Gennaris Zughbi
Professor
Thompson
Final Paper
“I am Ronald
Drowkin”
Hello my name is Ronald Dworkin and I am a
scholar of constitutional law and a very well known
American Philosopher. I have been a professor at some of the top schools in the
world such as Oxford University and Yale Law School. In 2007, I received the international
Memorial prize of Humanities for my pioneering scholarly work of worldwide
impact. I would say I’m a very influential contributor to both political
philosophy and philosophy of law. The Journal of legal studies survey
considered me to be the second most cited American legal scholar of the 20th
century.
My theory
of the law, in which judges understand the law in terms of consistent and
shared moral principles, especially justice and fairness, is among the most
influential contemporary theories about the nature of law. I supported a moral
reading of the US Constition, and interprvitist approach to law and
morality. I’m a frequent commentator on contemporary political and legal
issues, particularly those concerning the US Supreme Court.
I’m sure you are also interested knowing more of my early life and education
before I became one of the most cited American legal scholars of the twentieth
century so here’s a little information. I was born in 1931 in the small town of
Providence, Rhode Island in the United States, and the son of Madeline
Talamo and David Dworkin. I studied at Magdelen College and at Harvard
University, and Oxford was where I was a Rhodes Scholar. After I completed
my final year's exams at Oxford, the examiners were so fascinated with my
script that the Chair of Jurisprudence was summoned to read it. Then I attended
law school at Harvard and subsequently clerked for Judge Hand of
the 2nd circuit US Court of Appeals. Judge Hand would later called me the
finest clerk he ever employed (specifically), "the law clerk to beat all
law clerks" and I would recall Judge Hand as an enormously influential
mentor.
I would say I’m most famous for my critique of the legal positivism of
Harts. I sets forth the fullest statement of his critique in his book
Law's Empire. My theory is intepretive; the law is whatever follows from a
constructive interpretation of the institutional history of the legal system. I
argue that moral principles that people hold dear are often wrong, even to the
extent that certain crimes are acceptable if one's principles are skewed
enough. To discover and apply these principles, courts interpret the legal data
(legislation, cases etc.) with a view to articulating an interpretation that
best explains and justifies past legal practice. All interpretation must
follow, I argue, from the notion of law of integrity to make sense. Out of
the idea that law is 'interpretive' in this way, I argued that in every
situation where people's legal rights are controversial, the best interpretation
involves the right answer thesis. I oppose the notion that judges have
discretion in such difficult cases.
My model of legal principles is also connected with Hart's notion of the rules
of recognition. I reject Hart's conception of a master rule in every legal
system that identifies valid laws, on the basis that this would
entail that the process of identifying law must be uncontroversial,
whereas (I argue) people have legal rights even in cases where the correct
legal outcome is open to reasonable dispute. While I move away from
positivisms separation of law and morality, my concept suggests that the
two are related in an epestimic rather than ontological sense as
posited by traditional natural law.
“Positivism's
most significant critic rejects the theory on every conceivable level. He
denies that there can be any general theory of the existence and content of
law; he denies that local theories of particular legal systems can identify law
without recourse to its merits, and he rejects the whole institutional focus of
positivism. A theory of law is for Dworkin a theory of how cases ought to be
decided and it begins, not with an account of political organization, but with
an abstract ideal regulating the conditions under which governments may use
coercive force over their subjects.”
Suppose the legislature has passed a statute stipulating "sacrilegious
contracts shall henceforth be invalid." The community is divided as to
whether a contract signed on Sunday is, for that reason alone, sacrilegious. It
is known that very few of the legislators had that question in mind when they
voted, and that they are now equally divided on the question of whether it
should be so interpreted. Tom and Tim have signed a contract on Sunday, and Tom
now sues Tim to enforce the terms of the contract, whose validity Tim contests.
Shall we say that the judge must look for the right answer to the question of
whether Tom's contract is valid, even though the community is deeply divided
about what the right answer is? Or is it more realistic to say that there
simply is no right answer to the question?
I’d have to say one of my most interesting and controversial theses states that
the law as properly interpreted will give an answer. This is not to say that
everyone will have the same answer (a consensus of what is "right"),
or if it did, the answer would not be justified exactly in the same way for
every person; rather it means that there will be a necessary answer for each
individual if he applies himself correctly to the legal question. For the
correct method is that encapsulated by the metaphor of Judge Hercules. This
metaphor of Judge Hercules, an ideal judge, immensely wise and with full
knowledge of legal sources. Hercules (the name comes from a classical mythological
hero) would also have plenty of time to decide. Acting on the premise that the
law is a seamless web, Hercules is required to construct the theory that best
fits and justifies the law as a whole (law as integrity) in order to decide any
particular case. Hercules, I argue, would always come to the one right answer.
But here’s the thing, I don’t deny that competent lawyers often disagree on
what is the solution to a given case. On the contrary, I actually claim that
they are disagreeing about the right answer to the case, the answer Hercules
would give.
My critics argue not only that law proper (that is, the legal sources in a
positivist sense) is full of gaps and inconsistencies, but also that other
legal standards (including principles) may be insufficient to solve a hard
case. Some of them are incommensurable. In any of these situations, even
Hercules would be in a dilemma and none of the possible answers would be
the right one.
I defend my position saying that non-Herculean judges, much like everyday
people, find their way and choose between options and values that were
supposed to be incommensurable. I also argue that it is always possible to
find out other rules or principles to solve the conflict between those we had
in mind. The same counter-argument, however, regarding principles and moral
standards that are incommensurable, would seem to apply to any further
principles or rules we may discover in the process. In other words, the claim
that there may always be more principles or rules to be taken into account
proves nothing about the nature of those further principles, or about my claim
that the exercise, in the hands of the omnipotent Judge Hercules, will
eventually come to a stop (when we have reached the right answer). In fact, the
opposite conclusion could just as well be drawn from my claim that the exercise
in question, under the guidance of such an omnipotent figure, would extend into
infinity. Thus while a "right" answer may be available at any given
stage, no final right answer would ever be arrived at by Hercules. Or, there is
nothing to suggest one way or the other.
My right answer thesis turns on the success of my attack on the skeptical
argument that right answers in legal-moral dilemmas cannot be determined. My,
you would say, “anti-skeptical” argument, is essentially that the properties of
the skeptic’s claim are analogous to those of substantive moral claims, that
is, in asserting that the truth or falsity of "legal-moral" dilemmas
cannot be determined, the skeptic makes not a metaphysical claim about the way
things are, but a moral claim to the effect that it is, in the face of
epistemic uncertainty, unjust to determine legal-moral issues to the detriment
of any given individual.
I have also made important contributions to what is sometimes called the
equality debate. In a famous pair of articles and in my book Sovereign
Virtue, I advocate a theory I call 'equality of resources'. This theory
combines two key ideas. Broadly speaking, the first is that human beings areresponsible for
the life choices they make. The second is that natural endowments of
intelligence and talent are morally arbitrary and ought not to affect the
distribution of resources in society. Like the rest of my work, my theory
of equality is underpinned by the core principle that every person is entitled
to equal concern and respect in the design of the structure of
society.
My analysis of law is essentially ideal and shows an agile type of
intelligence. I make very interesting points even thought it took me a while to
arrive at what my theory really is. I believe that my novelty and witty remarks
are amazing. Some of my readers may consider me to be a rambler, but do agree
that most of the points I make, stand out.
I believe that there are several strengths in my theory, especially when
compared to a positivist’s perspective. My theory is an attempt to bridge the
inadequacies and anomalies present in the positivist approach as espoused by
theorists like Herbert Hart. I will give you an overview of my theory followed
by a summary of the main elements of Hart’s. I will also like to discuss the
differences between the main propositions of mine and Hart’s with a particular
focus on my constructive interpretation and my challenge of Hart’s views on
judicial discretion.
As I’ve
mentioned earlier, I have become an influential legal theorist of this
generation, and have developed a sophisticated alternative to legal positivism.
My theory is an “interpretive theory of law,” primarily asking the quintessential
question of whether there is truth in interpretation and judgment. Essentially
humans understand that disagreement is inherent in many aspects of life,
especially when looking at provisions within the law. It seems that
disagreements in interpretation are endless and the fact that a judge cannot
say anything other than, "he sees it this way, or he sees it
differently," does not sit well to me within a legal argument. The first
principle of my theory suggests that saying that there is no truth at all is
skeptic and is just another judgment or position. The most that one can say is
that there is an inherent disagreement because through saying that there is no
truth, this develops another truth, resulting in a convoluted and circular
argument. My answer to this issue is that humans have a personal responsibility
to interpret. I strongly suggest that judges are simply interpreting against a
backdrop of everyone who has interpreted before. My argument does not refute
legislative intent but instead suggests there is reason to think that the
legislature is capable of intentional action. I use the metaphor of an iceberg
to compliment my theoretical answer. In other words, I suggest that the
judgment is merely the tip of an iceberg and the build up to the tip is a
concoction of other interpretations, and this build up is just as important as
the climactic tip. As my interpretive theory suggests, this, in fact, is how
truth arises; the shared responsibility of interpretation over time is what
gives the judgment truth. This theory contradicts the opinions of a positivist
because I concentrate more on judicial action and interpretation as compared to
the positivists.
Positivism revolves around the idea that legal systems are posited, created by
people rather than having a natural or metaphysical existence. It is based on
the idea that a, descriptive or at least morally neutral theory of law is both
possible and valuable. The central question of legal positivism is what is law,
not what the law should be, the existence of law is one thing; its merit or
demerit is another. Hart is known as one of the prominent theorists in
positivism, and is known for moving positivism forward from the initial ideas
developed by Austin. Hart criticized Austin’s theory in suggesting that it did
not look at the internal point of view; it did not question the difference
between being obliged and having an obligation. On this point, Hart suggested
that law is connected to having an obligation to act as the law tells us to.
Harts approach
is the internal aspect of rules and laws in which he rejects sovereignty as
itself being a necessary feature of the legal system. The theory which Hart
developed is grounded on his concept of rules, and how they differ from habits.
In this way, he consequently divides his theory into two groups, primary and
secondary rules which are joined and made coherent by a superior rule. Hart’s
overriding superior rule, is the rule of recognition which he develops as the
basic source of authority in any legal system. Hart most importantly argued
that there are two necessary conditions for the existence of a legal system:
“That the valid rules of the system must be generally obeyed, and that the
criteria set forth in the systems rule of recognition must be effectively
accepted as common public standards of official behavior by its officials.”
There
are many differences between my and Harts theories. The essential issue of
disparity is the question of what makes the rule of recognition valid. Hart
suggests that the rule of recognition is assumed by the officials of the legal
system, and it is at this point in which I find his first point of difference
with legal positivists. I argue for the, existence of legal principles, and
Hart argues that, “there will inevitably arise cases that do not fall clearly
under a rule, but concede a rule of recognition could deny judge’s discretion
to make law in such cases by requiring judges to disclaim jurisdiction or to
refer to points not regulated by the existing law to the legislature to
decide.” I say that the propositions of law are true if the figure in or follow
from the principles of justice, fairness and procedural due process that
provide the best constructive interpretation of the community’s legal practice.
Through this, I find a weakness in Hart’s theory, which is umbrage with this
idea of discretion as it contradicts the basic tenets of democratically elected
parliaments creating laws. Contrastingly, I attempt to, term law as integrity.
Although Hart suggests that the rule of recognition relies upon the attitude of
the systems officials, and thus begging the question of who or what makes the
officials official, I believe that this positivist approach gives judges too
much discretion in their judgment, allowing them to be the legislature and
giving them too much power.
I
conclude that there is no law beyond the law and that law and morals are
inextricably interwoven. I suggest that judges look at principles that emanate
from the cases, and the general principles in this case rely on morality and
the sense that you should not benefit from your own wrong. These are not rules
I conclude, these are principles. I say that the judge’s role is not to
consider policy, a judge should weigh principles about individual’s rights.
Therefore, judges should weigh principles and then they make the judgment
justifying why they chose one principle over another. I highlight that law as
interpretation results in no gap in law; rather it is an ongoing narrative of
weighing principles. My aim is to create a community under the law, in the
sense that everyone should abide by the law and come to court as equals
battling out principles which have been historically embedded in previous case
law.
It is essential to discuss the distinction between rules and principles, a
concept which varies between both theories of law. One of my principle ideas is
the importance of principles. I ascertain that it is the task of the judge to
actually find a coherent set of principles, which will justify their decision.
The legal question and analysis results in a moral and principled outcome, this
is the bench mark which I develop through my theory, the guiding principles are
selected, in the way that fairness requires. Therefore, based on Hart’s
approach, I have clearly set out the weaknesses from such theories as has been
discussed above. My ability to scope so deeply into the positivists way of
legal theory and discover the weaknesses which it possesses is very clever and
intelligent. Therefore, as commentators note, I am “probably the most
influential...legal theorist of this generation...(and) has developed a
sophisticated alternative to legal positivism.” And I’m very proud of
that.
