Transcript powerpoint on Dworkin

Jurisprudence LG327
Topic 4 – Ronald Dworkin
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Themes
The interpretive approach to jurisprudence
The idea of constructive interpretation
The difference between ‘rules’ and ‘principles’
Interpretation and ‘integrity’
Are there ‘right answers’?
How do judges decide ‘hard cases’?
Dworkin’s critique of legal positivism
The Dworkin-Hart debate
Dworkin and Natural Law
Rights and utility: rights as ‘trumps’
• Offers a ‘third way’ alternative to natural law and
positivism – the interpretive approach to law
• There is no separation between law and morality
because law includes ‘principles’ as well as ‘rules’.
Therefore, legal adjudication will rest partly on moral
adjudication.
• Legal rules do not contain within themselves the means
for its own explanation or exposition. We cannot interpret
law without making controversial judgments of political
morality (this applies with particular force in constitutional
adjudication)
• “Fidelity to law, as such, cannot be a constitutional
philosophy because a judge needs a constitutional
philosophy to decide what the law is” – ie along with
legal rules, we need to interpret legal rules in light of the
prevailing political morality of the community
• Legal ‘rules’, by themselves, are not dispositive,
we have to rely on ‘principles’ to guide and
qualify the application of ‘rules’.
• In constitutional adjudication, for example, there
can be no ‘apolitical’ interpretation of law,
because judges will have to reach into the
principles latent in the text in order to arrive at
the decision
• What dilemmas does this pose for the role of the
judge in a democratic society?
• Distinguish ‘rule’, ‘principle’ and ‘policy’. The first two are
legitimate sources for legal adjudication
• Example of principles: “one should not profit from one’s
own wrongs”; “persons should be treated equally”
• “… if some cases arises as to which the rule book is
silent, or if the words in the rule book are subject to
competing interpretations, then it is right to ask which of
the two possible decisions in the case best fits the
background moral rights of the parties.” [from A Matter of
Principle]
• On this model of adjudication, what the law is depends
on essentially moral questions – the moral rights
available to the parties in the form of ‘principle’
• How do judges use “rules” and “principles”? Of
those possible decisions that “fit” past official
actions (ie precedent), judges, they consider
which have the best moral value
• In this way, judges ‘improve’ the law through its
interpretation
• A legal ‘principle’ is an appropriate one where 1)
it coheres with existing legal materials; and (2)
the principle is the most morally attractive
standard that satisfies these materials
• ‘Hard cases’ are pivotal, because they require
reliance on moral adjudication
• Constructive interpretation
“Legal claims are interpretive judgments and therefore
combine backward- and forward- looking elements; they
interpret contemporary legal practice as an unfolding
narrative” [from Law’s Empire]
- Judges will make the law “the best it can be” by looking
at its background moral principles and purpose”
- We look at law as the practices of a political community
and look at the justifications offered for law in that
community – “legal rights and duties are determined by
interpretation as a scheme of principle that provides the
best justification of certain political practices of a
community”
• Constructive interpretation involves assigning
meaning to an object, or value to a practice –
law is just one example of such practice
• “imposing purpose on an object or practice in
order to make of it the best possible example of
the form to which it is taken to belong” [from
Law’s Empire]
• It does not, however, mean that we can impose
any value on an object such as a legal rule.
“Judges who accept the interpretive ideal of
integrity decide hard cases by trying to find, in
some coherent set of principles about people’s
rights and duties, the best constructive
interpretation of the political structure and legal
doctrine of their community” [Law’s Empire]
- Constructive interpretation is a methodology for
interpreting social practices – “postulating the
value of a practice”
• However, “judges can only impose political convictions
that they believe, in good faith, can figure in a coherent
general interpretation of the legal and political culture of
the community” …
• “the rights conception supposes that the rule book
represents the community’s efforts to capture moral
rights and requires that any principle rejected in those
efforts has no place in adjudication …a judge following
the rights conception must not decide a hard case by
appealing to any principle that is in any way incompatible
with the rule book of this jurisdiction ” [from A Matter of
Principle]
• But what should judges in a totalitarian regime do? Can
they use “principles” that are independent of the morality
of their own political community?
• A broader question is: how could judges
be properly regarded as the arbiters of the
political morality of their community?
• More generally, “constructive
interpretation” does not mean that judges
impose their own view of wise policy –
interpretation and discretion are
distinguished – judges do not legislate per
se
• Constructive interpretation in practice – a “political interpretation” of
the Constitution – taking into account the political morality
underpinning it
• “[Kagan’s Senate nomination] hearings could have been a
particularly valuable opportunity to explain the complexity of
constitutional issues to the public and thus improve public
understanding of this crucially important aspect of our government.
But she destroyed any possibility of that benefit in her opening
statement when she proclaimed, and repeated at every opportunity
throughout the hearings, that her constitutional philosophy is very
simple: fidelity to the law. That empty statement perpetuated the silly
and democratically harmful fiction that a judge can interpret the key
abstract clauses of the United States Constitution without making
controversial judgments of political morality in the light of his or her
own political principles. Fidelity to law, as such, cannot be a
constitutional philosophy because a judge needs a constitutional
philosophy to decide what the law is.”
• Does this mean that judges must in some
sense remain defensive of existing social
conventions and historically prevailing
ideas?
• Alternatively, they cannot be philosophical
sages given their unelected office – this
unearths a broader dilemma about the
legitimate role of judges in a democracy
• Dworkin considers the inadequacy of looking to the
historical intention of constitutional ‘framers’ (or the
collective intention of legislators) – we cannot ‘second
guess’ the psychology of a parliament (or indeed a
people)
• “… there are no, or very few relevant collective
intentions, or perhaps collective intentions that are
indeterminate or indecisive one way or another, or
perhaps intentions so contrary to our present sense of
justice that they must in the end be rejected as a guide
to the present Constitution.” [from A Matter of Principle]
• “judges cannot decide what the pertinent intention of the
Framers was, or which political process is really fair or
democratic, unless they make substantive political
decisions”
• “any recognisable theory of judicial review is interpretive
in the sense that it aims to provide an interpretation of
the constitution as an original, foundational document,
and also aims to integrate the constitution into our
political and legal practice as a whole” [from A Matter of
Principle].
• The constitution is not a ‘clean slate’. We must pay
attention to the point of a constitution and the deeper
reasons for having a constitution as a fundamental law:
what deeper values does this express, and how may
these guide the law?
• We must consider the reasons why the Constitution is
even regarded as the highest law
• “The constitutional provisions that provoke the most
controversial Supreme Court decisions are drafted in
abstract moral language: the Constitution refers to “due
process of law,” “equal protection of the laws,” “cruel and
unusual” punishment, the “right” of free speech, the
“free” exercise of religion, and the “right” to “bear arms,”
for example. Some lawyers, including Justices Antonin
Scalia and Clarence Thomas, insist that we can interpret
these clauses and apply them to concrete contemporary
cases by asking a historical question: What did those
who wrote that language, and the citizens they spoke to,
assume the clauses meant? But that conservative theory
can itself be defended only by appealing to highly
controversial political principles about the nature of
democracy and about the role of intention in
constitutional interpretation.”
• “The clauses, read literally, therefore require interpreters
to develop what they believe to be the best theory of
equal citizenship, which is not necessarily the theory of
the framers … So a genuine constitutional philosophy
must be a system of different kinds of political principle
that guide a judge in interpreting the abstract
constitutional clauses and the past decisions of other
judges. It must include some at least rough theory about
the best conception of democracy, including the best
understanding of the individual rights that must be
secured by law, as a matter of justice, if government by
majority rule is to be fair …” [A Matter of Principle]
• He explains the difference between interpretivism and
positivism in terms of alternative ideas of the rule of law
- The “rule-book” conception, associated with positivism the power of the state cannot be exercised against the
individual other than in accordance with the set of rules
publicly available to all
- The “rights conception” (consistent with constructive
interpretation) - citizens have certain moral and political
rights independently of the content of rules
- The difference between these brings to light very
different conceptions of democracy as well as very
different conceptions of adjudication
… to summarise and conclude on the idea of
constructive interpretation:
“[J]udges should decide hard cases by
interpreting the political structure of their
community in the following, perhaps special way:
by trying to find the best justification they can
find, in principles of political morality, for the
structure as a whole, from the most profound
constitutional rules and arrangements to the
details of, for example, the private law of tort or
contract” [A Matter of Principle]
•
Note that based on Dworkin’s theory there are
two stages to legal adjudication:
1. What results or propositions of law ‘fit’ with the
existing legal materials and rules? (the
‘threshold requirement of “fit”’)
2. “then we must choose between eligible
interpretations by asking which shows the
community’s structure of institutions and
decisions – its public standards as a whole – in
a better light from the standpoint of political
morality.”
• Examples in practice – Irish constitutional
law. Consider the rulings in McGee and
Doherty: examine how the judges reach
beyond the narrow ‘rules’ to look at the
ideas of political morality informing the text
as a whole (democracy, equal political
representation, etc)
• Why is Dworkin’s theory considered a ‘naturalist’
one?
• Because it makes the question of what the law is
dependent on some judge’s assessment of
political morality – what the law ought to be
• ie the content of our legal rights is partly a moral
question – no absolute separation of law and
morality is possible – (although neither are they
synonymous completely!)
• Accordingly, Dworkin suggests that a judge who
uses the rights conception of the rule of law will
frame the case in terms of what best captures
the background moral rights of the parties:
• “legal norms’ validity is partly dependent upon
the best justification of political practice, in the
specific sense that valid norms are those which,
in addition to having the right source — their
having been promulgated by the right people or
institutions — are further consistent with the
principles that justify the relevant political
practice”
• So Dworkin disagrees with positivist
because the truth of legal propositions (eg
“persons are entitled to claim for emotional
damages”) does not depend solely on fact,
social convention, or the formal
promulgation of rules
• Note, however, that while judges may use
‘principle’ to supplement, guide and qualify
the ‘rules’, they may not use ‘policy’ (eg
the overall good of the community). This is
for the legislator. Why?
• Note his conception of rights as “trumps” –
prevailing over the overall interests of the
community
‘Law as integrity’
• Judges should decide the law in a way that makes it
more coherent, preferring interpretations which make the
law more like the product of a single moral vision:
• “judges who accept the interpretive ideal of integrity
decide hard cases by trying to find, in some coherent set
of principles about people’s rights and duties, the best
constructive interpretation of the political structure and
legal doctrine of their community.”
• Like constructive interpretation, this will rely on moral
rights that are interpreted as existing independently of
the content of specific legal provisions
• This principle of integrity “instructs judges to
identify legal rights and duties … on the
assumption that they were all created by a single
author – the community personified – expressing
a coherent conception of justice and fairness.”
• “We accept integrity as an ideal because we
want to treat our political community as one of
principle, and the citizens of a community of
principle aim not simply at common principles,
as if uniformity were all they wanted, but the best
common principles politics can find.”
[From … A Matter of Principle]
• Note that the ideal of integrity applies at the
legislative as well as adjudicative stages and
rules out ‘checkerboard’ solutions
• This is motivated by the fact that legal positivism
does not adequately explain certain aspects of
legal practice. The ‘truth’ of legal propositions
will depend not only on social facts, but also on
whether they are the product of a coherent
moral vision that can be said to represent the
political morality of the system as a whole.
• ‘Law as integrity’ at work in Irish constitutional
interpretation?
The doctrine of ‘harmonious interpretation’:
“a presumption that the people who enacted the
Constitution had a single scale of values, and
wished those values to permeate their charter
evenly and without internal discordance”
- Hogan and Whyte, J.M. Kelly: The Irish
Constitution, p. 9
• The alternative view is that legal adjudication
(and the appropriate role of the judge) is purely
descriptive with no evaluative or interpretive
elements: “the correct interpretation is just a
matter of discovering what principles the judges
who made past decisions intended to lay down,
and that is just a matter of historical fact”.
• However, Dworkin denies that the alternative
view is “neutral”: “we need a political reason for
his dictum that interpretations must match the
intentions of past judges”
• Contrast this with Hart: the purposes behind the
law might not necessarily be moral ones and
therefore there is no necessary connection
between law and moral purposes (Fuller
criticised this)
• The difference is that for Dworkin, the
identification of the principle or purpose behind
the law will be constructive and interpretive
rather than merely descriptive (or for that matter,
discretionary)
• Note that Dworkin’s theory integrates the
“doctrinal” and “theoretical” dimensions of legal
scholarship because it makes our answers
about what the law is partly dependent on our
interpretation of what it ought to be –
jurisprudence occurs in legal practice as well as
the lecture hall
• Bix: “one’s jurisprudential stance is implied in
every legal dispute settled”.
• He also says that if this view were adopted, it
would make legal education more ‘interesting’
• Again, however, will the judge’s view of “integrity” and
political morality be ideologically tainted by a partisan
worldview? Dworkin’s theory encompasses a certain
optimism as to the capacity of judges to identify the
moral vision of the community as a whole.
• Ian McLean: “… the process of interpretation is not a
humble one … rather than being the servants of the text,
interpreters threaten to become its masters by devising
and applying the rules by which sense is made of it;
indeed, they threaten to become its masters to the point
of laying down the law themselves”
• Take the example of equality legislation and the
“interpretive” dilemmas this presents
• ‘Law as integrity’ may be viewed as a synthesis between
radical and conservative positions:
• Dworkin says that under law as integrity, statements of
law are “neither the backward-looking factual reports of
conventionalism nor the forward-looking instrumental
programs of legal pragmatism.”
• The judge is free to use moral adjudication but is also
relatively constrained
• A judge must ‘continue the past and not invent a better
past’.
• He uses the metaphor of the “chain novel”, in which the
author respects the “past” materials but constructively
interprets them: ‘a judge should approach fresh cases in
the sprit of a novelist in the chain writing a fresh chapter’
• In contrast, ‘conventionalism’ “requires judges to
study law reports and parliamentary records to
discover what decisions have been made by
institutions conventionally recognised to have
legislative powers.”
• In the case of legal pragmatism, the judge is
looking instrumentally, only, to the future, having
regard to what s/he perceives as the welfare the
community: “an instrumentalist judge will see
himself as an officer of government charged with
contributing to the good society according to his
or her conception of what that is”.
• In contrast, ‘naturalism assumes … that members of the
community can have rights and duties as against one
another, just by virtue of the political history of the
community’
• Thus, while Dworkin’s theory is broadly regarded as
‘liberal’ and as permitting a good deal of judicial activism,
it also prescribe a certain ‘respect for the present order’
which law as integrity imposes as a ‘conservative
restraint on adjudication’
• “…there is, for the naturalist, a crucial distinction
between interpreting and improving the political order of
the community, but these are activities that both engage
the judge’s moral sense.”
• Dworkin’s ‘right answer’ thesis
• Why do we need ‘right answers’ in law?
• Dworkin’s theory of interpretation would
seem to rule out consistent or ‘right’
answers because since legal adjudication
depends on moral interpretations, legal
outcomes will depend on the moral
adjudication of the individual judge
• Thus, Dworkin states: “it would be absurd
to suppose that all the lawyers and judges
of a common law community share some
set of convictions from which a single
answer to a question could be deduced”
• He does not “dispute the claim that judges
will have different political moralities, and
therefore disagree about the best
justification of the past”
• Yet Dworkin argues: “in most hard cases there are right
answers to be hunted by reason and imagination.”
• Law is a “seamless web” which enables us to use
principles as well as rules in order to determine the “right
answer”
• Dworkin argues that answers are ‘right’ because the
judge as a participant in legal practice experiences them
as right.
• This means that in theory, judges never have to
‘legislate’ – this adds democratic legitimacy to his theory
of legal adjudication
• Why would judicial legislation be objectionable? And is
there any real difference between judicial legislation and
‘constructive interpretation’?
• If there were no ‘right answers’, this might be a
justification for reverting to the intention of the legislature
but Dworkin would rather than courts remain ‘forums of
principle’
• Thus, judges can resolve the indeterminacy in law while
remaining within the law and this may be used to provide
a justification of ‘judicial activism’
• “Even when no settled rule disposes of the case, one
party may nevertheless have a right to win. It remains
the judge’s duty, even in hard cases, to discover what
the rights of the parties are, not to invent new rights
retrospectively” [Law’s Empire]
• The Dworkin-Hart debate
• As already noted, Dworkin disagrees with
the legal positivist argument that the truth
of a legal proposition has no “necessary
connection” with its morality. It will also
depend on whether this proposition can be
justified from within a coherent
interpretation of the political morality of the
legal and political system as a whole
• He identifies three positivist theses he disagrees with:
• (1) “The law of a community can be identified and
distinguished by specific criteria, by tests having to do
not with their content but with their pedigree or the
manner in which they were adopted or developed.”
• (2) “The set of these valid legal rules is exhaustive of ‘the
law,’ so that if someone’s case is not clearly covered by
such a rule (because there is none that seem
appropriate, or those that seem appropriate are vague,
or for some other reason) then that case cannot be
decided by ‘applying the law.’ It must be decided by
some official, like a judge, ‘exercising his discretion.’”
• (3) “To say that someone has a ‘legal obligation’ is to say
that his case falls under a valid legal rule that requires
him to do or to forbear from doing something”
• In a posthumous reply to Dworkin, Hart stated:
“the main difference between my view and
Dworkin’s … is that whereas I describe the
general agreement found among judges as to
the criteria for the identification of the sources of
law to their shared acceptance of rules providing
such criteria, Dworkin prefers to speak not of
rules, but of ‘consensus’ and ‘paradigms’ and
‘assumptions’ which members of the same
interpretive community share’”