Thursday, October 26, 2006

Dworkin attack positivist model of rules

Critical study of Dworkinian Theory

In the philosophy of pragmatism, pragmatism implied a distrust of absolutes and a belief that values (including the value of truth) are realized only in practice, as the successful means of achieving deliberately chosen ends. The sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law for putting the human factor in the central place and relegating logic to its true position as an instrument. That instrument to be used is for realizing the destiny of common law as a continuous expression of the changing patterns of community life. (Roscoe Pound, 1931)

According to positivist analytical jurists, judges in hard cases cannot apply law to reach their decisions but necessarily exercise discretion. Since the authority for this exercise of discretion cannot easily be explained in legal terms, the judge as ‘legislator’ (adjudicator) is a highly problematic figure unless seen in Austinian terms as the delegate of a sovereign electorate. Such a judge must, in a democracy, defer always to the democratic will as expressed in legislation. Consequently, judges’ tendencies will always be to favour the majority will so expressed. They will lack the authority to protect minorities through the exercise of creative discretion against the majority. Yet rights are precisely those legal entitlements that should be enforceable against anyone – even an opposed majority. Must it be said that in hard cases there are no rights to be relied on?

Dworkin’s concern to escape the limitations of positivism is to affirm law’s capacity to defend broad liberal values of individual freedom and autonomy, if necessary against majority wishes reflected in government policies. He sees a central task of law as to prevent, not aid, the “tyranny of the majority”.

Dworkin’s position is not framed as a defence of common law thoughts. His emphasis is on the protection of rights and on the moral autonomy of the citizen. Rights, for Dworkin, are thus antecedent to and give meaning to legal rules; that law is more fundamental than rules and that rules are incomplete and problematic expression of the content of law. This position is close to classical common law thought which recognizes the essence of law in principles expressing the reason of law, not in rules.

Legal Principles

Once the task of the judge has been defined as to enforce ‘rights and obligations whose present power is independent of the majority will judges are in no sense legislators. They do not derive authority, like democratic legislature, from their representing the will of the majority. Nor is it the judge’s task to implement that will, however it is to be understood. Judicial authority must derive from a different source and support a different role from that of a legislature.

Like Roscoe Pound, Dworkin see the judge as deriving both the authority to develop law and the resources to do so from within law itself, not from some external source such as Austinian sovereign whose policy defines this authority of which judges use in their task of interpreting hard cases.

Principles are part of law in the sense that they control and regulate officials. Dworkin’s strategy is to show that principles, which cannot be reduced to legal rules, are treated in practice by courts as legal authorities which cannot be ignored: that they are essential elements in reaching decision in hard cases. Dworkin seeks to argue that in all cases a structure of legal principles stands behind and informs the applicable rules.

A favorite illustration in Dworkin’s writing, of legal principles is the case of Riggs v Palmer (1889) in which the New York State Court of Appeals refused to allow Elmer Palmer to inherit property as a beneficiary under the will of his grandfather, whom he had murdered by poisoning. The applicable legal rule appears to be that legacies contained in legally valid testamentary dispositions are to be guaranteed by law in accordance with the wishes of the testator. Yet the court in Riggs v Palmer consciously decides not to apply the rule and does so by relying on a general principle that a wrongdoer should not be allowed to profit from his own wrong. It is not judicial discretion which operates to defeat the ordinary rule but an interpretation of the rule in the light of a governing legal principle.

Principles vs. Rules

While legal rules may be identifiable by using some positive test expressed in terms of rules of recognition, basic norm or sovereign command, legal principles cannot be so identified. They emerge, flourish and decline gradually by being recognized, elaborated and perhaps eventually discarded over time in the ongoing history of the legal system concerned.

Because they defy positivist test that neatly distinguish law from non-law they cast doubt on the whole structure of positivist explanation. And this is fundamental because, as Riggs v Palmer shows, principles control the applicability of rules. The direction of Dworkin’s argument at this point might suggest the conclusion that the internal-external dichotomy dividing law from non-law, or legal insiders from legal outsiders, is to be discarded. (Legal insiders are those participating in the interpretation of legal rules and principles and so involved in determining creatively what is and what is not law, while outsiders are those uninterested in or unable to play the interpretive game).

Principles differ from rules in other fundamental ways. They do not apply in an all-or-nothing fashion, as rules do. Rules are either applicable or not; principles have a “dimension of weight”. Legal rules cannot logically conflict – if they seem to do so one rule must be an exception to the other and can be written into it. Otherwise one of the rules must be invalid. But there may be conflicting principles applicable in the same case. The task of legal interpretation then involves weighing the principles against each other as they relate to the case in hand. One might consider equitable principles as example. The maxim ‘equity regards as done that which ought to be done’, ‘equity will not perfect an imperfect gift’ and ‘equity will not allow a statute to be used as an instrument of fraud’ might suggest different results when applied to the same case. The judge’s task would be to assess their relative weight in the particular circumstances, so as to reach a conclusion by applying them.

Do judge make law?

Dworkin does not deny the need for weak discretion. Judges do make law because all the resources for their proper decisions are provided by the existing law as correctly understood. A judge does not decide a case in a legal vacuum but on the basis of existing rules which express, and at the same time, are informed by, underlying legal principles.

The task of a judge faced with a hard case is, therefore, to understand what decision is required by the whole doctrinal structure of existing law. If rules do not give judge guidance, a broader understanding of the patterns of values that have gradually developed in the legal system and are expressed in the combination of rules and principles, does offer that guidance. Judges must understand the content of the legal system and gives effect to it in their judgments to the best of their ability. Their task is undoubtedly creative. Yet it is not legislative. Properly understood, the judicial role is not the dynamic one of making law like a legislator, nor is it the purely passive one of ‘finding law’. The judge must make the law the best that it can be through creative interpretation of existing legal resources, but no non-legal materials are to be used in doing so. There is simply no room for the exercise of strong judicial discretion. Dworkin’s theory allows judges to asses critically the work of their predecessors even to the extent of declaring and refusing to follow their ‘mistakes’ which is similar to classical common law thought.

Policies and Principles

While the application of principle is fundamental to the judicial function, this is, for Dworking, to be distinguished clearly from the invocation of policies – standards setting out economic, political, or social goals to be reached. The latter are normally not a matter for judges, but for legislatures. While the law that Dworkinian judges are required creatively to apply will have been influenced by policy matters, policy should not shape their legal judgments in the way that principles – the expression of the community’s moral and political values reflected in law – must.


Many critics have doubted that principles and policy can be clearly distinguished in the manner Dworkin requires.

For Dworkin, the attempt to explain judicial creativity leads to the conclusion that this can be done only by becoming a participant in interpreting law in the particular legal system concerned. However, Dowrkin’s approach leads to serious problems for normative legal theory as an explanation of judicial decision-making and processes of doctrinal development.

Dworkin makes some determined efforts to avoid his theory becoming a defence of professional prerogatives or of the intellectual or moral autonomy of professional legal knowledge. Thus he insists that the community of participants in legal interpretation is not just a community lawyer. Anyone living in a society and actively committed to the values of its legal system is properly seen as a participant in the task of interpreting that society’s law.

It follows that a citizen can properly disagree with the interpretation of the law offered by the highest court of the legal system. A citizen’s allegiance is to the law, not to any particular person’s view of what the law is, and he does not behave unfairly so long as he proceeds on his own considered and reasonable view of what the law requires. What is reasonable is matters of interpretive debate and lawyers and judges have no monopoly of such judgments.

Thus Dworkin provides a justification for civil disobedience, not one justifying breach of law, but one that justifies following a reasonably held interpretation of law that happens to differ from that made by official legal authorities. For Dworkin, this is not a licence to disobey but an assertion that there can be cases where the meaning of law is a matter of legitimate dispute. In such cases the view of citizen dissenters ought to be respected and their acts, based on such a view, should be judged with official tolerance.

It seems profoundly unrealistic to ask for official toleration of acts that will be seen as law-breaking. It is also profoundly unrealistic to consider non-lawyer citizens, on the one hand, and lawyers and judges, on the other, as part of the same community of legal interpreters. Thus the image of community is entirely unconvincing.

If law is to be understood as interpretation, it is important to recognize clearly in legal theory that lawyers almost entirely monopolize that interpretation. Any other view seems either naively idealistic or a willful refusal to recognize evidence from social experience.


Philosophy, Morality and Law (1965)
Philosophy and the Critique of Law (1971)

Ronald M Dworkin


JimKouri said...

Pat Buchanan has an exellent column on judicial tyranny:

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