[3.5.] Dworkin’s Constructivism.[1]

 

We will now consider a third position (in addition to legal formalism and legal realism) in the debate about legal reasoning.

 

This third position was introduced by Ronald Dworkin (b.1931 in Massachusetts):[2]

·         perhaps the most important living philosopher of law

·         bachelor’s degrees from Harvard and Oxford; law degree from Harvard

·         worked as a law clerk for Learned Hand (1872-1961; a federal judge for 52 years; never appointed to the U.S. Supreme Court, but viewed as a greater jurist than many who were)

·         succeeded H. L. A. Hart as professor of jurisprudence at Oxford in 1969

·         currently a professor at both University College London and NYU (at both NYU’s philosophy department and its law school)

·         major works include: Taking Rights Seriously (1977), A Matter of Principle (1985), Law's Empire (1986), Philosophical Issues in Senile Dementia (1987), A Bill of Rights for Britain (1990), Life's Dominion (1993), and Freedom's Law (1996).

·         co-author of “Assisted Suicide: The Philosopher’s Brief” (1997; in your textbook, pp.344 ff.; we’ll be reading this soon)

 

Dworkin’s theory, constructivism (also known as interpretivism), is an account of judicial reasoning. So it is correctly viewed as an alternative to legal formalism and legal realism.

 

But Dworkin at times describes it as a form of natural law theory, indicating that it may also address the issue of the connection between morality and law (as well as the question of the relation between the formalism/realism debate and the positivism/natural-law debate).

 

 

[3.5.1.] Rules, Policies, Principles.

 

The first aspect of Dworkin’s thought which we will consider is his distinction among rules, principles and policies (to be defined momentarily).

 

In making this distinction, he seems to be entering into the debate over the nature of law (what makes a principle a law? what makes a system of principles a legal system?).

 

This is because, in introducing the distinction, he takes himself to be improving on Hart’s definition of law as a union of primary rules (rules of obligation) and secondary rules (rules of recognition, change, and adjudication).

 

Hart, a legal positivist, provided a definition of law that included no moral components. In other words, on Hart’s view there are no moral standards that a system of rules has to meet in order to be a genuine legal system; it need only include both primary and secondary rules.

 

(This is very different than Fuller’s account of law. Fuller, the procedural natural lawyer, held that there are eight moral standards—“principles of legality”—that a system must meet for it to be a genuine legal system.)

 

On Dworkin’s view, Hart’s account is incomplete. A complete account of judicial reasoning will include something other than rules. It will also include (what Dworkin calls) principles:

 

principle (broad sense) (df.) “standards other than rules” used by lawyers and judges in decision making.

 

Dworkin identifies two such types of principle: policies and principles (narrow sense):

 

policy (df.): a “standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community (though some goals are negative, in that they stipulate that some present feature is to be protected from adverse change).” E.g., “the standard that automobile accidents are to be decreased.” (144, emphasis added)[3]

 

principle (narrow sense) (df.): a “standard that is to be observed ... because it is a requirement of justice or fairness or some other dimension of morality.” E.g., “automobile manufacturers must be held to higher standards than other manufacturers” because of the nature of their product.[4]

 

Where do principles (in the broad sense) come from?

·         Judges do not simply pull them out of thin air; in particular, they do not simply rely on whatever principles they themselves might think are required by morality.

·         They are grounded in “(exemplified, quoted or somehow supported by) past official acts (for example, the text of statutes, judicial decisions, or constitutions). ... judges are told to decide cases based not on whatever principles (critical) morality might require, but rather based on a different and perhaps inconsistent set of principles: those cited in, or implicit in, past official actions.” (Bix, p.234-5, emphasis added)

 

To illustrate the distinction between rules and principles, Dworkin refers to Riggs v. Palmer (1889), a decision of the New York Court of Appeals:

·         Elmer Palmer knew that his grandfather was leaving him a large sum of money in his will, but he began to fear that his grandfather would change the will and leave him nothing.

·         Before that could happen, Elmer killed his grandfather, by poisoning him.

·         Of course, there were criminal laws governing the killing itself, but there were no laws preventing Elmer from keeping the inheritance.

·         Two of Elmer’s aunts sued in civil court to prevent Elmer from getting the inheritance.

·         The majority opinion, written by Judge Robert Earl, held that Elmer should be denied his inheritance. Earl relied on the idea that “No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” (139)[5]

·         This idea is a principle in Dworkin’s narrow sense: a standard that a judge observes because it is a requirement of justice (rather than of positive law).

 

In insisting that legal systems include such (moral) principles, Dworkin is in effect rejecting legal positivism and adopting natural law theory.

 

 

[3.5.2.] Fewer “Gaps” in the Law.

 

According to Dworkin, Hart’s view (that law consists only of rules) implies that there is not enough law to cover all cases.

 

If Hart is right, then there are numerous “gaps” in the law about which judges have to use their discretion. When a judge encounters a case that is not covered by an existing rule, he or she has discretion as to what decision to make, in effect making new law. So Hart’s legal positivism implies that judges sometimes act as deputy legislators, filling in gaps by “enacting the law that they suppose the legislature would enact if seized of the problem.” (146)[6]

 

But if Dworkin’s principles as part of the law, then there is an abundance of law and far fewer “gaps.” As Dworkin sees it, the law includes principles not all of which have been stated explicitly anywhere in the black letter, positive law. Judges have those principles to rely on, so there are far fewer gaps than there would be were Hart’s account true.

 

 

[3.5.3.] Competing Principles.

 

However, this does not mean that judicial reasoning is a simple matter. Identifying which principles ought to be applied in a given case is no easy task.

 

One way in which it is difficult is that in a given case, one principle might favor making one decision, while a different principle might favor making another. What happens when there are competing principles, principles that pull in different directions for a given case?

·         E.g. the principle that car manufacturers must be held to higher standards than other manufacturers, vs. the principle that competent individuals have a basic freedom to enter into binding contracts.

 

To understand what happens in the case of competing principles, consider the following:

 

Legal rules are “all-or-nothing.” Either the facts of a given case fall under a given rule (the rule definitely applies) or they do not (the rule definitely does not apply). They are like the rules of baseball: “three strikes and you’re out” allows for no exceptions.

 

Legal principles are not all-or-nothing. Rather, they have “weight,” and weight comes in degrees. More specifically, principles come in varying degrees of importance. This makes it possible to compare one against the other and ask which is the more important when they come into conflict and one must take precedence the other:

 

When principles intersect (the policy of protecting automobile consumers intersecting with principles of freedom of contract, for example), 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 or policy 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. (145, emphasis added)[7]

 

 

[3.5.4.] Constructive Interpretation.

 

·         Dworkin developed his constructivism most fully in his book Law’s Empire (1986).

·         The relevant reading in your textbook is from his 1982 article “Natural Law Revisited.”[8]

 

The practice of law involves what Dworkin calls “constructive interpretation.” This resembles the work of a literary critic interpreting a work of literature.

 

Constructive interpretation is both an imposition of form upon the object being interpreted (in the sense that the form is not immediately apparent in the object) and a derivation of form from it (in the sense that the interpreter is constrained by the object of interpretation, and not free to impose any form she might choose). (Bix p.236, emphases added)

 

Examples of this sort of interpretation are: looking at stars and “seeing” a constellation in the form of a mythic figure; looking at points on a graph and “seeing” a line that explains the data in terms of a correlation between variables.

 

In jurisprudence, the “object” to be constructively interpreted is the positive law:

·         case law (past judicial decisions and the reasoning given to support them)

·         statutes passed by legislatures

·         the texts of constitutions.

Dworkin calls this the pre-interpretive data. These are data to be explained, to be accommodated in a coherent “picture.”

 

A judge must sometimes choose between competing interpretations, each of which “fits” the data to some degree. In choosing, he or she must consider both

·         how well each interpretation fits (both might fit, but one might fit better than the other, i.e., might be more consistent with all the data);

·         which one has the greater moral value.

 

In some areas of law (estate law, property law), whether a decision fits better may be more important than its moral value.

 

In other areas (civil liberties), fit may be less important than moral value.

 

Dworkin compares legal interpretation to writing a chapter in a chain novel [see Simon pp.141-2].

 

“[L]egal claims ... interpret contemporary legal practice as an unfolding narrative.”[9]

 

In constructing such an interpretation, judges should try to maintain what Dworkin calls integrity: they “should decide cases in a way which makes the law more coherent, preferring interpretations which make the law more like the product of a single moral vision.”[10]

 

[The word “integrity” derives from the Latin “integr-”, meaning entire; in one of its contemporary senses, it refers to the state of being whole or undivided.]

 

Simon emphasizes the difference between this view and legal realism:

 

Realists see judges as going outside the law to their moral and political values to make decisions when the law does not provide a clear answer. Dworkin, on the other hand, sees judges in these hard cases as digging deeper into the law to find the strongest moral and political principles that could justify an authoritative decision.  ... [They do] not find the right answer in some transcendent reality, but internally, within the integrity of legal practice. (pp.139-40, emphases added)

 

Thus, Dworkin’s view is that “[a]mong the theories of what the law requires that adequately fit the relevant legal materials, the judge would then choose that theory which was morally best, which made the law the best it could be.” (Bix p.235, emphasis added)

 

What’s more, Dworkin’s view implies that “for nearly all legal questions, there [is] a unique right answer,” a best interpretation. (Bix p.235, emphasis added) Dworkin’s Hercules character is “a lawyer of superhuman skill, learning, patience and acumen” (147) who, in nearly all cases, be able to identify the one best decision. Dworkin invokes such a being to illustrate his claim that there is such a single correct decision in almost every case.

 

 

[3.5.5.] Dworkin as Natural Law Theorist.

 

A standard objection to Dworkin’s constructivism is as follows: Judges should not look at the law through “rose-colored glasses,” trying to see it in the best possible way, or as the best possible system. Rather, they should try their best to see law as it actually is.

 

Dworkin’s response is to say something like this:

 

...there is no simple description of law “as it is”; or, more accurately, describing law “as it is” necessarily involves an interpretative process, which in turn requires determining what is the best interpretation of past official actions. Law “as it is,” law as objective or non-controversial, is only the collection of past official decisions by judges and legislators (which Dworkin refers to as the ‘pre-interpretive data,’ that which is subject to the process of constructive interpretation). However, even collectively, these individual decisions and actions cannot offer an answer to a current legal question until some order is imposed upon them. And the ordering involves a choice, a moral-political choice among tenable interpretations of those past decisions and actions.[11]

 

This is the way in which Dworkin is a natural-law theorist: he holds that “moral evaluation is integral to the description and understanding of law,”[12] including to the description of judicial decision-making and to the way in which judges themselves come to understand the law. And that last idea explains how Dworkin’s theory is also an alternative to legal formalism and realism.

 

 

Stopping point for Monday March 5. No new reading for next time; we’ll have a review session for your test, which is next Monday (no class this Friday since I’m out of town for a conference).