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The ‘Forces’ of Law

Published online by Cambridge University Press:  09 June 2015

W. J. Waluchow
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Extract

In Law’s Empire, Ronald Dworkin introduces an important distinction between what he calls the ‘grounds’ and the ‘force’ of law. The former primarily interest Dworkin in LE and concern the “circumstances in which particular propositions of law should be taken to be sound or true.” (110) Propositions of law, we are told, are “all the various statements and claims people make about what the law allows or prohibits or entitles them to have.” (4) That Canadians owing income tax to the federal government must file their returns before April 30 or face a late penalty is presumably an example of a proposition of law. That the United States constitution prohibits slavery is another. These (true) propositions of law simply report the law’s (present) requirements, requirements which normally should be respected but which might justifiably be disobeyed or disregarded in exceptional cases. A true proposition of law, then, does not necessarily entail an answer to the question: What should I do, or decide (if called upon to render a judicial decision)? It also does not necessarily entail an answer to the question: Should the coercive power of the state be exercised against this person?

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 3 , Issue 1 , January 1990 , pp. 51 - 67
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1990

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References

An earlier draft of this paper was presented to the Department of Philosophy of McMaster University, and at the 1989 meetings of the Canadian Section of the International Society for Social and Legal Philosophy at the University of Laval. I gratefully acknowledge the helpful comments of those present on those occasions. I am particular indebted to Dick Bronaugh for his insightful commentary. Others who read the paper at various stages include Les Green, H.L.A. Hart and Ken Lloyd. To them I also extend a note of thanks.

1. Ronald, Dworkin Law’s Empire (Cambridge: Harvard University Press, 1986),Google Scholar (henceforth LE). Unless otherwise indicated, all page references are to this book.

2. Hart, H.L.A. The Concept of Law (Oxford: Clarendon Press, 1961), v.Google Scholar

3. For a discussion of some respects in which Dworkin’s legal-grounds theory seems to qualify as a version of natural law, and for a critique of Dworkin’s views about the nature of legal theory, see my “The Weak Social Thesis” (1989), 9 Oxford Journal of Legal Studies at 23.Google ScholarPubMed

4. 1 do not mean to deny, of course, that all judges necessarily have discretion in some cases where the law is indeterminate, and that in exercising this discretion they add to and thus modify the law. My concern here is the legal power to change established law, which some judges undeniably possess but others do not. On the necessity of judicial discretion, see supra, note 2, ch. 7.

5 Sir Rupert Cross, Precedent in English Law, 3rd ed. (Oxford: Clarendon Press, 1977), 4.In his detailed study, Cross documents the variety of different powers and responsibilities of English and other judges with respect to precedents.Google Scholar

6. Supra, note 5, at 109-16.

7. [1952] A.C. 231,250.

8. See, supra, note 5 at 37.

9. [1916] A.C. at 334; cited in Cross, supra, note 5 at 37.

10. For further analysis of the varying degrees of institutional force precedents may exert, see Raz, J. The Authority of Law, (Oxford: Clarendon Press, 1979) at 180–209, nd Cross, supra, note 5,passim.Google Scholar

11. On private powers, see H.L.A. Hart, supra, note 2, ch. 3.

12. In his article “Legal Positivism and Natural Law Reconsidered” 68, The Monist at 364-87, David Brink urges a similar distinction between a theory of legal validity and a theory of adjudication, arguing that much of Dworkin’s attack on the positivist’s theory of validity (i.e. his theory of law) is misplaced insofar as Dworkin is concerned with issues surrounding the theory of adjudication.

13. It is not a novel observation that Dworkin identifies the theory of law with the theory of adjudication. See, for example Joseph, Raz “The Problem About the Nature of Law” (1983), 21 University of Western Ontario Law Review, 211;Google Scholar Brink, supra, note 12; and Soper, P. “Dworkin’s Domain” (review of LE) (1987), 100 Harvard Law Review, 1166.CrossRefGoogle Scholar So far as I am aware, however, no one has discussed the difficulties to which I draw attention below.

14. Ronald, Dworkin Taking Rights Seriously, (Cambridge: Harvard University Press, 1977), ch. 2.Google Scholar

15. By ‘constructive interpretation’ Dworkin means “ imposing purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong.” See Dworkin, supra, note 1 at 52.

16. See, Dworkin, supra, note 14 at 89.

17. Ibid., 93.

18. Ibid.

19. Ibid.

20. For an enlightening discussion of other connections between Dworkin and Kelsen, see Raz, supra, note 13 at 208-11.

21. See, supra, note 2 at 39.

22. It should be noted that Dworkin is well aware that undesirable or mistaken law is often binding on lowercourt judges. See, e.g., supra, note 14 at 118-23 on the topic of ‘corrigible’ and ‘embedded’ mistakes. My claim is not that Dworkin ignores or is totally unaware of what I have been calling the institutional forces of law, only that his conception of law is insufficiently sensitive to its importance.

23. I am indebted to Dick Bronaugh for bringing this possibility to my attention.

24. These problems will not be discussed thoroughly here, largely because they have been carefully examined elsewhere. See, e.g., Hart, H.L.A. Essays on Bentham (Oxford: University Press, 1982), at 147–53, especially 150-1.Google Scholar

25. See, e.g. Dworkin, supra, note 1 and 104. The most influential account of the merits of distinguishing law from its moral force is to be found in the writings of H.L. A. Hart. See, for example, “Positivism and the Separation of Law and Morals” (1958), 71 Harvard Law Review, 593;Google Scholar supra, note 2; “Bentham and the Demysufication of Law” in Essays on Bentliam (Oxford: Clarendon Press, 1982);Google Scholar and “American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream” in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983).Google Scholar See also Raz, supra, note 10 and MacCormick, D.N. “A Moralistic Case For A-Moralistic Law” (1985–86), 20 Valparaiso Law Review, at 9–11.Google ScholarFor critical discussion of arguments supporting the separation of law and its moral force, see, e.g., Philip, Soper “Choosing A Legal Theory on Moral Grounds”, Philosophy and Law (Oxford: Blackwell’s, 1987), and supra, note 3, esp. at 26-31.Google Scholar

26. Robert Moles makes this serious mistake in his Definition and Rule in Legal Theory: A Reassessment of H.L.A. Hart and the Positivist Tradition (Oxford: Blackwell’s, 1987).Google Scholar For criticism of Moles on just this point, see my review in (1988), 8 Canadian Philosophical Reviews, 181-3.

27. My intention, it should be clear, is not to argue that Dworkin’s theory could not possibly be modified (or understood) in some way which would allow him to escape the objections we considered above. My aim is only to suggest that the kind of positivism I sketch can easily accommodate the distinctions defended above and that the ease with which it does so counts in its favour. It certainly counts against Dworkin’s conception of legal rights, if we are really to understand these as rights to decisions from judges.

28. See Raz, supra, note 10, ch. 5 and 6. According to Raz courts are sometimes bound to uphold standards in addition to the norms of their legal system. As Raz notes, “ Quite often the courts have an obligation to apply laws of other legal systems, rules of private associations, and so on, although these were not and do not become part of the legal system” (97). Thus, we must identify the law as only a subset of the norms which have institutional force for judges.

29. In supra, note 13, Raz discusses what he calls the ‘Basic Intuition’, that “ The law has to do with those considerations that it is appropriate for courts to rely upon in justifying their decisions” (207). This is an intuition shared by such diverse writers as Kelsen, Dworkin, Hart, and, no doubt, Raz himself.

30. See, Raz, supra, note 10 at 114-5.