Assault on positivism
In this essay, I will discuss, analyse and investigate Ronald Dworkin’s ‘assault on legal positivism’ particularly HLA Hart. I will outline Dworkin’s thoughts on ‘equality’ and ‘good lives and living well’.Dworkin’s assault states ‘the semantic theories of legal positivism, differ from full-blown or ‘strict’ conventionalism.’ ‘ The former argues that the description of law as a convention is recognised and applied linguistically.
According to Dworkin, a conventionalist would say that in the case ‘Mcloughlin v O’ Brian’.’There is no law and that the judge must, therefore, exercise a discretion and make a new law.’ ‘The plaintiff learned, at home, from a neighbour her husband and children had been in a car accident. At the hospital, she found her husband and sons seriously injured and her daughter dead. She suffered nervous shock and sued.’
Under English law, ‘a plaintiff could recover damages for nervous shock only when witnessed the accident or arrived on the scene immediately thereafter.’ ‘The House of Lords held that, Mrs. Mcloughlin could recover damages for nervous shock. On ‘policy’ grounds, there was nothing in the law to prevent the plaintiff from succeeding’.
For Dworkin, ‘propositions of law are true if they figure in or follow from the principles of justice, fairness and procedural due process that provide the best interpretation of the community’s legal practice’. Deciding whether Mrs. Mcloughlin should recover involves a judge thinking of themselves not as voicing individual moral or political convictions.
‘There cannot be a rule of recognition by which to identify what is law or law as a union of primary and secondary rules providing an accurate model as it fails to account for principles and policies.
Additionally, to rules, there are ‘principles and policies’. A principle is not a conclusive reasoning it will have to be weighed against other principles in the system. A ‘principle’ is ‘a standard to be observed because it is a requirement of some dimension of morality’.
A ‘policy’, is ‘that kind of standard that sets a goal to improve either economically, politically, or socially the community’. Dworkin rejects any ‘rule of recognition by which principles and policies gain admission to the legal system; indeed, such a rule would be an impossibility for such standards ‘are numberless, and they change so fast.’
Principles describe rights; policies describe goals. ‘It is Part of Dworkin’s argument that If we are to respect individual rights, they must not be capable of being squashed by some competing community goal.’ ‘The central question in any litigation Is not whether the community’s interests should be satisfied. Thus, civil cases are, and should be decided by reference to principles.’
Critics have attacked Dworkin’s model in numerous ways in terms of principles one resonates with myself. Joseph Raz holds Dworkin for his failure to distinguish between statements of law and statements about the law.
Contesting the model of rules, Dworkin uses the case of ‘Riggs V Palmer’, debating whether a murderer could inherit under a victim’s will. ‘The rules of testamentary succession provided no applicable exception. The court held, however, that the application of the rules was subject to the principle that ‘no man should profit from his own wrong’.’ This decision indicates law and principles go hand in hand.
We see that these cases, to which no rule is directly applicable, require the judge, in Dworkin’s thesis, to deploy standards other than rules. ‘He appoints Hercules, a judge ‘of superhuman skill, learning, patience, and acumen’. ‘Dworkin’s holistic conception encourages Hercules to be imaginative in his search for coherence with fundamental principle’.
‘This leads to a consideration of the role of the doctrine of precedent. Dworkin argues that a precedent may have ‘enactment’ or ‘gravitational’ force. The effect on future cases of a judgment having enactment force would be limited to its precise words.’ This theory of precedent returns Dworkin to the distinction between the roles of principles and policy in hard cases. ‘In decisions generated by policy, there is no argument of fairness in respect of Government decisions which seek to serve a collective goal.’
Dworkin might merely set out a standard by which judges might use, however, how can those with an interest in the law such as judges relate and match up with Hercules a judge of superhuman skill. We would be limiting ourselves and arrogant to presume that in hard cases Hercules an unrealistic and unobtainable mythical man has found the ‘right answer’.
Dworkin distinguishes two differences lawyers might have about the law. ‘While agreeing on the criteria a rule must fulfil to be legally valid, they may disagree whether these criteria are satisfied by law.’ Dworkin’s model of adjudication pursues one right answer. How can we accept that there is one right answer in hard cases if we cannot always prove or demonstrate such?
Dworkin’s thesis takes the liberal stance. Dworkin proposes amongst other ideals ‘a radical redistribution of wealth, a universal health-care system and a more generous welfare scheme. He regards the free market as unfair because it rewards the choice to perform a useful service, and one’s fortuitous talent for doing it.’
‘The semantic sting entails that the concept of validity is more than a mere declaration in accordance with shared criteria embodied in a rule of recognition.’ This is at the core of Dworkin’s assault on legal positivism.
‘For Hart, it is a social rule established by the conduct of those who also accept the rule as a justification for those who fail to observe it.’ Dworkin claims that Hart’s theory commits him to the proposition that the ‘rule of recognition’ may be uncertain within some points of the law itself.’ Hart’s rule of recognition does have the ability to recognise legal principles which have been institutionalised. Dworkin wants to argue that principles can and do legally bind judges before precedent has been set.
Dworkin accumulates that Hart’s theory of legal positivism is ‘prey to the semantic sting.’ Hart denies that he ever held ‘the mistaken idea that if the criteria for the identification of the grounds of law were not uncontroversially fixed, “law” would mean different things to different people’.
Law as literature is a thought-provoking analogy for Dworkin’s vision morals and the legal system’s nature. ‘Dworkin argues, we seek to interpret the intentions for example of a poet or author judges alike interpret a developing story. They recognise a duty to continue the practice they have joined.’ ‘Like a chain novel each judge adding a chapter, each judge requiring a vision of the story as it proceeds to find meaning, and an interpretation that best justifies it.’ Dworkin’s proposal on literature remains an important source of insight for all those interested in questions of morality and justice, notably mostly lawyers and judges.
Central to Dworkin’s theory is the relationship between law and force. This is a continuing theme in legal positivism, natural law, and certain social theories. He identifies consequences that flow from the acceptance of integrity. Dworkin suggests ‘we respect and value the law because while an efficient government is laudable, there is a greater value that is served by legality.’
Dworkin’s case for ‘law’s legitimacy rests on the ideas that society accepts integrity asserting its moral authority to use coercion.’ ‘Integrity requires reciprocity between citizens as well as their recognition of the importance of their associative obligation.’
Dworkin attacks Hart’s theory as merely ‘describing how participants experience the law from an internal point of view.’ This internal standpoint, Hart now seems appears to accept. Hart is now willing to acknowledge that the ‘rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values.’ For Dworkin This concession situates Hart, ‘in soft positivist camp.’
Dworkin succeeds in defending integrity as a distinct ideal and in indicating that this ideal has a distinctive place in the current political and legal community. Dworkin’s stance on the law is a more modern account than Hart’s.
Dworkin endorses a high degree of state interference in individuals lives, not only to prevent harm to others but to redistribute wealth and resources’. Dworkin’s conception of equality does not provide a suitable ideal.
By dividing resources equally, he believes when it’s complete, no one would prefer another’s bundle of resources to his or her own. This is secured with a market mechanism in which the primary market compromises the resources in question and a secondary market consists of insurance.’
‘Dworkin’s hypothetical primary market is a Walrasian auction. The auction matches exactly supply and demand.’ Dworkin proposes that a ‘more elaborate version of the auction could be deployed to provide a method for developing or testing equality of resource in a community that has a dynamic economy, with labour, investment, and trade.’
‘The secondary market in insurance is required because other forces come into play once the auction is concluded.’ ‘These include individuals’ variable levels of skill, luck, and the possibility of gambling.’ ‘Providing equality of opportunity to insure would mean that equality of resources would not require redistribution in the future by this means individuals’ physical or mental handicaps can be compensated.’
In the case of individuals’ talents, the envy test is applied. ‘It requires that no one shall envy the occupation and resources at the disposal of anyone else over time, though an individual may envy another’s resources at any time.’ Dworkin, therefore, argues that the ‘role of talent is to be neutralised by a periodic redistribution of resources through some form of income tax.’
Dworkin concedes that fulfilling life’s ambitions poses little threat in respect of individual talent. Dworkin suggests that the ‘solution is before the auction is underway to specify that everyone knows his tastes, ambitions, talents and his approach towards risk. But he has no knowledge of what income level his personal talents will permit him to achieve.’ ‘The opportunity to procure insurance is now not against having or not having a talent or handicap, but against not being able to earn an income of a certain level.’The rights to liberty are automatically protected whenever equality is achieved.
Dworkin maintains that at the heart of all conceptions of equality lies the ‘abstract egalitarian principle’. In Dworkin’s hypothetical auction each bidder’s subjective conception of his or her social and moral situation required to pursue the good life may be quantified by reference to opportunity costs, in the same way, physical resources are calculated. ‘They may be assessed by enquiring how far these desires can be met within an equalitarian structure that measures their cost to others.’
Dworkin’s model permits one constraint on absolute freedom of choice ‘the rectification of externalities produced by some individuals at the expense of others.’Other liberties rise from equality in private ownership including ‘individuals freedom to engage in actions essential to establishing and revising the convictions, projects, and preferences that they bring to and after the auction, as well as a variety of decisions about production and trade that will alter and reallocate their initial holdings.’ ‘Protection to several liberties exists such as freedom of religion and expression, and unconstrained access to literature and art.’
Dworkin also stipulates that the ‘exercise of prejudice must not contravene the ‘abstract egalitarian principle’. It is, therefore, necessary to impose on the auction a ‘principle of independence’ to achieve equality.’
Dworkins’ view on equality may not be universally applicable. His standpoint is almost a form of communism rather than liberalism. If applied I fear it would limit what makes us unique and special are self-expression. His approach is too naïve and unfitting to the continually developing world we live in.
Dworkin’s notion of equality is nothing new, it goes back to Plato and his notion of order. Plato did not think the same in the sense of you do your job I do mine. However, Dworkin preserves this theory but adds to it this also refers to the socialist element of Dworkin’s theory.
Good lives and living well.
Dworkin endorses what he calls the ‘Hume’s principle distinguishing between fact and value’. ‘He insists upon the independence of arguments of value, rejecting the idea that external forces could induce a conflict between our values.’
Someone lives well ‘when he senses and pursues a good life for himself and does so with dignity: with respect for the importance of other people’s lives and for their ethical responsibility as well as his own.’ We can live well without having a good life.
Dworkin’s theory promotes self-respect and individual dignity as a persistent strain on his legal, moral and political philosophy. Not everyone has an equal view of goodness. To strive adverbially for a good life and to live well is justifiable, but to do this whilst also respecting the importance of other lives is too much to ask. It goes against our natural instincts of survival of the fittest it is inevitable we may have to step on others on our way to a good live and to live well. Dworkin asks us to ignore our selfish instincts which are unprobeable. Can we truly pursue a live of dignity and truly respect others lives without believing we are superior in some ways or lacking in others. Even if we do not express these thoughts but believe them to be true.
It is incomprehensible to reject the idea that external forces could induce a conflict between our values. It could be viewed that religion and faith are external forces which supposedly from the beginning of time values have been based upon.
I conclude that Dworkin fails to conclusively prove his theory’s superiority. Despite the insightful ideological features of Dworkin’s theory, such as his right answer thesis, we see no improvements in the predictability of law. The inability to recognise precisely when a principle becomes legally valid, leaves ambiguity to what the law requires. It is one thing to say that for certain purposes there are certain answers it is another as to when and how policy should apply.
Hart now appears to accept that there may be moral reasons for conforming to the law. Hart is now even willing to acknowledge that the rule of recognition may be included in verifying legal validity conformity with moral principles and values. It would be beneficial and practical if Dworkin’s theories could supplement and fill the voids of Hart’s theory for the greater good in understanding and progressing the law.