Nigel Simmond -ronald Dworkin Summary.docx

DWORKIN – Nigel Simmonds Summary  

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Legal theorist disagree not only about the nature of law but also about the nature of legal theory Should such theory be a conceptual analysis lacking of contentious moral presuppositions? Or should a theory of law be grounded in a deeper moral philosophy and be aimed at revealing (or denying) law’s moral claims upon us Jurisprudence is often seen to be divided between “normative jurisprudence” and “analytical jurisprudence” Theories offered by Finnis and Rawls would fall within “normative jurisprudence” because they seek to offer normative (extraction of standards/norms) guidance as to what ought to be done Theories of law offered by Hart would be seen falling under analytical jurisprudence :aim to clarify the understanding of the concept of law without giving any normative guidance as to how we ought to behave or what institutions that should be supported as just and right Several theorist regard the analytical and normative distinctions as misleading The understanding of law’s nature will be bound up by moral and political understandings that eventually have normative implications

RULES AND PRINCIPLES          

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Hart claims that we can work out what the existing law is by using the rule of recognition The rule of recognition identifies certain sources, such as statutes and judicial decisions as sources of law : a rule counts as “law” if it emanates from such a source Sometimes,it will be unclear whether or not a rule applies to a given case . This is because of the “open texture” of language It may be unclear whether the rule relating to “ vehicles” is applicable to milk float, a pedal car and a pair of roller skates, since it is not clear whether these counts as vehicles. In such a case ,the courts will have to exercise its discretion and will have regard to policy considerations and to the considerations of fairness. But in majority of the case,no such exercise of discretion is necessary because it would be clear that the rule will or will not apply to that case. Dworkin challenges the general picture of law and legal reasoning He discusses a United States case,Riggs v Palmer although he says that almost any case in a law school casebook will serve its purpose In the case of Riggs v Palmer, murderer claimed that he was entitled to inherit under the will of his victim. The will was valid and was in the murderer’s favour.The existing rules of testamentary succession contained no exception relating to such a case where the murderer was the beneficiary of the will of the victim who he killed The courts decided that the application of the rules was subject to the general principles of law :no man should profit from his own wrong.The murderer was not entitled to the inheritance Riggs v Palmer shows us,according to Dworkin that the law does not consists entirely of rules but that it also includes principles. Principles differ from rules in a number of related ways 1. Rules apply in an all or nothing fashion

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If a rule applies and it is a valid rule the case must be decided in accordance with it  A principle gives a reason for deciding the case in a way but not a conclusive reason (where the case may be decided that way due to other considerations)  A principle may be a binding legal principle and may apply to a case and yet the case need not necessarily be decided according to that principle  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(only one of them should be treated as such).Legal systems have doctrinal techniques to resolve the apparent conflict between rules for example the maxim “lex posterior derogate priori”.Legal principles,can conflict and can still be binding legal principles 3. Because legal principles can conflict they have a dimension of weight which rules do not have.Rules are either valid or invalid:there is no question of one rule “outweighing” another.But principles must be balanced against each other This analysis may be hard to reconcile with Dworkin own discussion in Riggs v Palmer where principles came in conflict with a rule And does not Dworkin’s analysis suggest that principles conflict only with other principles and not with rules (Hart’s analysis pg 262) The answer would seem to be that Riggs v Palmer is in fact despite appearance of it,a clash between principles and not clash between rules and principles The rules of testamentary succession were binding on the court by virtue of certain principles (the principle that “the enactment of the legislature should be enforced according to their clear wording”. This principle came into conflict with the principle that “no man shall profit from his own wrong” The court when deciding that the later principle was decisive was not deciding that the principle should always prevail above that of enforcing statutes They were deciding that the effect of allowing a murderer to inherit from the victim would be a serious infringement of values portrayed by the no profit principle.That principle should prevail in such circumstances Statutory rules on succession ,rather than being enforced according to their surface meaning were to be construed subject to an implicit proviso (limitation) Nigel states that this enables us to see how the courts can change the law while applying the law At first instance one might argue that if the courts change the law ,they must do so by deviating from the strict application of the law However based on an example in Riggs v Palmer , a court may create an new exception to the established rules ,but they do so on the basis of legal principles. Riggs v Palmer created a new exception to the general rules on testamentary succession (“a murderer may not inherit under the will of his victim) but justified that exception by a legal principle (“no man shall profit from his own wrong”)

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PRNCIPLES AND POSITIVISM  

Suppose that we accept Dworkin’s analysis of Riggs v Palmer . What does this have to do with legal positivism

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Is it sufficient merely to point out that Hart does not mention legal principles because they not in any way consistent with his theory Why shouldn’t we treat Dworkin as simply making a useful addition to Hart’s theory? At first glance it might be thought that the case of Riggs v Palmer would not even qualify as a hard case in Hart’s theory Hart’s discussion of the open texture of language shows that he thinks that all legal uncertainties flows from the indeterminacy in the meaning of words but in Riggs v Palmer was not concerned with any uncertainty about the exact range of applicability of the concepts such as “valid will”, ”profit”, ”wrong” or anything else Hart is concerned with the necessary feature of law ,not contingent features of law The indeterminacy from the open texture of language is viewed by Hart as a necessary feature of law that could not be avoided However, there may also be other contingent sources of indeterminacy that may or may not be present in a particular system Dworkin claims that legal principles cannot be identified by anything resembling Hart’s rule of recognition. A principle may already be a legal principle even though no court has formulated it or laid it down as a principle For example : suppose that no lawyer or judge has ever mentioned the principle that no man shall profit from his wrong. It may still be possible to demonstrate that the principle is an existing legal principle (Dworkin mentioned) provided one could show that the principle provides an appropriate justification for a range of established black letter rules and discussions ( a gambler cannot sue for his winnings, a prostitute cannot sue for her earnings, a person injured in an illegal enterprise cannot claim compensation , a party cannot rely on a mistake induced by his own fraud in order to avoid or enforce a contract We cannot identify principles simply by consulting certain sources (criteria of legal validity),but by engaging in a moral or political discussion of what principles should be invoked to justify the black letter rules of law. There are two strategies for reconciling principles with positivism Positivist may argue that principles are indeed a part of the law , but principles may be identified by some version of the rules of recognition Positivist may also argue that principles cannot be identified by the basic rule of recognition but justify it by saying that because they are in reality not part of the law.They are extra legal moral considerations that are applied by the courts in the exercise of their discretion when the legal rules fail to give a clear and determinate answer

DISCRETION AND RIGHTS 

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Positivist could claim that Dworkin’s principles are simply moral consideration that judges may have recourse to in the exercise of his/her discretion,where law doesn’t provide a clear answer The inability to identify the principles by a basic rule of recognition does not repudiate legal positivism in general or Hart’s theory in particular To negate positivism ,Dworkin must offer compelling reasons for treating principles as a part of the existing law Dworkin does endeavour to produce such reason If we treat principles as a part of law ,we can see why Riggs v Palmer was a hard case

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This was not due to any vagueness or open texture in the relevant rules , but because of the conflict between different legal standards : the principles requiring the enforcement of statutes according to their clear wording conflicted with the principle that no man should profit from his own wrong But if the principles are not part of the law ,Riggs v Palmer did not involve any conflict of legal standards nor did it involve any vagueness,uncertainty or open texture: the legal rules being clear and ambiguous Riggs v Palmer was a case where the legal rules conflicted with desirable social policies or moral values. The positivist can hold one of two things 1. Riggs v Palmer was wrongly decided 2. Judges may legitimately alter the legal rules where they conflict with desirable social policies or values. But if a judge can alter the rule whenever that seems best,he cannot be said to be bound by the rule Thus,it may seem that if we refuse to regard principles as part of the law ,we may conclude that judges may set aside the established law whenever they think it is best on the whole to do so If the later proposition is correct than judges are never bound by rule at all,rules are of no legal importance and our legal positivism collapses into legal scepticism Dworkin point out that courts in most jurisdiction now have the power to depart from their own earlier decisions If principles are part of the law, we may regard the court’s decision to depart from earlier precedents to be regulated by legal principles. By this view, the courts may alter the established rules only in the implementation of legal principles, even in altering the legal rules, the judge is applying the law. If we however hold that principles are not a part of the law ,we must say that the judges may depart from earlier decision when,in the exercise of their discretion they think it best to do so. However,if judges can alter established rules in this way whenever they think it best to do so,they cannot be said to bound by the rules at all. Dworkin argues that if principles are not part of the law,then the rules are not binding Rejection of the idea of legal principle leads not to a positivist view of law ,but to rule scepticism The view that principles are not part of the law but are extra legal considerations applied in the sense of discretion is incompatible (according to Dworkin) not only with the idea of binding rules but also with the idea that courts enforce parties’ rights Courts are regarded as not deciding to benefit the plaintiff at the defendant’s expense , but as enforcing the plaintiff’s or the defendant’s rights But if the principles are not part of the law ,it follows that courts in problematic cases are exercising discretion and if courts have the discretion on how it decides cases,the parties cannot have the right to any particular decision Nigel gives an example that : Suppose that I am a trustee of a thousand pounds under a discretionary trust and you are one of the six beneficiaries. If I have the a discretion about how the money is to be distributed, it cannot be the case that you have a right to the whole 1000 pounds.Similarly if a court has a discretion about how it decides cases neither plaintiff or a defendant has a right to the decision in his favour.

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If the court in hard cases are exercising discretion, they cannot be enforcing pre existing rights Nigel Simmonds says that we ordinarily think of the courts as enforcing rights So we can refuse to admit principles as part of the law,by changing how we think and speak about the law Some positivist argue that people only have established legal rights in clear cases In hard cases ,a court is not enforcing rights but exercising discretion on moral or social policy grounds Judges and lawyers certainly speak of it as if they are concerned with the enforcement of pre-existing rights ,but this form of speech is purely rhetorical (linguistic) and traditional If principles are not part of the law ,rules are never binding -First argument The discretion that positivist find in hard cases cannot be confined to hard cases alone but all cases. The conclusion would be that we possess no legal rights at all

RULE OF RECOGNITION AND THE SOUNDEST THEORY   

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Dworkin does not argue that all moral principles are IPSO FACTO legal principles Some principles are legal principles and others are not Thus we might attempt to argue on the following lines Nigel Simmonds says : “Dworkin accept a distinction between legal and non legal principles. He therefore must hold that there is some CRITERION that distinguishes legal from non legal principles. But the idea that in each legal system there is some such basic criterion is the essential core of the Hart’s theory of the rule of recognition. Dworkin’s theory is therefore itself depends upon some notion of a basic rule of recognition.” Dworkin’s response is to point out that Hart’s theory of the rule of recognition cannot simply claim that there is a criterion distinguishing law from non law According to Dworkin, Hart must claim that laws are identified by pedigree and not by content : A rule counts as law not because it is just or fair (matter or content) but because it has been laid down or established in a statute or a case (a matter or source or pedigree) The whole point of having a rule of recognition following Hart is to provide a publicly ascertainable body of rules.Thus we can work on what the rules are through the criteria of validity without falling back on our judgements about justice or moral right to determine the rules According to Dworkin, this general thesis only makes sense if the rule of recognition identifies law by the criteria of pedigree Legal positivism must hold that law are IDENTIFIED by their pedigree and not by their content This is because,it if the rule of recognition states that “all those rules which are just are legal rules” it would provide no greater certainty similar to our differing view about justice (criteria as to content) Legal principles are not identified by their pedigree as Dworkin states It is not necessary that a principle should have been laid down in a case or a statute The judge who first formulates a legal principle formulates it as an existing part of the law and not as a legislative innovation of its own. Principles are identified by showing that they are embedded in established rules and decisions ,in the sense that the principles provide a suitable justification for the black letter rules (principle justifies the rules and decisions)

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The principle “no man shall profit from his own wrong” is an existing principle of the law by showing how a number of specific legal rules embody the principle (principle is embedded in these legal rules) The principle might provide a general justification for the content of the rules Dworkin describes an imaginary judge, called Hercules Since he possess superhuman powers , Hercules is able to carry out his judicial function in a far more through going and articulate manner than could any actual judge The procedures and method of arguments employed by Hercules