within every hard case lies an objectively correct answer that is inherently present within pre-existing law. As such, Dworkin believes that since judges are bound by law to find the objectively correct answer to cases via the relevant issues of law, it is apparent that judges and courts blatantly lack the discretion to simply conjure up new law so as to resolve a hard case. Nevertheless, he argues that there exist numerous standards and methods that judges should be able to use when resolving hard cases.
Dworkin introduces the concept of ‘principles’ which exist entirely separately from rules. When a rule applies to a case, there is no discrepancy, and they serve to take on an “all-or-nothing” approach. He describes the difference between legal principles and legal rules as a ‘logical distinction’. Principles however, despite being applicable to the case, simply provide reasoning for the judge so that the case can be decided a certain way. In this sense, the principle becomes a determining factor, but does not necessarily determine the decision.
As such, it is possible that numerous conflicting principles may exist in the one scenario. Dworkin even goes further by introducing the concept of policy defining a policy as ‘that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community’. The famous US decision of Riggs v Palmer serves to illustrate a considerable strength in Dworkin’s argument concerning rules and principles. The New York court had to decide a case to determine whether a grandson who poisoned his randfather to obtain his inheritance was in fact able to collect such an inheritance. At the time, there existed no statute or law that invalidated his claim as a beneficiary due to his involvement in the murder. Furthermore, the applicable legal rule seemed to be that legacies contained in legally valid testamentary dispositions are to be guaranteed by law in accordance with the wishes of the testator. According to Hart, the court should, in this situation, be decided upon pre-existing law.
Yet despite this, the court majority found that the grandson could not inherit, instead appealing to moral reasoning by citing the principle that no one should be able to profit from ones crimes. A similar decision based on principle was handed down 70 years later in the case of Henningsen v Bloomfield Motors Inc. As a result of these cases, Dworkin is able to argue that in addition to rules established via statute, principles too are valuable components of the law. While not binding, these principles are sufficient enough so as to modify statutes.
He highlighted that even the dissenting judge in Riggs did so based on the principle “one should not be punished beyond the ways specified in the statute”. Such cases illustrate Dworkin’s idea that when deciding cases, judges need to broaden their search so as to encompass more than just the rules so as to find the correct answer. These principles serve as being part of the community’s moral and political culture which is constantly evolving, existing independently from the enacting legal institutions.
Despite Dworkin’s popular ideas and seeming victories in cases such as Riggs, there exists a wide range of criticism focused on revealing the weaknesses of his theory. Although it seems Hart never responded to Dworkin’s criticisms directly, there have been numerous positivist responses focusing on a wide range of issues. In most cases, these responses seem to agree with Dworkin in part, but not in its entirety.
For example, some positivists accepted Dworkin’s characterization of legal positivism but rejected his explanation as to why legal principles are inherent within the law, while others could conceptualise Dworkin’s explanation for the legality of principles, but rejected his characterization of legal positivism. Most legal positivists however have taken the later approach and sought to effectively deflect Dworkin’s critique by saying his classification of positivism was flawed.
This is due to the fact that Dworkin indicates positivism as being centralized on a pedigree basis, a belief that wasn’t supported by Hart himself but which many other positivists believe. Such a view concedes the fact that, even if Dworkin is correct and courts are obligated to apply principles that aren’t supported by existing law, positivism would be unaffected. However, it seems that these rebuttals and their inability to answer Dworkin’s criticisms effectively serve only to expose further weakness within legal positivism.
Dworkin’s ideas in “The Model of Rules I” were heavily criticised by the argument of his lack of ability to appropriately characterize positivism and as a result, became his arguments became deflated. Thus, his renewed critique in “The Model of Rules II” which were fully explored in his book “Law’s Empire” highlights Dworkin’s attempt to demonstrate that legal positivists cannot account for certain disagreements that occur between legal participants when concerning legal interpretation. Dworkin claimed that moral disputes were the only plausible explanation for how such disagreements were possible.
This notion supported the idea that law is grounded in consideration of political morality, contrary to the belief of legal positivists. Whereas Dworkin’s first critique attempts to exploit the fact that judges incorporate morals into their decisions, his second critique goes further, emphasising the point that judges often disagree with each other about what the grounds of law actually are. Thus, since positivism is of the view that the law is the law, it is incapable of explaining such disagreements where the grounds of the law are fixed by agreement.
It was Hart’s view that if there existed more than one decision with pre-existing law, then the court will be inclined to create new law in deciding which of the decisions to adopt. Dworkin, however, denies such discretion. While I believe that Dworkin is correct with his idea that there exists a greater standard than just rules when it comes to interpreting and deciding cases, I don’t think that Hart’s idea that there will be times when the existing law fails to provide a clear, correct decision is incorrect. My only concern is that when there is no clear rule and the potential for a ultitude of applying principles arise, is not the act of choosing which principle to apply an act of discretion? Furthermore, principles aren’t always universal nor are there ever solely one moral standard held in our society. As such, I don’t believe there is always a correct answer to be found. Nevertheless, it is of great credit to Dworkin that he has been able to formulate such an argument that has been able to transform the concept of legal positivism entirely. Despite the numerous criticisms of Dworkin, I feel that none that I have read seem too have adequately dismissed his thinking and concepts.
Most of the positivist criticisms seem to be criticisms (and often inadequate ones at that) of the criticisms themselves rather than Dworkin’s theories, and I find Dworkin’s theories far more compelling. Nevertheless, I do acknowledge the imperfections in Dworkin’s ideas. He seems to present the notion of a moral utopia, where the answer to everything is clear and always correct. However I fail to see this in a realistic sens present in our current society today.