The Dworkinian Critique of Positivism:A Critical Outline

Transcription

1 The Dworkinian Critique of Positivism:A Critical Outline The Dworkinian Critique of Positivism:A Critical Outline By Ashish Pathak* Cite as : (2002) 8 SCC (Jour) 22 Introduction In this paper, the author has made an attempt to critically outline Professor Ronald Dworkin's views on the inadequacy of the classical positivist treatment of law as a system of rules. Background For long it has been the received opinion that judges filled in the gaps left by rules by using their discretion. Positivistic jurisprudence from Austin to Hart placed strong emphasis on the part played by judges in the exercise of their discretion. "In these cases it is clear", Hart has said, "that the rule-making authority must exercise a discretion, and there is no possibility of treating the question raised by the various cases as if there were one uniquely correct answer to be found, as distinct from an answer which is a reasonable compromise between many conflicting interests". A competing view was espoused by the realists who placed absolute emphasis on the discretion of judges and relegated the "rules" to an obscure position. Earlier, little attention was paid to the analysis of discretion. However, a determined effort has been made lately by Ronald Dworkin, who has cast serious doubts on the orthodox opinion and has emerged as the principal opponent of Hart. Dworkin's views have posed a sustained challenge to the positivist account and have received critical acclaim by leading jurists of the world. Methodology The methodological implications of the present paper are explorative, descriptive, analytical and critical. The author has tried to provide an outline of Hart's theory, despite the fact that Dworkin also gives a model of the same in his critique. This provision was felt necessary by the author because a model is a product of its author's judgment of what is significant in and about the actual text(s). Dworkin has constructed a model of the positivist theory and has tried to demonstrate the superiority of his own theory by criticisms of that "model": a feature that can be criticized on the ground that the constructed model is a man of straw: a weak or tendentious representation of the earlier theory, constructed for demolition. It is for this reason that the author provided an outline that is more sympathetic to Hart than Dworkin's model. While dealing with the Dworkinian thesis, care has been taken to allow him to do most of the talking, so as to allow the reader to have a first-hand interaction with the crafty professor. Towards the end, a summary of the Dworkinian account has been provided along with the author's own criticisms, questions and reservations. A uniform mode of citation has been followed. Positivism and Dworkin's attack Any account of the Dworkinian critique of positivism and his idea of law as integrity1 must first begin with at least an outline of Hart's concept of law as a union of primary and secondary rules because the former explicitly rejects Hart's way of drawing a distinction between law and "other social standards" by reference to a "master rule", the rule of recognition. Â As will be examined later, Dworkin attacks the whole idea that there is some fundamental test or criterion in the nature of a rule of recognition that serves to distinguish law from morality2 He offers a powerful and exciting analysis of the nature of legal reasoning, and poses new questions for legal theory. The author has absolutely no doubt that if, at the end of the day, the achievements of Dworkin's critique of positivism remain uncertain, it is perhaps as much the fault of ambiguities in the positivist position itself, as of difficulties in Dworkin's own argument. Dworkin makes clear that he chose to concentrate his attack on Hart, not just because he was concerned with the defects of Hart's theory, but because it was the most sophisticated version of the view he was challenging: legal positivism. In his own words3: "I want to make a general attack on positivism, and I shall use H.L.A. Hart's version as a target, when a particular target is needed. My strategy will be organized around the fact that when lawyers reason or dispute about legal rights and obligations, particularly in those hard cases when our problems with these concepts seem most acute, they make use of standards that do not function as rules, but operate differently as principles, policies, and other sorts of standards. Positivism, I shall argue, is a model of and for a system of rules, and its central notion of a single fundamental test for law forces us to miss the important role of these standards that are not rules."

2 Understanding Hart An account of Hart's concept of law, in turn, will have to consider what Austin's notion of law is, for Hart's ideas emerge primarily from a critique of Austin's classical version of legal positivism4 Austin's theory of law is set within a theory about the various rules that govern human conduct5 According to him, some rules are set for humans by God, principles which are not merely accepted, but are morally valid and binding: this is "divine law". Other laws are made by humans for each other: these include "positive law" (what we ordinarily call "law") and "positive morality" (all other human standards, ranging from etiquette and custom to international law, which are, Austin says, not "law properly so called"). For Austin, "a law" is a general command, enforced by the threat of punishment for disobedience, and which is traceable to a "sovereign"; some person or set of persons whom the bulk of the community habitually obeys and who does not habitually obey any other human being/agency. Most of positive morality, by contrast, is not consciously set by particular persons or backed by threats of formal sanctions, but consists rather of norms that prevail informally within the community and which are supported by social pressures. Law is thus different from, though it can overlap in content with, positive morality. Hart rejects Austin's conception of law, but nevertheless defends positivism. He asserts that the idea that laws are a sovereign's orders backed by threats misrepresents even what Hart calls "primary" rules of law, those rules that impose obligations and which are the basis of Austin's analysis. More importantly, Austin's conception obscures secondary rules, which are rules about rules; secondary rules of recognition, adjudication and change which confer powers, both public and private, on officials and citizens. For Hart, primary rules are paradigmatically of an obligation-imposing type. Secondary rules conferring public powers enable the officials to identify, decide disputes according to, and alter, legal rules; and those conferring private powers enhance the individual citizen's capacity to expand the sphere of his or her individual autonomy by making contracts and wills, getting married etc. and so choosing to participate in a range of social practices which plan and regulate life out of court6 According to Hart, the union of primary and secondary rules is at the core of the concept of law, and its outer boundary is defined by a complex rule; the ultimate rule of recognition. This "ultimate" rule of recognition, which exists as a matter of official practice, authorizes the deliberate creation of legal rules and establishes a hierarchy of criteria for the identification of rules as legal rules. In Hart's own words7: "One of the central theses of this book is that foundations of a legal system consist not in a general habit of obedience to a legally unlimited sovereign, but in an ultimate rule of recognition providing authoritative criteria for the identification of valid rules of the system." Thus, Hart rejects Austin's view of validating laws by tracing them back to their issuance by a sovereign. He says that a legal rule exists when it satisfies the criteria of legal validity used in a legal system, criteria that could be stated in the "rule of recognition"8 These are the criteria that are actually accepted and employed by officials of the system. Legal rules, unlike other social rules, need not be generally accepted in order to be valid but, of course, in a real legal system they are generally obeyed9 This statement reflects the heart of Hart's positivism since it makes it clear that for legal rules to acquire their legal character requires no moral or popular legitimation of them of any sort in that they need not be "generally accepted in order to be valid". When Hart says that they "need not be generally accepted", by the word "generally" he is referring to the people at large in the State, apart from the officials10 The fact that people might generally obey the legal rule may only be a reflection of the political reality in that State, which might have an authoritarian or even downright immoral government. According to Hart the fact of obedience has nothing to do with the legal character of the legal rule â and therein lies Hart's positivism. A necessity for popular or moral legitimation for legal rules to acquire their legal character would take Hart out of the ranks of the positivists. The question that some may ask here is why we should group Austin and Hart together as "legal positivists"? In effect, Hart himself answers this question by listing three doctrines of the classical positivists and elaborating his corresponding views. Firstly, "laws are commands"; secondly, "there is no necessary connection between law and morals, or law as it is and law as it ought to be"; and thirdly, the analysis or study of meanings of legal concepts is an important study to be distinguished from (though in no way hostile to) historical inquiries, sociological inquiries, and the critical appraisal of law in terms of morals, social aims etc.11 Hart rejects the first of these doctrines that "laws are commands", but accepts the second and the third. The second doctrine that "there is no necessary connection between law and morals", is particularly relevant here and needs some elaboration before we turn our attention to the Dworkinian thesis. Positivists in general, including Kelsen, maintain that law is distinguishable from other social standards such as morals and etiquette. There may be an influence of common morality on law and vice versa in that the laws and mores of a community do overlap and influence each other but they are not one and the same thing. The fact that they influence each other entails that they are not one and the same. All positivists accept the truism that law can be good or bad, wise or foolish, just or unjust. For Hart the relationship between law and morals is contingent and factual and not necessary and logical. On the basis of five truisms about human nature, namely, human vulnerability, approximate equality, limited

3 altruism, limited resources and limited understanding and strength of will and given only the general aim of survival, Hart argues that there are certain rules of conduct which any social organization must contain if it is to be viable. Law and morals must both contain this "minimum content of natural law", for without it the aim of survival could not be achieved12: "... men, as they are, would have no reason for obeying voluntarily any rules; and without a minimum of cooperation given voluntarily by those who find that it is in their interest to submit to and maintain the rules, coercion of others who would not voluntarily conform would be impossible." On this, it may perhaps be argued that though minimalist, it does operate as a qualification on the claim that there is no necessary connection between law and morality. However, this should not distract us unnecessarily from the instant context. For the time being, suffice it to say that for the positivist it is not necessary that any moral condition be satisfied before something qualifies as valid law. Thus, for Hart, the validity of a law is logically independent of its morality and that the criteria of validity of a legal system may, but need not, incorporate a moral test. Dworkinian critique Dworkin's own model of positivism sets the stage for his critique. He summarises13 what according to him are the key tenets of positivism as follows14: 1. The law of a community is a set of special rules used by the community directly or indirectly for the purpose of determining which behaviour will be punished or coerced by the public power. These special rules can be identified and distinguished by specific criteria, by tests having to do not with their content but their pedigree or the manner in which they were adopted or developed. These tests of pedigree can be used to distinguish valid legal rules from spurious legal rules (rules which lawyers and litigants wrongly argue are rules of law) and also from other sorts of social rules (generally lumped together as "moral rules") that the community follows but does not enforce through public power. 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 seems appropriate, or those that seem appropriate are vague, or for 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", which means reaching beyond the law for some other sort of standard to guide him in manufacturing a fresh legal rule or supplementing an old one. 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. (To say he has a legal privilege or immunity is to assert, in a shorthand way, that others have actual or hypothetical legal obligations to act or not to act in certain ways touching him). In the absence of such a valid legal rule there is no legal obligation; it follows that when the judge decides an issue by exercising his discretion, he is not enforcing a legal obligation as to that issue15 This is, says Dworkin, only the skeleton of positivism. The flesh is arranged differently by different positivists, and some even tinker with the bones; different versions differ chiefly in their fundamental test of pedigree which a rule must meet to count as a rule of law. About Austin he says that Austin defined having an obligation as laying under a rule, a rule as a general command, and a command as an expression of a subjective desire that others behave in a particular way, backed by the power and will to enforce that expression in the event of disobedience. According to Dworkin, Austin's thesis asserts the first tenet of positivism and offers a simple factual test: what has the sovereign commanded as the sole criterion for identifying those special rules? About Hart he says that his version of positivism is more complex than Austin's in two ways. First, Hart recognizes, unlike Austin, that rules are of different logical kinds, namely, "primary" and "secondary" rules. Secondly, Hart substitutes a more elaborate general analysis of what rules are and rejects Austin's theory that a rule is a kind of command. Further, Hart's test for validity of legal rules is more sophisticated. He formulates it as the background of standards that have been accepted by officials in a legal system in the form of a fundamental rule of recognition. The legal paramountcy of the rule of recognition rests ultimately on the authority of officials in the legal system who accept it, which authority may rest (and this is what makes Hart a positivist) on a brute monopoly of power; but it need not necessarily rest on a brute monopoly of power â it may even be based on a morally worthy foundation (and this is what makes Hart a soft positivist). The possible ultimate reliance on brute power does not reduce Hart's complex rule-based legal system to Austin's legal system wherein laws are merely the sovereign's naked commands. In the flamboyant words of Dworkin16: "This background that is, the rule of recognition legitimates the decisions of government and gives them the cast and call of legal obligation that the naked commands of Austin's sovereign lacked." Dworkin says that at least in one respect Austin's and Hart's models are very similar17: "Hart, like Austin, recognizes that legal rules have furry edges (he speaks of them as having 'open texture') and, again like Austin, he accounts for troublesome cases by saying that judges have and exercise discretion to decide these cases by fresh legislation."

4 After this, Dworkin launches a ferocious attack, on positivism in general and Hart's model in particular, based on a distinction between legal "rules" and legal "principles". He denies Hart's claim that we can work out what the existing law is by reference to the basic rule of recognition. He also challenges the "open-texture" thesis of Hart that in rare cases where a rule does not cover the fact situation, the courts exercise discretion and have regard to policy considerations (including the presumed policy objectives of the rule) and to considerations of fairness etc. In his own words18: "... When lawyers reason or dispute about legal rights and obligations, particularly in those hard cases when our problems with these concepts seem most acute, they make use of standards that do not function as rules... Positivism... is a model of and for a system of rules, and its central notion of a single fundamental test for law forces us to miss the important roles of these standards that are not rules." Â Principles and policies To have a clear understanding of Dworkin's assertions, it is important to keep in mind the distinction Dworkin draws between principles and policies. A "policy" for him is the standard which sets out a goal to be attained, generally an improvement in some economic, political or social feature of the community, though, he says, some goals may be negative in that they stipulate that some present feature is to be protected from adverse change. A "principle", on the other hand, is a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality. Here, it must also be noted that sometimes Dworkin uses the expression "principle" in a generic sense to refer to the whole set of standards that are not rules. Occasionally, however, he is more precise and distinguishes between rules and principles. Rules and principles Dworkin begins his critique of positivism by discussing a United States case Riggs v. Palmer19, although he tells us that almost any case in a law school casebook would serve his purpose. In that case, a murderer claimed he was entitled to inherit under the will of his victim, his grandfather. The will was valid, and was in the murderer's favour. Existing rules of testamentary succession contained no exception relating to such a case. The court decided, however, that the application of the rules was subject to the fundamental maxims of the common law including the principle that "no man shall be permitted to take advantage of his own wrong, or to acquire property by his own crime" and held that the murderer was not entitled to the inheritance. Dworkin cites another case Henningsen v. Bloomfield Motors20, where the court was faced with the question of whether (or how much) an automobile manufacturer might limit his liability in case the automobile was defective. Henningsen had bought a car, and signed a contract which stated that the manufacturer's liability for defects was limited to "making good" defective parts, "this warranty being expressly in lieu of all other warranties, obligations or liabilities". Henningsen argued that at least in the circumstances of his case, the manufacturer ought not to be protected by this limitation, and ought to be made liable for the medical and other expenses of persons injured in a crash. He was, however, not able to point to any statute, or to any established rule of law that prevented the manufacturer from standing on the contract. The court nevertheless agreed with Henningsen and observed21: "In a society such as ours, where the automobile is a common and necessary adjunct of daily life, and where its use is so fraught with danger to the driver, passengers and the public, the manufacturer is under a special obligation in connection with the construction, promotion and sale of his cars. Consequently, the courts must examine purchase agreements closely to see if consumer and public interests are treated fairly." One significant aspect of this judgment was that no such specific obligation had traditionally been recognized at common law; yet the principle underlying it was influential in the court's decision. Dworkin claims that the decisive considerations in the abovenamed cases were principles, not rules. In Riggs19, the principle that no man may profit from his own wrong was weighed against considerations favouring the literal interpretation of statutes and was deemed to weigh more. In Henningsen20 the principle that automobile manufacturers have a special obligation was likewise weighed against considerations favouring the literal interpretation of contracts. This difference between legal principles and legal rules, says Dworkin, is a logical distinction22 Both sets of standards point to particular decisions about legal obligations in particular circumstances, but they differ in the character of the direction they provide. The two cases of Riggs19 and Henningsen20 show us that the law does not consist entirely of rules: it also includes principles. Principles differ from rules in a number of related ways23:

5 1. Rules apply in an "all-or-nothing" fashion. If a rule applies, and it is a valid rule, the case must be decided in accordance with it. A principle, on the other hand, gives a reason for deciding the case one way but not a conclusive reason. A principle may be a binding legal principle, and may apply to a case, and yet the case need not necessarily be decided in accordance with the principle. This is because principles conflict and must be weighed against each other. 2. Valid rules cannot conflict. If two rules appear to conflict, they cannot both be treated as valid. Legal systems have doctrinal techniques for resolving such apparent conflicts of valid rules e.g. the maxim lex posterior derogate priori. Legal principles, on the other hand, can conflict and still be binding legal principles. 3. Because they can conflict, legal principles have a dimension of weight or importance which rules do not have. When principles intersect, one who must resolve the conflict has to take into account the relative weight of each. This cannot be of course an exact measurement and the judgment that a particular principle is more important than another will often be a controversial one. Nevertheless it is an integral part of the concept of a principle that it has this dimension, that it makes sense to ask how important or how weighty it is. Rules do not have this dimension. We can speak of rules as being functionally important or unimportant in which sense one legal rule may be more important than another because it has a greater or more important role in regulating behaviour. But we cannot say that one rule is more important than another within the system of rules, so that one supersedes the other by virtue of its greater weight. 4. If two rules conflict, one of them cannot be a valid rule. The decision as to which is valid, and which must be abandoned or recast, must be made by appealing to considerations beyond the rules themselves. A legal system may regulate such conflicts by other rules, which prefer the rule enacted by the higher authority, or the rule enacted later, or the more specific rule, or something of that sort. A legal system may also prefer the rule supported by the more important principles. Thus, rules are either valid or not valid: there is no question of one rule "outweighing" another. But principles must be balanced against each other. Dworkin uses this distinction between rules and principles to launch a two-pronged attack on positivism, namely: (1) by concentrating on rules to the exclusion of principles, he claims, positivism ignores the impact of principles on the decisions of even those cases where the relevant rules are clear; and (2) it exaggerates the role of judicial discretion in cases in which the relevant rules are not clear. Principles and positivism Dworkin says that in cases like Riggs19 and Henningsen19 principles play an essential part in arguments supporting judgments about particular legal rights and obligations. After the case is decided we may say that the case stands for a particular rule. But the rule does not exist before the case is decided; the court cites principles as its justification for adopting and applying a new rule. Now, if we accept the Dworkinian analysis it becomes clear how Hart's theory cannot accommodate principles. At this point, it may be argued against Dworkin that it is not enough merely to state that Hart does not mention legal principles. That does not mean that the notion of principles is inconsistent with Hart's theory. Why should it not be taken as just supplementing, as making a useful addition, to Hart's theory? The answer to this objection is that a case like Riggs19 may not even qualify as a hard case in Hart's theory, since for Hart, hard cases are those where the law is uncertain, and this uncertainty is caused by the open texture of language, meaning thereby that the case does not fall clearly within or without the wording of the relevant rules. But this argument, of course, cannot provide an adequate account of the problem faced by the court in Riggs19 for the case was not at all concerned with the exact range of application of any particular word or words. On this, an alternative argument may be advanced that Hart could meet this challenge by conceding that in some cases legal standards conflict and that this special type of conflict cannot be explicated by reference even to the "open-texture" thesis. However, it is here that the importance of Dworkin's attack on the master rule, that is, the rule of recognition becomes clear. Dworkin stresses that legal principles cannot be identified by reference to anything resembling Hart's rule of recognition. He says that a principle may already be a legal principle notwithstanding the fact that it has not been so formulated or laid down by a court. For example, let us assume that no judge has ever mentioned the principle that no man shall profit from his own wrong, but, according to Dworkin, it might still be possible to demonstrate that the principle is an existing legal principle if one can show that the principle provides an appropriate justification for a number of established black-letter rules and decisions. Therefore, we cannot identify principles simply by consulting certain sources, but only by engaging in a moral or political discussion as to what principles should be invoked to justify the black-letter rules of law24 Dworkin may be understood to establish his first point as follows: judicial reasoning of the kind used in Riggs19 and Henningsen20, in which established legal rules are qualified by invoking considerations of morality and justice, is regarded as proper by lawyers and judges. There may be some disagreement about when the courts should depart from

6 clear rules in the light of such principles, but the reasons advanced for so doing are not dismissed as legally irrelevant. In fact, a failure to take such factors into account would often be regarded as judicial oversight or error. Such principles may not determine a particular decision, but they do have some influence and cannot be ignored. In this sense, we can say that principles are binding on judicial decisions. As for the second point, he says that judges and lawyers in the normal course of practice think of judicial reasoning as a process of discovering what the law has to say about particular cases and not as a way of making law. Â Â Â Â Â (emphasis supplied) According to positivism, Dworkin stresses, law consists only of rules and not principles, and thus in deciding cases in which the relevant rules do not yield a determined result, judges exercise discretion and make new law. But, he claims, this is not the case. Principles supplement rules; they provide guidance for judicial discretion, and they operate to eliminate indeterminacies. A theory that ignores principles will accordingly imagine the law to be indeterminate when it is not and that judges make law when they do not and the positivist, therefore, exaggerates the role of judicial discretion. Judicial discretion In Dworkin's view, the positivist doctrine of judicial discretion is that if a case is not controlled by an established rule, the judge must decide it by exercising discretion25 Here, to be fair to the positivist, it must be said that he does not deny that judges sometimes do decide cases by referring to moral values but what he does claim is that moral values need not be applied to find out what the existing law is: this can be determined by reference to the sources of rules as specified by the rule of recognition. Sometimes when the established rules do not give a clear answer, the judge must decide the case by laying down a new rule, and while doing so, he refers to moral or social policy considerations. Thus, where the law does not give an answer, the judge must step outside the law26 The whole idea of judicial discretion, as conceptualised by the positivists, is vigorously attacked by Dworkin for whom the concept of discretion is at home in only one sort of context: when someone is in general charged with making decisions subject to already existing standards. In his own words27: "It makes sense to speak of the discretion of a sergeant who is subject to orders of superiors, or the discretion of a sports official or contest judge who is governed by a rule-book or the terms of the contest. Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction. It is therefore a relative concept." Â Â Â Â Â (emphasis supplied) Thus, taking for instance, the example of the power of courts to depart from their own earlier decisions: if principles are taken as forming part of the law, we may regard a decision of a court to depart from earlier precedents as itself regulated by legal principles. On this view, a court may alter the established legal rules only in the implementation of legal principles. That even while altering the legal rules, the judge is applying the law. But if we hold that principles are not a part of the law, we must say that judges may depart from earlier decisions when, in the exercise of their discretion, they think it best to do so. If, however, judges can alter established rules in this way whenever they think it best (on moral or social policy grounds), can they be said to be bound by rules at all? Thus, Dworkin famously argues, if principles are not part of the law, rules are not binding. And, if we reject the idea that legal principles form a part of the law, the positivist view of the law as black-letter rules is reduced to a thoroughgoing "rule scepticism"28 Furthermore, he asserts that the view that principles are merely extra-legal considerations applied by courts in the exercise of discretion is incompatible not only with the idea of binding rules, but also with the idea that courts enforce the rights of the parties in a given case. Dworkin argues that we regard courts as enforcing the plaintiff's or the defendant's rights and not as deciding to benefit the plaintiff at the defendant's expense or vice versa. That is to say, the courts enforce pre-existing legal rights and obligations and do not create them ex post facto. But if principles are not part of the law, as is maintained by the positivists, the courts in hard cases (which would, according to Dworkin, certainly include the majority of cases reaching an appellate level) exercise discretion; and if a court has a discretion about how it will decide a case, the parties cannot have a right to any particular decision. But the truth is that we do think of courts as enforcing rights, and that is evidenced by the form of legal arguments before courts. So, we can refuse to admit principles as part of the law only by radically revising the way we speak and think about law. Summary and critique Summary Before attempting to critique the Dworkinian assault on positivism, the author feels it best to allow Dworkin himself to summarize his critique of positivism, who has the following to say29: "I argued that the central propositions of the legal theory I called positivism were in error and must be abandoned. In particular, I argued that it is wrong to suppose, as the theory does, that in every legal system there will be some commonly recognized fundamental test for determining which standards count as law and which do not. I said that no such fundamental test can be found in complicated legal systems, like those in force in the United States and Great Britain, and that in these countries no ultimate distinction can be made between legal and moral standards, as positivism insists."

7 Further30: "I said that the thesis that there exists some commonly recognized test for law is plausible if we look only at simple legal rules of the sort that appear in statutes or are set out in bold type in textbooks. But lawyers and judges in arguing and deciding lawsuits, appeal not only to such black-letter rules, but also to other sorts of standards that I called legal principles, like, for example, the principle that no man may profit from his own wrong. This fact faces the positivist with the following difficult choice. He might try to show that judges, when they appeal to principles of this sort, are not appealing to legal standards, but only exercising their discretion. Or he might try to show that, contrary to my doubts, some commonly recognized test always does identify the principles judges count as law, and distinguishes them from the principles they do not. I argued that neither strategy could succeed." Critique and comments Coming to the criticism of Dworkinian views, a beginning can be made by noting the observation of Professor Sartorius who has pointed out that if, according to Dworkin, judges have a duty to use some principles but not others, or to assign a given weight to one principle but not a greater weight, it follows that Dworkin himself is committed to the idea that there is a fundamental test for law. That Dworkinian theory itself depends upon some notion of a basic rule of recognition31 In response to this objection, Dworkin asserts that Hart's theory of the rule of recognition does not simply claim that there is a criterion distinguishing law from non-law. Hart must claim, according to Dworkin, that laws are identified by pedigree and not by content, that is, a rule counts as law not because it is just or fair (a matter of its content) but because it has been laid down in a statute or established in a case (a matter of source or pedigree). Hart says that the whole point of having a rule of recognition is to provide a body of publicly ascertainable rules, in the sense that we can work out what the rules are without falling back on our value judgments about justice or right (moral) which, according to Dworkin, only makes sense if the rule of recognition identifies the law by criteria of pedigree. If the rule of recognition said something like "all those rules which are just are legal rules", it would provide no greater certainty than do our differing views of justice. Legal principles are not identified by their pedigree in that it is not necessary that a principle should have been laid down in a statute or a case. In his own words32: "... a principle is a principle of law if it figures in the soundest theory of law that can be provided as a justification for the explicit substantive and institutional rules of the jurisdiction in question". By this Dworkin means that the judge who formulates a legal principle for the first time does so as an existing part of the law and not as a legislative innovation of his own. In general, principles are identified by showing that they are embedded in the established rules and decisions, in the sense that the principle provides a suitable justification for the black-letter rules. Dworkin describes a hypothetical judge, called Hercules who, while deciding a hard case33 begins by constructing a theory of law applicable to his jurisdiction. This theory of law will consist of an elaborate moral and political justification of the legal rules and institutions of the jurisdiction. Thus while dealing with settled rules about, for example, legislative supremacy, Hercules will need to work out a body of principles that will justify these rules. He must ask, "what moral principles would serve to justify the doctrine of legislative supremacy". This will inevitably require an elaborate consideration of the moral and political theory that seems to form the basis of the rules about legislative supremacy. Now, the criterion that, according to Dworkin, distinguishes a legal from a non-legal principle is that a principle can be a legal principle if it forms a part of the theory of law that can be offered as a justification for the established legal rules and institutions. Dworkin says that constructing such a theory is inevitably a controversial matter involving complex issues of moral and political theory. But it differs fundamentally from the process of identifying laws by reference to their sources as envisaged by Hart. According to Hart's theory, we identify valid rules by reference to the basic rules of recognition, but the basic rule of recognition is identified by reference to the empirical facts of official behaviour. In this way, the content of the law can be established by a purely empirical inquiry, without asking any controversial moral questions. But this assumes that a judge, called upon to apply a rule by reference to the rule of recognition, will apply the rules accepted by his fellow judges. This is fundamentally different from the position of Hercules who must decide for himself which body of principles provides the best justification for the established laws. This is broadly the position that Dworkin takes against Hart's rule of recognition. It is felt, however, that the Dworkinian assertion about positivists holding that law must be identified by tests of pedigree only rests on a rather narrow reading of Hart's theory. Hart, while talking about a rule of recognition conclusively validating legal rules, deals specifically with the hypothetical transformation of a "pre-legal" community into one having a legal system. He says that the introduction of a rule of recognition provides a public test for identifying primary rules of obligation which earlier existed only by general acceptance, and thus eliminates uncertainty about them34 Hart's language emphasizes the elimination of uncertainty and nowhere does he suggest that the tests employed by officials must be logically conclusive. It is submitted that Dworkin's claim that positivists are preoccupied with the pedigree and are consequently blind to tests of rules based on content may be true of Austin, but it does not appear true of Hart. Hart holds that it is not necessary that a rule must satisfy particular moral standards to be a legally valid rule; but does the fact that qualification by virtue of "content" need not occur mean that it cannot occur? Let us take an example from the Indian legal system where judges determine the validity of enacted rules by considering their compatibility with the provisions of

8 the Constitution. The Constitution requires interpretation, and some of its parts, for example, Articles 14, 19 and 21 are understood in moral terms also, such as fairness, reasonableness and equality. It is standard practice for officials (judges) to engage in moral reasoning when interpreting these provisions and thus determining what is to count as law. This reasoning involves the sensitive matter of identification and weighing of diverse considerations. But is it incompatible with Hart's theory of the rule of recognition? The author feels that it is not so. Of course, the rule of recognition, being a touchstone for the validity of legal rules, does not dictate or control their "content". At the same time, however, it does not eliminate the scope for applying tests that are not tests solely of pedigree. It is reiterated that just because qualification by virtue of "content" need not occur in Hart's theory, it does not necessarily entail that such qualification cannot occur or does not occur when the judges engage in moral reasoning. Now we turn our attention to the attack on the doctrine of judicial discretion. Dworkin seems to suggest not only that principles eliminate some indeterminacies in the law but also that they eliminate all indeterminacies, for he rejects entirely the idea of judicial discretion. He appears to assume that anyone who accepts the idea of judicial discretion cannot acknowledge the existence of legal principles at all, or must hold that principles cannot eliminate uncertainties because they are to be weighed against each other. But can his conclusion that principles eliminate all indeterminacies be validly drawn? The author feels that the answer can only be in the negative. In order to eliminate all indeterminacies in the law, principles must cover all cases that might arise. Further, they must have determinable weights. Thirdly, the balancing process in which principles are weighed against each other must never yield an equal weight to conflicting principles on either side of a legal question. It is only when all these conditions are satisfied that we can countenance the total rejection of judicial discretion. There is no reason why one cannot acknowledge the existence of legal principles without believing that such principles eliminate all indeterminacies and with them any occasion for the exercise of judicial discretion. One last point about Dworkin's critique of positivism: let us suppose that his judge Hercules is faced with a hard case on contract. Now let us further suppose that there are many well-established rules relating to consideration in contract: somewhat like the Indian law on contracts according to which promises are not binding, except in some exceptional cases, unless supported by consideration. Hercules will now have to construct a theory of contract i.e. a justification for the established rules of contract law, giving an account of the conception of justice on which (in Hercules's opinion) contract law is based. Now let us further assume that Hercules holds the personal, "moral" viewpoint that all promises must be held to be binding, regardless of consideration. That no one should be allowed to dishonour a promise only because such a promise was not supported by consideration. But can Hercules's theory treat as mistakes all legal rules stipulating that promises are not binding without a consideration? The answer again, can only be in the negative, for according to Dworkin, Hercules's theory will have to provide a justification for existing black-letter rules. He may perhaps treat a couple of them as mistakes but he cannot reject the entire body of rules, and therefore he will have to link the binding nature of contracts to the existence of consideration. Now, is there then not a difference between Hercules's view of what morality requires and of what the law requires? Does it not follow that the Dworkinian theory is perfectly consistent with the "separation of law and morals" or the distinction between what the law "is" and what it "ought to be", as asserted by positivists35? These are some arguments that require answers from Professor Dworkin. * LLM (Cambridge), Kochhar & Co., Advocates and Legal Consultants, S-454, Greater Kailash II, New Delhi , India Return to Text - Dworkin argues that law must provide for the future while keeping the "right faith with the past". His idea of law as integrity takes a temporal dimension as well: law has integrity or coherence over time. Return to Text - N.E. Simmonds, Central Issues in Jurisprudence (London: Sweet and Maxwell, 1986), p. 97. Return to Text - R.M. Dworkin, "Is Law a System of Rules?", The Philosophy of Law R.M. Dworkin (Ed.), Oxford: OUP, 1977, p. 43. Return to Text - See generally, H.L.A. Hart, The Concept of Law (Oxford: OUP, 1961), pp Return to Text - See generally, J. Austin, The Province of Jurisprudence Determined H.L.A. Hart (Ed.), Oxford: OUP, 1955, pp. 9-33, Return to Text - Hart does not provide any detailed lists citing examples of primary or secondary rules, and limits his analysis only to a general discussion of them. See generally, Hart, supra fn 4, pp Return to Text - Ibid., p Return to Text - On this, a parallel may be drawn between Hart's "rule of recognition" and Kelsen's "ultimate norm", the Grundnorm. It will be remembered that for Kelsen the legal system is a hierarchical pyramid of norms where every lower norm derives its validity from the norm above it. This process of validation continues till the top of the pyramid, which is adorned by the Grundnorm, is reached. Kelsen has stated, in responding to critics posing the question, as to what validates the Grundnorm, that the validity of the Grundnorm is "presupposed". These arguments, of both Hart and Kelsen, however,

9 are open to criticism on several grounds. See generally, Julius Stone, Legal System and Lawyers' Reasonings (Indian Reprint, Universal: ULP, 1999), pp Return to Text - Ibid., pp Return to Text - It might be interesting to speculate whether Hart's choice of the word "general" is not pregnant with significance, in that it might be a subtle, even Freudian reference to Rousseau's "general will", in which case, Hart's statement that legal rules "need not be generally accepted in order to be valid" would reflect how thoroughgoing the disavowal of the need for moral legitimation for legal rules to acquire their legal character is. Return to Text - Ibid., p Return to Text - Ibid., p Return to Text - He says, "Positivism has a few central and organizing propositions as its skeleton, and though not every philosopher who is called a positivist would subscribe to these in the way I present them, they do define the general position I want to examine." Dworkin, supra fn 3, p. 38. Return to Text - Ibid. Return to Text - Dworkin says that to the positivist, legal rights and duties are laid down by legal rules, so that when rules have no determinate application, there are no pre-existing rights or duties to be enforced. Return to Text - Dworkin, supra fn 3, p. 42. Return to Text - Ibid., p. 43. Return to Text - Ibid., p. 43. Return to Text NY 506, 22 NE 188 (1889) Return to Text - 32 NJ 358 (1960) Return to Text - Ibid., p Cited from David Lyons, "Principles, Positivism, and Legal Theory", 87 Yale Law Journal, 415 (1977) reviewing Ronald Dworkin, Taking Rights Seriously (Cambridge: HUP, 1977). Return to Text - Dworkin, supra fn 3, p. 45. Return to Text - Simmonds, supra fn 2, p. 98. Return to Text - Ibid. Return to Text - Dworkin, supra fn 3, p. 54. Return to Text - The entire conflict between the positivist and Dworkinian accounts may be said to be centred around this issue: positivists hold that where the law is uncertain, the judge ventures outside the law and decides disputes by exercising his discretion whereas Dworkin maintains that even while exercising discretion the judge applies "the law" by resorting to legal principles. Return to Text - Dworkin, supra fn 3, p. 52. Return to Text - "Rule scepticism" or "legal realism" holds, it will be remembered, that rules are of no real importance and that judges may set aside the established law whenever they think it best on the whole to do so. That judges are not bound by rules at all. See generally, K.N. Llewellyn, "The Normative, the Legal and the Law â Jobs: The Problem of Juristic Method", 49 Yale Law Journal, 1355 ( ). Return to Text - R.M. Dworkin, "Social Rules and Legal Theory", 81 Yale Law Journal, 855 (1972), p Return to Text - Ibid. Return to Text - Ibid., p Return to Text - Ibid., p Return to Text - That is, a case that cannot be straightforwardly resolved on the basis of determinate black-letter rules. Return to Text - See generally, Hart, supra fn 4, p. 100 et seq. Return to Text - Ed.: What has been pointed out by the author does create problems for Dworkin, but it does not lead to the conclusion drawn by him, namely that the Dworkinian theory is consistent with the "separation of law and morals". The point of divide between Dworkin and positivists is whether there are any necessary connections between law and morals viz. whether law can be law if it is immoral or amoral. What the learned author has pointed out, and which creates serious problems for Dworkin, is that it may be hard for Hercules to determine what is law in a given situation because there may be a plurality of views as to what the moral answer is in that situation. This is so since according to Dworkin law is law only if it is morally legitimate â but if there are many moral answers â and some directly at odds with each other, how are we to know what is morally legitimate (and hence law)? But this does not make Dworkin a positivist. What has been pointed out by the author raises non-trivial philosophical issues that Dworkin must face since he must take a stand on the ontological nature of moral truth; and it would seem that Dworkin's theory of what is law can only work if moral truth is objective. But the ontological nature of moral truth is (one of) the most spiritedly disputed and unsettled issues in philosophy. Return to Text