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Justice and Fairness in Law's Empire

Published online by Cambridge University Press:  16 January 2009

T.R.S. Allan
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Extract

Two important themes in Ronald Dworkin's work have contributed much to an understanding of Anglo-American law. He has insisted on the inter-connection between law and morality, emphasising the role of the judge's political morality in his judgments about the law. He has also argued that individual rights should be understood as anti-utilitarian or anti-majoritarian in character: they operate as constraints on majority decisions about the public interest or general welfare. In combination, these theories have provided an explanation of the legitimacy, in a democracy, of leaving undeniably “political” questions to unelected judges. Judges determine legal rights by applying (legal and political) principle. Matters of policy—understood as raising questions of the general welfare or the public interest— are primarily the concern of the other branches of government. Though policy questions are of concern to judges in the context of statutory construction, where the courts must decide what the legislature has in its wisdom enacted, it is their creative and evaluative role in respect of principle—concerning the moral and legal rights of individuals—which is the hallmark of adjudication, properly understood.1

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Articles
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The Cambridge Law Journal , Volume 52 , Issue 1 , March 1993 , pp. 64 - 88
Copyright
Copyright © Cambridge Law Journal and Contributors 1993

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References

1 Taking Rights Seriously (London 1977),Google Scholar esp. ch. 4; A Matter of Principle (Oxford 1985), esp. ch. 1.Google Scholar

2 London 1986.

3 Law's Empire, p. 258.Google Scholar

4 Ibid., p. 93.

5 Ibid., p. 96.

6 Ibid., p. 165.

7 Ibid., pp. 165–166.

8 Ibid., p. 225.

9 Ibid., pp. 248–250: see discussion below.

10 Ibid., pp. 190, 413.

11 E.g. p. 249. “Justice is a matter of the correct or best theory of moral and political rights, and anyone's conception of justice is his theory, imposed by his own personal convictions, of what these rights actually are” (p. 97).

12 Ibid., p. 219.

13 Ibid., pp. 240–250.

14 Ibid., p. 249.

15 Ibid.

16 The distinction between rules and principles was well explained by Dworkin, in Taking Rights Seriously, pp. 22–28; 71–80.Google Scholar

17 CfDetmold, M.J., The Unity of Law and Morality (London 1984), ch. 4.Google Scholar

18 See the excellent discussion by Detmold, M.J., op. cit., who argues that Dworkin correctly rejects any distinction between legal judgment and personal judgment; but that he wrongly proposes a contrast between legal and moral judgment. Detmold denies that institutional history can determine the weight of principles (but not that Hercules can correctly determine it by exercise of (perfect) moral judgment).Google Scholar

19 See Goodhart, A.L., “Determining the Ratio Decidendi of a Case”, Essays in Jurisprudence and the Common Law (Cambridge 1931).Google Scholar The reasons given by the court may assist in determining which facts were considered material. Goodhart's account illuminates the necessity for subsequent courts to construct norms from precedents, rather than seek norms contained within them: see Detmold, M.J., The Unity of Law and Morality, pp. 188–192.Google Scholar It may also be necessary to have regard to the court's reasons to discover why certain facts were treated as material: see Cross, and Harris, , Precedent in English Law, 4th ed. (Oxford 1991), pp. 63–71. However, a decision will often be interpreted in the light of other decisions, and a rule of law constructed on the basis of a number of cases. “It may then appear that the case which is being interpreted was decided consistently with that rule, although trie ratio decidendi of the case has ceased to be the proposition of law for which it is authoritative.” (Cross and Harris, op. cit., p. 73.) See also Lord Halsbury's remarks in Quinn v. Leathern [1901] A.C. 495, 506.Google Scholar

20 Compare Dworkin's own discussion of statute and case-law in Taking Rights Seriously, pp. 107–115. He notes that precedent is not based on the application of rules formulated in canonical terms. Judgments “cite reasons, in the form of precedents and principles, to justify a decision, but it is the decision, not some new and stated rule of law, that these precedents and principles are taken to justify” (p. 111).Google Scholar

21 [1983] 1 A.C. 410; Law's Empire pp. 23–29.

22 [1983] 1 A.C. 410, 430. If, however, the law properly reflects the moral rights which justice recommends, the judicial task is not strictly creative in Lord Scarman's sense. The judge seeks to ascertain what both law and justice truly require. Lord Scarman adds that, “whatever the court decides to do, it starts from a base-line of existing principle and seeks a solution consistent with or analogous to a principle or principles already recognised”.

23 Ibid., 419. Sec also Lord Bridge al 441.

24 Law's Empire, p. 240.Google Scholar

25 The “range” of a principle means its scope or coverage; its “force” is a matter of weight in each case where it does apply. CfSchauer, Frederick, Free Speech: A Philosophical Enquiry (Cambridge 1982), pp. 89–92 (“coverage” and “protection”).Google Scholar

26 See, e.g., Hayek, F. A.. Law, Legislation and Liberty (London 1982), Vol. I, pp. 85–88;Google ScholarWalker, Geoffrey de O., The Rule of Law (Melbourne 1988), pp. 162–170.Google Scholar

27 Hart, Cf. H.L.A., Law, Liberty, and Morality (Oxford 1963) pp. 17–24. Hart distinguishes “positive morality”-the morality “actually accepted and shared hy a given social group”-from “critical morality”-the “general moral principles used in the criticism of actual social institutions including positive morality”.Google Scholar

28 Compare Taking Rights Seriously, where Dworkin explained that the “doctrine of fairness offers the only adequate account of the full practice of precedent”. This is a reference to the “fairness of treating like cases alike” (p. 113).

29 Law's Empire, p. 219.Google Scholar

30 I.e., common law adjudication: integrity has a wider meaning, encompassing fairness as well as justice, in the different context of statutory interpretation.

31 Law's Empire, p. 219.Google Scholar

32 A Matter of Principle, pp. 11–12. emphasis added.

33 Ibid., p. 17.

34 Ibid.

35 Ibid.

36 A Theory of Justice (Oxford 1972).Google Scholar

37 Law's Empire, p. 164. See also p. 404: Justice is a matter of the right distribution of goods, opportunities, and other resources. “Fairness is a matter of the right structure for that system, the structure that distributes influence over political decisions in the right way.”Google Scholar

38 A Matter of Principle, p. 16.Google Scholar

39 See below for mention of common law principles of statutory interpretation.

40 Law's Empire, p. 250.Google Scholar

41 See esp. Taking Rights Seriously, chs. 5 & 7; “Is there a Right to Pornography?” (1981) 1 O.J.L.S. 177.

42 See Dworkin's discussion of racial equality, Law's Empire, pp. 381–397.Google Scholar

43 Compare Dworkin's discussion in Taking Rights Seriously, p. 129, where he repudiated the notion that popular judgment about “institutional morality”-the concept of justice enshrined in institutional history-could be ascertained from the ordinary man's “political preferences, expressed casually or in the ballot”. In any event, Hercules would be wrong to defer to the popular judgment: “He knows that the question he must decide is the question of the parties' institutional rights. He knows that if he decides wrongly, as he would do if he followed the ordinary man's lead, he cheats the parties of what they are entitled to have.” Dworkin was careful in that discussion to distinguish popular morality from the community's “constitutional morality”-“the justification that must be given for its constitution as interpreted by the judges”. The former must give way to the latter. “Individuals have a right to the consistent enforcement of the principles upon which their institutions rely. It is this institutional right, as defined by the community's constitutional morality, that Hercules must defend against any inconsistent opinion however popular” (p. 126).Google Scholar

44 Tennessee Valley Authority v. Hill 437 U.S. 153 (1978);Google ScholarLaw's Empire, pp. 20–23; ch. 9.Google Scholar

45 Law's Empire, p. 341.Google Scholar

46 A.G. for Canada v. Hallell & Carey [1952] A.C. 427, 450 (Lord Radcliffe). (See further my “Legislative Supremacy and the Rule of Law” [[1985] C.L.J. 111.)

47 Ibid.

48 Law's Empire, p. 352.Google Scholar

49 Ibid., p. 255.

50 The Law of the Constitution, 10th ed. (London 1959), pp. 70–85.Google Scholar

51 Law's Empire, p. 250.Google Scholar

52 Ibid., 257. See further my “Limits of Parliamentary Sovereignty” [1985] P.L. 614; and cf. Oppenheimer v. Caltermole [1976] A.C. 249. M.J. Detmold makes a similar point in marking the difference between immoral statutes which it is right to enforce and immoral statutes which it would be immoral (and hence illegal) to enforce: sec “Law as Practical Reason” [1989] C.L.J. 436.

53 Ibid., p. 112.

54 Although it is possible to imagine instances in which a judge would be unable in conscience to enforce the law as he understands it to be, they will necessarily be occasions in which his objections fall outside the scope of his ordinary political morality—which will encompass all those moral considerations directly relevant to his judicial office.

55 An “internal” sceptic adopts the interpretive attitude but denies the possibility of an acceptable interpretation: an “external” seeptic rejects the interpretive enterprise altogether (see Law's Empire, pp. 78–85).Google Scholar

56 “Inclusive” integrity “requires a judge to take account of all the component virtues. He constructs his overall theory of the present law so that it reflects . . . coherent principles of political fairness, substantive justice, and procedural due process, and reflects these combined in the right relation” (p. 405).

57 Judge Siegfried, required to enforce the law of Nazi Germany, would be a seeptic. We may think that “in every case Siegfried should simply ignore legislation and precedent altogether, if he can get away with it, or otherwise do the best he can to limit injustice through whatever means arc available to him” (p. 105).

58 See note 55, above.

59 The conflict between justice and fairness is likely to be more acute in Britain than in the United States. Where the legislature is subject to express constitutional constraints, fairness may be more readily qualified by the requirements of justice.

60 See note 57, above.

61 Law's Empire, p. 68.Google Scholar

62 Ibid., p. 255.

63 Ibid., pp. 232–237.

64 Ibid., p. 239.

65 Ibid., p. 257.

66 Stephen, L., Science of Ethics (London 1882), p. 143;Google ScholarDieey, A.V., Law of the Constitution. 10th ed. (London 1959), p. 81.Google Scholar

67 The Australian Commonwealth (Sydney 1985), pp. 252–254.Google Scholar

68 Law's Empire, p. 406.Google Scholar

69 Ibid., pp. 406–407.

70 Ibid., p. 405.

71 Ibid., pp. 405–406.

72 As Dworkin now recognises, “Fairness and due process are both . . . tied to specific institutions within the community” (p. 406).

73 For instructive analysis of the contrast between Dworkinian and conventionalist judicial approaches to legislation enforcing apartheid, see Dyzenhaus, David, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (Oxford 1991)Google Scholar. Dyzenhaus explains how a “common law” approach “screens out” morally repugnant legislative intentions by interpretation; and concludes that judges may properly decide that an “altogether obnoxious” statute fails to meet minimum requirements for law” (ibid., p. 262).