Dworkin and the moral integrity of law
5.5 The assault on Dworkin
Dworkin’s writing has stimulated a vigorous debate in the literature.55 His ever-expand-ing group of detractors adopts a variety of standpoints from which to launch their assault upon what is a large, and occasionally a moving, target. Some criticizse the very interpre-tive project that is at the heart of the Dworkinian project. Scott Shapiro, for example, has suggested that it is a methodology that defeats the purpose of law:
Having to answer a series of moral questions is precisely the disease that the law aims to cure. Dworkinian legal interpretation thus ends up reinfecting the patient aft er the con-tagion has been neutralized.56
I have mentioned a number of these attacks above, some of the other more signifi cant onslaughts on the central features of Dworkin’s theory may briefl y be summarized under the following ten heads:
1. The attack on Hart
Professor Hart has described Dworkin’s claim that judges do not make law as a ‘noble dream’.57 In his posthumously published ‘postscript’ to the second edition of Th e Concept of Law,58 Hart sketches his defence against Dworkin. In particular, Hart rejects the charge that his theory is prey to the semantic sting. He responds to this allegation by denying that he ever held ‘the mistaken idea that if the criteria for the identifi cation of the grounds of law were not uncontroversially fi xed, “law” would mean diff erent things to diff erent people’.59 Nor does he accept that Dworkin’s criticism that his theory precludes a non-participant, external observer from describing how participants experience the law from an internal point of view.
Th is internal standpoint, Hart now appears to accept, includes a belief that there may be moral reasons for conforming to the law, and a moral justifi cation for coercion.60 More signifi cantly, Hart is now willing to acknowledge that the rule of recognition ‘may
54 Dworkin, op cit, 423.
55 For a lively, if iconoclastic, critique of the main elements of the Dworkinian enterprise, see Allan C Hutchinson, ‘Indiana Dworkin and Law’s Empire’ (1987) 96 Yale Law Journal 637. I have already mentioned that you should see the essays (and Dworkin’s characteristically trenchant response to his critics) in Scott Hershowitz (ed), Exploring Law’s Empire: Th e Jurisprudence of Ronald Dworkin.
56 Scott J Shapiro, Legality (Cambridge, Mass, and London: Belknap Press of Harvard University Press, 2011).
57 HLA Hart, ‘American Jurisprudence through English Eyes: Th e Nightmare and the Noble Dream’ in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 123.
58 HLA Hart, Th e Concept of Law, 2nd edn (Oxford: Clarendon Press, 1994). See the essays collected in Jules Coleman (ed), Hart’s Postscript: Essays on the Postscript to Th e Concept of Law (Oxford: Oxford University Press, 2001).
59 Th e Concept of Law, 2nd edn, 246. 60 Ibid, 243.
Having to answer a series of moral questions is precisely the disease that the law aims to cure. Dworkinian legal interpretation thus ends up reinfecting the patient aft er the con-tagion has been neutralized.56
incorporate as criteria of legal validity conformity with moral principles or substantive values’.61 Th is concession situates Hart, posthumously, in the soft positivist camp.62
Other critics have attacked Dworkin’s model in three main ways:
(a) Rules may incorporate principles. Some critics (notably MacCormick and Sartorius) have sought to rescue Hart’s model of rules by arguing that principles interact with rules, underpinning and qualifying them. Sartorius (while otherwise adopt-ing Dworkin’s view in this respect) argues that by ‘loosenadopt-ing up a bit’, Hart’s rule of recognition, to take account of ‘general results’, it would provide an authorita-tive standard by which to identify principles as well as rules.63
(b) Principles are not ‘principles’. Raz upbraids Dworkin for his failure to distinguish between statements ‘of law’ and statements ‘about the law’. He claims that when we refer generally to a body of legal rules without specifying their detailed content, these are normally statements of principle, rather than statements of ‘principle’ in the Dworkinian sense. For example, if I state that the law recognizes freedom of speech, I mean that, apart from the limitations on expression contained in the law of libel, laws protecting national security, controlling obscenity, prohibiting breach of confi dence, and so on, the law allows a high degree of freedom. Th is statement is a summary ref-erence to a whole range of laws, not a statement of the content of a single law. You, on the other hand, might describe the position by referring to a specifi c law that requires the courts to protect freedom of speech in all cases, including those not governed by specifi c rules. Your statement, says Raz, is a statement of the content of one particu-lar law and is a ‘principle’ in the Dworkinian sense, for it imposes an obligation and guides the actions of courts.64 If this is correct, it undermines Dworkin’s thesis that judges decide hard cases by reference to ‘principles’ in his sense of the term.
(c) Judges do have a discretion. Dworkin acknowledges that judges have a ‘weak’ dis-cretion (their decision determines the outcome of a hard case and they have to apply their judgment). But a number of critics reject the idea that judges lack a ‘strong’
discretion in the sense of having a choice between a decision X and decision Y.
Some point to the ambiguity of the very concept of discretion,65 while others (like Professor Hart) adopt the ‘unexciting’ middle ground that sometimes judges do and sometimes they don’t exercise a discretion. Joseph Raz has even suggested that Dworkin’s views do not signifi cantly diff er from Hart’s.66 Moreover, Raz argues that Dworkin has misstated the distinction between rules and principles.67 Raz expounds his own analysis of legal principles, concluding that, far from excluding judicial discretion, as Dworkin claims, they presume its existence and direct it.
61 Ibid, 250.
62 See Brian Leiter, ‘Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis’ in Coleman (ed), Hart’s Postscript: Essays on the Postscript to Th e Concept of Law, 355. Kramer argues (convincingly, I think) that Hart’s ‘wholesale capitulation’ was unwise. See Matthew H Kramer, ‘Coming to Grips with the Law’ (1999) 5 Legal Th eory 171, 192. See too Kramer, In Defence of Legal Positivism: Law Without Trimmings (Oxford: University Press, 1999) 153–61. In particular, Kramer seeks to establish that Dworkin is unable to establish (as he did in Law’s Empire) that soft positivism, by virtue of accepting that many legal norms may be identifi ed by reference to a moral test, embraces ‘moral realism’. (See 2.9 on this theory.) For Dworkin’s analysis of objective morality, see R Dworkin, ‘Objectivity and Truth: You’d Better Believe It’ (1996) 25 Philosophy and Public Aff airs 87.
63 Individual Conduct and Social Norms, 192.
64 J Raz, ‘Legal Principles and the Limits of Law’ (1972) 81 Yale Law Journal 823, 828.
65 See B Hoff master, ‘Understanding Judicial Discretion’ (1982) 1 Law and Philosophy 21.
66 See J Raz, ‘Dworkin: A New Link in the Chain’ (1986) 74 California Law Review 1103, 1115.
67 J Raz, ‘Legal Principles and the Limits of Law’ (1972) 81 Yale Law Journal 823.
(d) Judges do rely on policy. Several critics (notably Professor Greenawalt) deny Dworkin’s claim that judges characteristically decide hard cases on grounds of principle rather than policy. Th e strongest plank of this argument is the proposi-tion that judges give weight to the interests of third parties (ie, persons who are not parties to the litigation in issue) in hard cases. For instance, Greenawalt argues that certain conduct might be legally justifi ed because the contrary conduct would have violated or risked damage to the established legal rights of non-parties. Th us, the driver of a car who swerves to avoid a baby may argue that if he had not swerved he would have violated the baby’s right. On the other hand, it might be argued that certain conduct was unjustifi ed because it violated, or risked damage to, the rights of third parties.68 Th is argument also raises doubts about Dworkin’s distinction between arguments of principle and arguments of policy.
(e) Th ere is no ‘community morality’. Several critics have questioned Dworkin’s assumption that there is, within every legal community, a morality that breathes life into the law. Others have questioned Dworkin’s very notion of ‘community’. It has fallen prey to a communitarian (see 10.3.1) attack on the ground that, instead of providing fraternity, community produces a sense of ‘self identity’.69 Th e toler-ance that Dworkin prescribes for a community, Michael Sandel appears to believe, would destroy the homogeneity necessary to engender this sense of self-identity.
Dworkin rejects this view, but other doubts remain about his nebulous notion of community that seems better suited to describe friendship than society that is, in the last resort, based on coercion. As Michael Freeman asks:
[I]s Dworkin committed to the view that a state which has to enforce its will upon recalcitrant citizens is not a ‘true’ community? It would seem that a state which had to enforce laws by means of coercion was undercutting its own foundation which rests on a relationship where there is obligation. But this is to assume that Dworkin has adequately accounted for associative obligations within groups such as family and friends. Do these really rest on reciprocity? Is this how members of a family or friends conceive of obligation? Can love or altruism be reduced to reciprocal obli-gation? Surely not. And surely there are associative obligations where reciprocity is never in question? Can Dworkin explain the bonds which unite the Irish (think of St Patrick’s Day parades in continents far from Ireland . . .)?70
Do you think it is possible for you to support your political community in the way you support your football team?
(f) He misconstrues the rule of recognition. For Dworkin, of course, Hart’s rule of recognition cannot include substantive moral standards among its criteria of law. Th is has been vigorously denied, as we have seen, by so-called soft positivists,71 and even by Hart himself. Kramer identifi es another failure by Dworkin in respect of the rule of recognition. He charges him with misunder-standing the essential nature and purpose of Hart’s rule of recognition. Th is
68 ‘Policy, Rights, and Judicial Decision’ in M Cohen (ed), Ronald Dworkin and Contemporary Jurisprudence, (London: Duckworth, 1984) 88–118, at 97.
69 Michael Sandel, Liberalism and the Limits of Justice, 2nd edn (Cambridge: Cambridge University Press, 1998).
70 MDA Freeman (ed), Lloyd’s Introduction to Jurisprudence, 8th edn (London: Sweet & Maxwell, 2008), 732.
71 See, in particular, WJ Waluchow, Inclusive Legal Positivism (Oxford: Clarendon Press, 1994).
[I]s Dworkin committed to the view that a state which has to enforce its will upon recalcitrant citizens is not a ‘true’ community? It would seem that a state which had to enforce laws by means of coercion was undercutting its own foundation which rests on a relationship where there is obligation. But this is to assume that Dworkin has adequately accounted for associative obligations within groups such as family and friends. Do these really rest on reciprocity? Is this how members of a family or friends conceive of obligation? Can love or altruism be reduced to reciprocal obli-gation? Surely not. And surely there are associative obligations where reciprocity is never in question? Can Dworkin explain the bonds which unite the Irish (think of St Patrick’s Day parades in continents far from Ireland . . .)?70
arises mainly through Dworkin’s error in overlooking the fact that, in both hard and easy cases, judges share a high degree of common understanding about the criteria that determine whether a rule is indeed a legal rule. In other words, in attacking the rule of recognition for neglecting the interpretative divergences that exist between judges, such discrepancies ‘cannot go beyond the point where they would bring about substantial indeterminacy and erraticism in the law at the level of concrete results’.72
2. The law
It is sometimes claimed that Dworkin confuses or confl ates ‘law’ with ‘the law’. Th e criti-cism alleges, in eff ect, that he does not adequately distinguish between the theoretical account of the concept of law, on the one hand, and the workings of specifi c legal systems on the other. As Kramer puts it:
Dworkin swerves back and forth between speaking about law and speaking about the law; that is, he equivocates between speaking about a general type of institution and speaking about one instance of that general type.73
Th is, Kramer asserts, is especially problematic because it is used to distance his theory (concerned with ‘the law’) from positivist theories (concerned with ‘law’).
3. The rights thesis
Dworkin’s argument that utilitarianism does not take rights suffi ciently seriously is denied by some critics who accuse Dworkin himself of working ‘in the shadow of utilitarianism’.74 In particular, Hart argues that it does not follow (as Dworkin claims) that if X’s liberty is curtailed, this shows that he is not being treated as an equal. For Dworkin counting
‘external preferences’ is a form of double counting (see 10.2.1), a view rejected by Hart and others who are sympathetic to utilitarian versions of justice.
4. A ‘hard case’ is inadequately defi ned
Dworkin describes a hard case (inter alia) as one in which lawyers would disagree about rights, where no settled rule disposes of the case, where the rules are subject to competing interpretations. Some critics have complained that this fails to distinguish suffi ciently a hard case from an easy one. Th e strong version of this argument suggests that Dworkin
‘is committed to the view that all cases are “hard cases”’.75 Th is startling conclusion is arrived at by identifying Dworkin’s allegedly circular reasoning that claims:
In order to discover which cases are ‘hard’, Hercules must apply the principles
rec-●
ommended by the ‘soundest theory’.
A ‘hard case’ is one in which principled (as opposed to syllogistic) reasoning is
●
employed.
Principled reasoning must therefore be used to identify those cases which are ‘hard
●
cases’.
Th us Hercules is committed to the view that all cases are ‘hard cases’.
●
72 Kramer, In Defence of Legal Positivism: Law Without Trimmings, 144. 72 Ibid, 129.
74 HLA Hart, ‘Between Utility and Rights’ in Essays in Jurisprudence and Philosophy, 198 at 222.
75 AC Hutchinson and JN Wakefi eld, ‘A Hard Look at Hard Cases’ (1982) 2 Oxford Journal of Legal Studies 86, 100.
Dworkin swerves back and forth between speaking aboutlawwand speaking about the law; that is, he equivocates between speaking about a general type of institution and speaking about one instance of that general type.73
5. Hercules is objectionable
I mentioned above that critics have had diffi culty in accepting the omniscient Hercules J.
Four major objections have been voiced:
(a) He is a politician. Some critics charge Hercules with substituting his own political judgment for the politically neutral, correct interpretation of previous decisions.76
(b) He is a fraud. He thinks he has discovered the answer to a hard case, but he is fraudulently off ering his judgment as the judgment of the law.
(c) He is a tyrant. He arrogantly assumes his conception of the law is correct, though he cannot prove his opinion is better than that of those who disagree.
(d) He is a myth. No real judges can behave in this Utopian style.
Each of these charges against Hercules is adroitly defl ected by Dworkin.77 6. The theory travels badly
A number of commentators point to an important weakness of Dworkin’s model of law.
It seems to be grounded in a liberal democratic (read American) view of society, and therefore runs into a number of diffi culties when it is applied to other kinds of com-munities, especially ‘unjust societies’. It is not easy to apprehend how the theory might work in an unjust or even an undemocratic society. Dworkin argues, as we have seen, from and for a liberal democratic perspective. How well would the theory travel to a fundamentally iniquitous society in which the rights which Hercules would be seeking do not fi gure as part of the law? How, for instance, might Hercules have performed in apartheid South Africa? Dworkin suggests that in a ‘wicked society’ (and he has in mind Nazi Germany and apartheid South Africa) Hercules may have no choice but to lie. If he is to give eff ect to ‘law as integrity’, Dworkin seems to be saying, how can Hercules reach a decision which is its very antithesis? But this is a complex matter which raises a number of diffi culties.
To test the Dworkin model in an unjust society such as apartheid South Africa, is bedevilled by at least three problems. First, Dworkin’s theory is primarily an argument from democracy; his concern to eliminate strong judicial discretion is premised on the off ensiveness of judges—unelected offi cials unanswerable to the electorate—wielding legislative or quasi-legislative power. Th is argument has an embarrassingly hollow ring in apartheid South Africa. Th e imposition of law upon a disfranchised majority who can change neither the law nor the lawmaker renders any misgivings about the untrammelled power (real or putative) of an unelected judiciary fairly trivial.
Secondly, in reaching his decision in a hard case, Hercules J is expected to fi nd the uniquely correct answer by reference to the ‘community’s morality’ and thereby to give eff ect to individual rights. Such an approach in apartheid South Africa would be more likely to be destructive of rights than to be protective of them.
Thirdly, Dworkin argues that judicial decisions in civil cases characteristically are (and ought to be) generated by principle rather than policy. The judge, since he does not legislate, may not legitimately have recourse to policy considerations. It would plainly be folly to suggest that judges do not take account, explicitly or implicitly, of
76 Scott Shapiro argues that Hercules is being instructed to open up and unsettle the very moral issues that it was the point of having a constitution (a constitutional plan) to settle, Scott J Shapiro, Legality (Cambridge Mass, and London: Belknap Press of Harvard University Press, 2011), 311.
77 See Law’s Empire, 258–66, 397–9.
policy. But when they do, Dworkin asks us to read such appeals to policy as, in effect, statements about rights, that is, references to principles. This ‘substitutability’ of arguments of principle and arguments of policy is a further dimension of Dworkin’s justification of adjudication by unelected officials—a preoccupation more genuinely held in an elective democracy. There was, nevertheless, an undeniable proclivity amongst South African judges to invoke, for example, what may broadly be called
‘apartheid’ or ‘separate development’, in order to justify a decision in a hard case dealing with race laws. Apartheid, on Dworkin’s account, is manifestly a ‘policy’
(though he does, on occasion, suggest that policies advance ‘some overall benefit for the community as a whole’, a description hardly apposite here), but we are to understand such references as an appeal to the competing rights of the parties to the dispute (ie, a reference to ‘principles’).
But yet again the assumptions about an essentially just legal system intrude. For Dworkin, as we have seen, legal principles ‘must be moral principles’.78 He is, however, by no means clear about this, referring occasionally to principles which are ‘morally defective’,79 ‘unattractive’,80 ‘very nasty’,81 and recognizing that there ‘is no persuasive analysis . . . that insures that the principle that blacks are less worthy of concern than whites can be rejected as not a principle at all’.82 But his conclusions in respect of the position of a judge in a wicked legal system dispel to some extent the uncertainty as to whether the policy of apartheid, and the principles, however unjust, that are deployed in adjudication, do indeed conform to Dworkin’s general typology.83 References, then, by Hercules J to the ‘policy’ or ‘principle’ of racial discrimination (or ‘national security’) are, of course, contrary to Dworkin’s expectation, more likely to be destructive of rights than
But yet again the assumptions about an essentially just legal system intrude. For Dworkin, as we have seen, legal principles ‘must be moral principles’.78 He is, however, by no means clear about this, referring occasionally to principles which are ‘morally defective’,79 ‘unattractive’,80 ‘very nasty’,81 and recognizing that there ‘is no persuasive analysis . . . that insures that the principle that blacks are less worthy of concern than whites can be rejected as not a principle at all’.82 But his conclusions in respect of the position of a judge in a wicked legal system dispel to some extent the uncertainty as to whether the policy of apartheid, and the principles, however unjust, that are deployed in adjudication, do indeed conform to Dworkin’s general typology.83 References, then, by Hercules J to the ‘policy’ or ‘principle’ of racial discrimination (or ‘national security’) are, of course, contrary to Dworkin’s expectation, more likely to be destructive of rights than