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PRINCIPLE, PRACTICE, AND PRECEDENT: VINDICATING JUSTICE, ACCORDING TO LAW

Published online by Cambridge University Press:  21 May 2018

T.R.S. Allan
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Abstract

Legal judgment, I argue, entails moral judgment; legal obligations, correctly identified, are genuine moral obligations. Dworkin's legal theory is instructive, but problematic: his account of integrity fails to provide a convincing reconciliation of practice and principle. We can, however, defend a superior account in which the moral ideals that we invoke to justify legal practice – affirming its legitimacy under certain conditions – retain their force throughout our judgments about its specific demands in particular cases. Common law reasoning exemplifies that approach, reflecting the interdependence of practice and principle. It is an internal, interpretative inquiry, drawing on the moral resources of our own tradition, treated as an influential guide to the requirements of justice. The law is constituted, accordingly, neither by its socially authoritative sources, whatever their merits, nor by the moral effects of our legal practice. It is rather the scheme of justice we construct in our continuing efforts to bring our practice closer to the ideals that inspire and redeem it.

Keywords

legal obligationlegal principlelegal practicejudicial precedentcommon law adjudicationinterpretative legal reasoninglaw-as-integrityGreenberg's moral impact theory
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Articles
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The Cambridge Law Journal , Volume 77 , Issue 2 , July 2018 , pp. 269 - 297
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Copyright © Cambridge Law Journal and Contributors 2018 

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Footnotes

*

Professor of Jurisprudence and Public Law, University of Cambridge. Helpful comments on earlier drafts by Thomas Adams, Peter Cane, David Dyzenhaus, Gerald Postema and Nigel Simmonds are very gratefully acknowledged.

References

1 See Hart, H.L.A., The Concept of Law, 2nd ed. (Oxford 1994)Google Scholar.

2 See especially Greenberg, M., “The Moral Impact Theory of Law” (2014) 123 Yale L.J. 1288Google Scholar; Hershovitz, Scott, “The End of Jurisprudence” (2015) 124 Yale L.J. 1160Google Scholar.

3 See e.g. Finnis, J., Natural Law and Natural Rights (Oxford 1980)Google Scholar, ch. 1, distinguishing between the “central case” of law and its more marginal instances.

4 Like Greenberg (“The Moral Impact Theory of Law”) I treat a theory of law as a constitutive explanation of the content of the law, showing how, in principle, legal rights, duties, powers and immunities are to be correctly ascertained.

5 I use the term only to suggest the interpenetration of legal tradition and moral understanding, not to deny moral objectivity. If, as Dworkin suggests, we must interpret the shared practices in which moral concepts figure, our interpretative efforts must encompass both legal and moral practice. See Dworkin, R., Justice for Hedgehogs (Cambridge, MA 2011)Google Scholar, ch. 8.

6 Dworkin, R., Law's Empire (London 1986)Google Scholar.

7 Ibid, at pp. 108–13.

8 For the role of paradigms in legal argument, see ibid., at pp. 72–73, 88–92, 138–39.

9 Ibid, at p. 255.

10 Ibid, at p. 134.

11 See further Allan, T.R.S., “Interpretation, Injustice, and Integrity” (2016) 36 O.J.L.S. 58CrossRefGoogle Scholar.

12 Dworkin, Justice for Hedgehogs, p. 410.

13 Dworkin, R., “The Law of the Slave-Catchers”, Times Literary Supplement, London, 5 December 1975, p. 1437Google Scholar.

14 Stephen Perry distinguishes between “rationalisation” and “normative primacy” models of principle, the former providing the best justification for binding legal rules and being morally “second-best”, capable of justifying the rules only if the rules themselves are morally valid: Perry, S.R., “Two Models of Legal Principles” (1997) 82 Iowa L.Rev. 787, at 795–96Google Scholar.

15 See also Perry, S.R., “Judicial Obligation, Precedent and the Common Law” (1987) 7 O.J.L.S. 215CrossRefGoogle Scholar, especially 234–57.

16 Dworkin argues that under the appropriate conditions of reciprocity people have associative obligations, deriving from membership of a genuine community: Law's Empire, pp. 195–202. Associative obligations cannot, however, consistently be overridden by considerations of justice as Dworkin mistakenly contends: see Allan, T.R.S., “Law, Justice and Integrity: The Paradox of Wicked Laws” (2009) 29 O.J.L.S. 705, at 716–19CrossRefGoogle Scholar.

17 Political obligation, according to Dworkin, is not just a matter of obeying the discrete political decisions of the community one by one: “It becomes a more protestant idea: fidelity to a scheme of principle each citizen has a responsibility to identify, ultimately for himself, as his community's scheme” (Law's Empire, p. 190).

18 For a valuable attempt to reconnect traditional common law thought with contemporary theory, see Walters, M.D., “Legal Humanism and Law-as-Integrity” [2008] C.L.J. 352CrossRefGoogle Scholar. See also Walters, , “The Unwritten Constitution as a Legal Concept” in Dyzenhaus, D. and Thorburn, M. (eds.), Philosophical Foundations of Constitutional Law (Oxford 2016), 33–52CrossRefGoogle Scholar. Constitutional law must be understood as “ordinary” law in the sense that it is not derived from sources external to law (such as a rule of recognition): the basic norms of good governance are immanent within law itself.

19 Waldron, J., “Judges as Moral Reasoners” (2009) 7 I. CON 2, at 11–13Google Scholar; see further below.

20 Compare Dworkin, R., Taking Rights Seriously (London 1977)Google Scholar, ch. 8.

21 Greenberg, “The Moral Impact Theory of Law”, p. 1337. The “moral profile” includes “moral obligations, powers, privileges, and so on” (p. 1308).

22 According to Greenberg there are evil laws, “where ‘laws’ is used in the sense of statutes or other authoritative legal texts” (ibid., at p. 1338).

23 Ibid., at pp. 1321–23. Greenberg does accept that it is part of the nature of law that a legal system is supposed to improve our moral situation (even if in practice it may not).

24 “Legal institutions take actions to change our moral obligations by changing the relevant facts and circumstances” (ibid., at p. 1294). The “moral impact” theory “takes the question of legal interpretation to be: what is morally required as a consequence of the lawmaking actions?” (ibid., at p. 1303, emphasis in original).

25 Compare Hershovitz, “The End of Jurisprudence”, p. 1194 (see further below).

26 Compare Postema, G.J., “Integrity: Justice in Workclothes” (1997) 82 Iowa L.Rev. 821, at 844–51Google Scholar.

27 Rawls, J., “Outline of a Decision Procedure for Ethics”, (1951) 60 Phil.Rev. 177CrossRefGoogle Scholar.

28 Ibid., at pp. 178–81.

29 Ibid., at p. 184. Appropriate instances for ethical analysis are to “be found in those decisions which seem to represent a well-established result of discussion on the part of moralists, jurists, and other persons who have given thought to the question at issue” (p. 194); Rawls's example is freedom of speech and thought.

30 Ibid., at p. 188. In later accounts of reflective equilibrium Rawls emphasises the interaction between different levels of generality, denying that either the level of abstract principles or that of particular judgments should be viewed as foundational: see Rawls, J., A Theory of Justice (Oxford 1972), 20–21Google Scholar, 46–51; Rawls, J., Political Liberalism (New York 1993), 8Google Scholar, n. 8.

31 Dworkin, Taking Rights Seriously, pp. 118–23.

32 Rawls, “Outline of a Decision Procedure”, p. 189; Omychund v Barker (1744) 1 Atk. 21, 33, (Solicitor-General Murray, later Lord Mansfield).

33 See e.g. Alexander, L. and Kress, K., “Against Legal Principles” (1997) 82 Iowa L.Rev. 739Google Scholar, at 766–67.

34 Greenberg, Compare M., “How Facts Make Law” in Hershovitz, S. (ed.), Exploring Law's Empire: The Jurisprudence of Ronald Dworkin (Oxford 2006), 225–64Google Scholar.

35 Waldron, “Judges as Moral Reasoners”, p. 13.

36 While rejecting “the absurd view that the law is always morally sound”, Dworkin suggested that legal principles were nevertheless moral principles in form, by contrast for example with prudential judgments or historical generalisations: Taking Rights Seriously, pp. 341–43.

37 Compare Hayek, F.A., Law, Legislation and Liberty (London 1982)Google Scholar, especially vol. 1, ch. 5, defending legal judgment as a form of “immanent criticism” by which “rules of conduct” are developed to produce an “efficient order of actions”. Even if a judicial decision cannot be logically deduced from recognised rules, it must be consistent with them “in the sense that it serves the same order of actions” (pp. 115–16).

38 Greenberg, “The Moral Impact Theory of Law”. Institutional action may in practice generate moral obligations to remedy or mitigate its consequences; these obligations are not “legal obligations” because they do not arise in the “legally proper way” (pp. 1322–23).

39 Ibid., at p. 1302.

40 Compare Raz, J., Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford 1994)Google Scholar, ch. 14.

41 Greenberg, “The Moral Impact Theory of Law”, p. 1314.

42 Ibid., at p. 1305.

43 In rejecting “positivistic” notions of the “moral neutrality of law”, Lon Fuller observes: “To regard as morally indifferent the existence or non-existence of law is to assume that moral precepts retain the same meaning regardless of the social context into which they are projected.” See Fuller, L.L., The Morality of Law, 2nd ed. (New Haven 1969), 206–207Google Scholar.

44 S. Hershovitz, “The End of Jurisprudence”, p. 1194.

45 Ibid., at p. 1194, n. 57.

46 Ibid., at p. 1194.

47 See below for further argument.

48 Hershovitz is content to accept conflict between legal and other moral obligations because he thinks the former are a consequence of discrete, explicit sources (analogous with explicit promises); his position is in that way aligned with legal positivism: see “The End of Jurisprudence”, pp. 1188–89.

49 For Dworkin's discussion of (internal and external) scepticism, see Law's Empire, pp. 78–85, 266–71.

50 Waldron, “Judges as Moral Reasoners”, p. 18.

51 Ibid., at pp. 9–11.

52 Ibid., at p. 12.

53 Ibid., at p. 13.

54 Ibid., at p. 14.

55 R. v Secretary of State for the Home Department, ex parte Leech [1994] Q.B. 198.

56 See further Allan, T.R.S., “The Moral Unity of Public Law” (2017) 67 U.T.L.J. 1, pp. 14–19CrossRefGoogle Scholar.

57 Compare Finnis, J., “Reason and Authority in Law's Empire” in Finnis, J., Philosophy of Law: Collected Essays, vol. IV (Oxford 2011), 290–95CrossRefGoogle Scholar. Hercules is Dworkin's ideal judge, who follows law-as-integrity (see Law's Empire, pp. 238–40).

58 See Dworkin, R., Justice in Robes (Cambridge, MA 2006), 171Google Scholar. Compare Law's Empire, p. 257, affirming that the constraint fit imposes on substance is “the constraint of one type of political conviction on another in the overall judgment which interpretation makes a political record the best it can be overall, everything taken into account”.

59 See below for Dworkin's distinction between “pure” and “inclusive” integrity.

60 Dworkin, Law's Empire, p. 178.

61 See Waldron, J., Law and Disagreement (Oxford 1999), 191–95CrossRefGoogle Scholar.

62 A chequerboard statute embodies an arbitrary compromise that reflects divided opinion about matters of justice: Dworkin, Law's Empire, pp. 178–84.

63 Compare Fuller, L.L., Anatomy of the Law (London 1971), 136Google Scholar, describing common law precedents as a “common language”, preserving “those systematic elements of law without which communication between generations of lawyers … would be impossible”.

64 The moral consensus must, of course, be a consensus of conviction rather than convention: “Paradigms anchor interpretations, but no paradigm is secure from challenge by a new interpretation that accounts for other paradigms better and leaves that one isolated as a mistake” (Dworkin, Law's Empire, p. 72).

65 See further Allan, T.R.S., Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford 2001)Google Scholar, ch. 5. See also Allan, T.R.S., The Sovereignty of Law: Freedom, Constitution, and Common Law (Oxford 2013)CrossRefGoogle Scholar, ch. 3.

66 Compare Postema, “Integrity”, arguing that justice is a public good attainable only through coordinated, collective action.

67 Waldron, Law and Disagreement, p. 201.

68 Dworkin, Law's Empire, p. 407.

69 Ibid., at p. 409.

70 Compare Solicitor-General Murray (later Lord Mansfield) in Omychund (1744) 1 Atk. 21, 33: the common law “works itself pure by rules drawn from the fountain of justice”.

71 Pure integrity “consists in the principles of justice that offer the best justification of the present law seen from the perspective of no institution in particular and thus abstracting from all the constraints of fairness and process that inclusive integrity requires”: Law's Empire, p. 407. “Inclusive integrity” provides our “actual concrete law”, according to Dworkin; it is “law for the judge, the law he is obliged to declare and enforce” (ibid., at p. 406).

72 Ibid., at p. 348.

73 Ibid., at p. 401; compare Dworkin's account of statutory interpretation at pp. 350–53.

74 See further Allan, The Sovereignty of Law, especially chs. 4, 5.

75 The classic example is Anisminic Ltd. v Foreign Compensation Commission [1969] 2 A.C. 147.

76 See especially Secretary of State for the Home Deparment v AF (no 3) [2009] UKHL 28, [2010] 2 A.C. 269; Canada (Citizenship and Immigration) v Harkat 2014 S.C.C. 37, [2014] 2 S.C.R. 33; Allan, “The Moral Unity of Public Law”, pp. 12–14.

77 Evans v Attorney General [2015] UKSC 21, [2015] A.C. 1787; see Allan, T.R.S., “Law, Democracy, and Constitutionalism: Reflections on Evans v Attorney General” [2016] C.L.J. 38CrossRefGoogle Scholar.

78 Integrity in law depends on interpretative integrity, forging close links between the rule of law and individual conscience: see Allan, “Interpretation, Injustice, and Integrity”, pp. 74–80.

79 Dworkin distinguishes between the “doctrinal” and “sociological” concepts of law: Justice in Robes, ch. 8. It is very doubtful, however, whether either concept should be treated as lacking an internal moral dimension: see Simmonds, N., Law as a Moral Idea (Oxford 2007), 25–31Google Scholar.

80 See Dworkin, Law's Empire, pp. 108–13 (distinguishing between the “grounds” and “force” of law) and pp. 202–206 (conflict between law and justice). When political obligation is genuine, it imposes the duties that the correct interpretation of law identifies; and these cannot be consistently overridden on grounds of justice: see Allan, “Interpretation, Injustice, and Integrity”, pp. 63–68.

81 See Allan, The Sovereignty of Law, pp. 93–94.

82 Dworkin, Justice for Hedgehogs, p. 411.

83 Dworkin, Law's Empire, p. 219.

84 Dworkin, “The Law of the Slave-Catchers”.

85 Hershovitz is obliged to argue that, while we do not want officials to think that they can decide whether a statute should be enforced, we must also hope that they will sometimes decline to enforce a statute nonetheless: “The End of Jurisprudence”, p. 1192. Such infelicity is the result of separating the sources of law, treated purely as social fact, from the legal/moral obligations that arise in consequence.

86 See further Allan, “Law, Justice and Integrity”.

87 Greenberg, “The Moral Impact Theory of Law”, p. 1314.

88 Ibid., at p. 1293.

89 Smith v United States 508 U.S. 223 (1993).

90 Greenberg, “The Moral Impact Theory of Law”, p. 1292.

91 See Dworkin, Law's Empire, pp. 255–56, suggesting that such convictions operate only beyond the threshold of fit.

92 Law is not only “ordinary” but also pervasive, “understood to stretch across the entire field of social and political life leaving no gaps where the exercise of power is arbitrary”: Walters, “The Unwritten Constitution”, p. 49.

93 Greenberg, “The Moral Impact Theory of Law”, p. 1316.

94 In response to Cass Sunstein's contention that “the development of large-scale theories of the right and the good is a democratic task, not a judicial one”, Dworkin observes: “It is only through interpretation of more concrete enactments that we can identify the principles which we have together embraced.” See Dworkin, Justice in Robes, pp. 70–71; Sunstein, C.R., Legal Reasoning and Political Conflict (New York 1996), 53Google Scholar.

95 Greenberg, “The Moral Impact Theory of Law”, p. 1317.

96 There is at least an analogy here with Dworkin's critique of Hart's jurisprudence as “Archimedean”, detached from the commitments and perspective of participants: see Dworkin, Justice in Robes, ch. 6.

97 Greenberg, “The Moral Impact Theory of Law”, p. 1336.

98 See Hershovitz, “The End of Jurisprudence”. Hershovitz's repudiation of such a special normative domain leads him, unnecessarily, to reject an interpretative, Dworkinian approach.

99 Conventionalism is legal positivism in interpretative dress: see Dworkin, Law's Empire, ch. 4.

100 Dworkin, Taking Rights Seriously, p. 68.

101 Ibid., at p. 126.

102 Against Hobbes's rejection of Coke's notion of artificial reason, Matthew Hale replies that “it appears that men are not born common lawyers, neither can the bare exercise of the faculty of reason give man a sufficient knowledge of it, but it must be gained by the habituating and accustoming and exercising of that faculty by reading, study and observation, to give a man a competent knowledge thereof”: Hale's ‘Reflections’ on Hobbes's, ‘Dialogue between a Philosopher and a Student of the Common Laws of England’ in Postema, G.J. (ed.), On the Law of Nature, Reason, and Common Law: Selected Jurisprudential Writings of Sir Matthew Hale (Oxford 2017), 193Google Scholar.

103 My account of law has much in common with the view presented in Misak, C., “A Pragmatist Account of Legitimacy and Authority” in Rondel, D. and Dieleman, S. (eds.), Pragmatism and Justice (Oxford 2017)Google Scholar, exploring the work of Oliver Wendell Holmes. Compare Nye, H., “Staying Busy While Doing Nothing? Dworkin's Complicated Relationship with Pragmatism” (2016) 29 C.J.L.J. 71Google Scholar.