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Dworkin’s Morality and its Limited Implications for Law
Published online by Cambridge University Press: 20 July 2015
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In his account of adjudication, Ronald Dworkin makes the case that judicial engagement with morality is a necessary feature of legal practice and so of law itself. This paper examines the nature and implications of this claim. It argues (a) that Dworkin is concerned with a form of engagement between law and morality that is insufficient to make morality count as part of law in virtue of it and (b) that the sort of engagement with morality that Dworkin identifies turns out to support only the notion that judicial acts have moral meaning or import of some sort. Dworkin’s key interpretive claim that adjudication entails offering a positive moral justification for the practice of law is undermined by the type of moral engagement he properly identifies.
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- Copyright © Canadian Journal of Law and Jurisprudence 2012
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Thanks are due to Dennis Patterson for very helpful advice and to participants at seminars in Trinity College Dublin (The Irish Jurisprudence Society) and Edinburgh University where earlier versions of this paper were presented. Considerable gratitude is due Richard Bronaugh for his comments. Errors remain my own.
1. Law might ‘claim’ to be morally justified or to have moral authority (see, for example, Raz, Joseph, Practical Reason and Norms (Oxford: Oxford University Press, 1975)Google Scholar and Raz, Joseph, The Authority of Law (Oxford: Oxford University Press, 1979)Google Scholar; it may be true that the ideal or central case example of law is morally justified law (see, for example, Finnis, John, Natural Law and Natural Rights (Oxford: Oxford University Press, 1979)Google Scholar) or that there is an ‘inner morality’ to the rule of law (see, for example, Fuller, Lon, The Morality of Law (New Haven, CT: Yale University Press, 1969, [orig.1964])Google Scholar to mention just a few possible relations. Further relations between law and morality are suggested by claims that (at least) some laws have moral content; that (at least) some laws have moral consequences; that moral reasoning may be needed to interpret some laws; that law ought to be morally justified; that law seeks moral behaviour in its subjects. (Claims about the interaction between morality and law, made in this paper, unless otherwise indicated, refer very narrowly to the sort of engagement with morality that I take Dworkin’s account of adjudication to be reliant on.)
2. It is to be assumed that when legal philosophers make the case that morality is ‘part’ of law, they are claiming that morality is part of law in a legally significant, normative way, i.e., that it counts as a ground of law or that it figures in the truth conditions of propositions of law. This appears to be how Dworkin understands the idea. See Dworkin, Ronald, Law’s Empire (Cambridge, MA: Harvard University Press, Belknap Press, 1986)Google Scholar and Dworkin, Ronald, Justice in Robes (Cambridge, MA: Harvard University Press, Belknap Press, 2006).Google Scholar There are no doubt many other ways in which it is sensible to talk of being ‘part of’ law. For example, the ‘Supreme Court’ might be ‘part of’ law in some sense.
3. How a legal system can make such claims is an interesting question, one considered in detail by Gardner (Gardner, John, “How Law Claims What Law Claims” (2009) Oxford Legal Research Paper Series, 44/2008).Google Scholar
4. Certainly, to some, it seems more appropriate to focus on Dworkin’s emphasis on political morality and the schemes of principles that underpin legal practice. However, attention to the examples of moral engagement that Dworkin himself provides indicates that ‘political morality’ must be taken to be a very broad term, encompassing any moral perspective that the judge ‘takes’ to his practice that actually informs his reasoning. Second, however political, however principled or communitarian the object of moral reasoning, it is nonetheless the individual judge who is to make the substantive moral judgment about what really does best justify the practice of law. Whilst Hercules might be ideally attuned to political and community morality, judges can only have their own perspective on what these demands require. Finally, it is, in any case, only when the judge really operates as Dworkin thinks he ought to that law as integrity and a fully reflective account of political morality arises. But Dworkin is very clear that in even the simplest of legal decisions, where a purposeful account of political morality and cohesive principles seems very remote indeed, morality is present.
5. It may be noted that what we commonly call ‘interpretation’ may better be conceived of as the advancement of different forms of legal argument that make ‘possible the assertion of claims for the truth of legal propositions’. Only when forms of argument point in different directions is interpretation activated to ‘repair the fabric of law’. See Patterson, Dennis, “Interpretation in Law” (2005) 42 San Diego LR 685 at 694-96.Google Scholar
6. Different views about the role of morality in legal reasoning underlie ‘exclusive legal positivism’, ‘inclusive legal positivism’/‘incorporationism’ and ‘natural law’. However, even a historical perspective suggests that at least the stereotypical account of these terms is unhelpful. Much of the natural law tradition, for example, tends to challenge what is taken to be its core commitment, i.e., that a law’s validity (as law) depends on its morality: “A human law has the force of law to the extent that it falls in with right reason: as such it derives from the eternal law. To the extent it falls away from right reason it is called a wicked law: as such it has the quality of an abuse of law, rather than of law. Nevertheless even wicked law keeps some trace of legality, since it is backed by the established order which is supported by the eternal law.” (Aquinas, St Thomas in Gilby, Thomas, ed, Summa Theologiae (Oxford: Blackfriars, 1966) 1a2ae at 93)Google Scholar Thomas’s position might be taken to sit quite comfortably with, or at least not to contradict, HLA Hart’s position. See Hart, HLA, The Concept of Law, 2nd ed (Oxford: Clarendon, 1997).Google Scholar Positivism is similarly nuanced, with positivists pointing to the numerous relations (necessary even) between law and morality that leave their positivism untouched. See, for example, Gardner, John, “Legal Positivism: 5% Myths” (2001) 46 Am J Juris 199.CrossRefGoogle Scholar Finnis, interestingly, refers to the ‘sheer oddity of the debate’ about whether there is any necessary connection between law and morality wherein it is (wrongly) ‘supposed that until positivism cleared the air by its robust denial that there is such a connection, legal philosophy was entangled with moralizing and obfuscated by misplaced idealism’ (Finnis, John Philosophy of Law: Collected Essays, vol 4 (Oxford: Oxford University Press, 2011) 7).CrossRefGoogle Scholar
7. The individual nature of interpretation is not intended to suggest that the practice to be interpreted is comprised of individualism: the ‘claims and arguments participants make, licensed and encouraged by the practice, are about what it means, not what they [other participants one by one] mean’ (Law’s Empire, supra note 2 at 63). Nonetheless the individual in the Dworkinian account is ultimately left alone to decide what the collective practice amounts to. Postema points out that Dworkin may make too much of this. It is just a truth that our accounts of anything, however collective that thing, are ultimately our accounts: ‘Of course, ultimately one can only come to one’s own view of the practice. In this trivial sense, even to defer to the view of the majority is to come to “one’s own” view of the practice, viz, that its meaning is determined by the majority’ (Postema, Gerald J, “‘Protestant’ Interpretation and Social Practices” (1987) 6 Law & Phil 283 at 288).CrossRefGoogle Scholar
8. ‘Each judge’s interpretive theories are grounded in his own convictions about the “point”—the justifying purpose or goal or principle—of legal practice as a whole, and these convictions will inevitably be different, at least in detail, from those of other judges’, Law’s Empire, supra note 2 at 87-88. The link between the individual holding of a moral point of view and the idea of ‘law as integrity’ is unclear. Dworkin’s position is that ‘Law as integrity supposes that people are entitled to a coherent and principled extension of past political decisions even when judges profoundly disagree about what this means’ (ibid at 134). The principles relied on, in turn, form part of what law is. This is taken to follow because disagreement, in Dworkin’s account, is what ought to convince us that law is interpretive; disagreement shows that the ‘constructive interpretiveness’ manifest in disagreement is of law (to put it another way the stereo-typical ‘lawness’ of law is not of law). Of course, it is to be expected that accounts of what law requires will differ (including for the reason Dworkin identifies), but the mere fact of disagreement does nothing to suggest that the basis for disagreement is part of the law that the disagreement refers to. Moreover, the morality of diverse accounts is best seen, arguably, to derive from those individuals who are individually committed to those accounts; it is unclear how this morality can be deemed to ‘exist’ in or as law.
9. Often the critical focus is on Dworkin’s account of ‘theoretical disagreement. (For recent examples see Shapiro, Scott, “The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed” in Ripstein, Arthur, ed, Ronald Dworkin (New York: Cambridge University Press, 2007) at 50 Google Scholar; Smith, Dale, “Theoretical Disagreement and the Semantic Sting” (2010) 30 Oxford J Legal Stud 635 CrossRefGoogle Scholar; and Leiter, Brian, “Explaining Theoretical Disagreement” (2009) 76 U Chicago LR 1215.Google Scholar However, apparent instances of theoretical disagreement are merely to make apparent the role that a theoretical moral perspective always plays in law: ‘Hercules does not need one method for hard cases and another for easy ones. His method is equally at work in easy cases, but since the answers to the questions it puts are then obvious, or at least seem to be so, we are not aware that any theory is at work at all.’ Law’s Empire, supra note 2 at 354. The weaknesses in Dworkin’s position, identified in this paper, are revealed most clearly in an examination, not of disagreement, but of what it is, for him, that makes adjudication a moral theoretical activity.
10. For Dworkin, morality is ‘there’ in legal reasoning however apparently practical the argument advanced. Moreover its presence is taken to demonstrate a seamless interpretive flow between adjudication and legal philosophy: ‘Any practical legal argument, no matter how detailed and limited, assumes the kind of abstract foundation jurisprudence offers, and when rival foundations compete, a legal argument assumes one and rejects others. So any judge’s opinion is itself a piece of legal philosophy….’ (Law’s Empire, supra note 2 at 90).
11. Ibid at 124.
12. Ibid at 135.
13. Justice in Robes, supra note 2 at 16. Dworkin continues: ‘The reasons we have for supposing that a body constituted as that body is constituted has the power to make law are reasons of political morality, and if lawyers disagree about the precise character of those moral reasons they will inevitably disagree at least on some occasions about what law the legislature has in fact made.’
14. Justice in Robes, supra note 2 at 29.
15. There are some suggestions that Dworkin’s approach to the role of morality in adjudication and consequently in theorising about law is itself a prescriptive one: ‘[in] the picture of adjudication I want to defend,…judges should decide cases….by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract’ (Dworkin, Ronald, “‘Natural’ Law Revisited” (1982) 34 U Fla LR 165 at 165).Google Scholar But Dworkin’s is a theory of how law does operate, not only of how it should operate or even just of how it aims to operate. See Gardner, John, “Law’s Aims in Law’s Empire” in Hershovitz, Scott, ed, Exploring Law ’s Empire (Oxford: Oxford University Press, 2006) at 207–24 Google Scholar, for an account of what may be irreconcilable attitudes in Law ’s Empire. The examples of originalism and conventionalism make clear, minimally, the fact that for Dworkin, morality cannot be absent in legal reasoning.
16. The pervasive nature of moral engagement in human action is a point well understood by ancient philosophers. In these accounts, it is our mere capacity to reason that makes us accountable for the actions we perform, however unreflective, simple or apathetic our actions actually are. This theme can be traced right through traditional natural law theory, in so far as that scholastic tradition constitutes moral theory, from Plato and Aristotle to the old Stoics, to Aquinas, and it remains prevalent in modern variants of natural law. For a translation of many of the Stoic accounts of the relationship between human actions and human reason, see Long, AA and Sedley, DN, The Hellenistic Philosophers, vol 1 (Cambridge: Cambridge University Press, 1987).Google Scholar (The Old Stoics did refer to a morally neutral category of actions like the absent minded flicking of a leaf. Once reason is engaged or might possibly have been engaged the opportunity for moral insignificance disappears.) See Finnis for whom ‘moral thought is simply practical thought at full stretch’; the failure at least to try to be fully rational cannot by this account be morally inconsequential. (Finnis, John, Reason in Action: Collected Essays, vol 1 (Oxford: Oxford University Press, 2011) at 215.CrossRefGoogle Scholar See also Donnelly for whom it is our capacity to reason and the accompanying lack of necessity in acting according to reason that accounts for the presence of moral meaning in human action (Donnelly, Bebhinn, A Natural Law Approach to Normativity (Aldershot, UK: Ashgate, 2007).Google Scholar Deontic logic yields a similar conclusion with, for example, neutrality (in so far as it consists in a state of Hohfeldian ‘privilege’) counting as a morally acceptable condition (and therefore as having moral import). Other forms of ‘moral neutrality’ in adjudicative acts could comfortably attain moral status under the categories of deontic logic.
17. Kramer and Dworkin’s exchange on the role of morality in and as law brings to the fore the possibility that if morality is part of law in virtue of its role in adjudication, then principles of logic and mathematics, for example, may assert a similar claim to belonging. Both Dworkin and Kramer, for different reasons, deny the same: ‘The principles of arithmetic plainly figure among the truth conditions of some propositions of law … but it would be at least odd to say that mathematical rules are also legal principles’ and ‘ “Though the rule that seven and five makes twelve figures in some legal arguments, it is not itself a rule of law.” ’ See Ronald Dworkin, Justice in Robes, note 2 at 4-5 and 223 and Kramer, Matthew, “Why the Axioms and Theorems of Arithmetic are not Legal Norms” (2003) 27 Oxford J Legal Stud 555.CrossRefGoogle Scholar These particular claims cannot be examined in detail here but neither convinces in their distinct attempts to demonstrate that morality has unique implications for law and its boundaries that other ‘externalities’ do not have.
18. I refer to factual determinants not to denote the ‘facts of the case’ but the interpretation of facts that must play some role occasionally in legal decision making. In determining whether a skateboard is a vehicle for the purposes of a legislative prohibition of vehicles in parks, the judge will be informed by his interpretation of what a skateboard is as well as his interpretation of the purpose of the statute, etc.
19. Of course morality does sometimes have this role but even then the conclusion does not obviously follow that morality is part of law. See Donnelly-Lazarov, Bebhinn, “The Figuring of Morality in Adjudication: Not so Special?” (2011) 3 Ratio Juris 284 CrossRefGoogle Scholar for a summary of why the conclusion does not at all follow.
20. Leiter, in arguing for the superiority of Hart’s position to Dworkin’s, notes: ‘Judges, in the United States, for example, engage in a convergent practice of behaviour of invalidating statutes forbidden by the US constitution. But it is not just an accident that they engage in such behaviour. Rather they take themselves to have an obligation to do so. Ask Chief Justice John Roberts of the US Supreme Court, “why do you invalidate statutes inconsistent with the constitution?” and after he is done being puzzled, he will reply roughly as follows: “Because that is my job, that is what I have an obligation to do as a federal judge”’ (supra note 9 at 1221). Here the judge’s reply ought to alert us to precisely the sort of banal morality Dworkin identifies. Of course there is a morality in the judge’s position but it is of a sort that is commonplace in human action. Leiter notes further: ‘…it is worth pausing a moment to notice the curious dialectical structure of Dworkin’s argument. Why should a theory of law be organized around the phenomenon of theoretical disagreement about law, absent some showing—nowhere to be found in Dworkin’s corpus—that it is somehow the central (or even a central) feature of law and legal systems?’ (ibid at 1220).
21. See Gardner, John, “Nearly Natural Law” (2007) 52 Am J Juris 2 CrossRefGoogle Scholar for whom being ‘responsive to morality is an integral part of being rational’. The article provides a clear and convincing account of our inescapable engagement with morality.
22. Justice in Robes, supra note 2 at 50.
23. I am grateful to Richard Bronaugh for pointing out to me that Dworkin pretty much agrees with Sunstein that many cases do not require going all the way to basic principles (Dworkin, Ronald, “In Praise of Theory” (1997) 29 Ariz St LJ 353.Google Scholar See also Sunstein, Cass R, “From Theory to Practice” (1997) 29 Ariz St LJ 389).Google Scholar
24. Riggs v Palmer 22 NE 188 (NY 1889).Google ScholarPubMed
25. Indeed, as Leiter points out, having put Riggs in its wider legal context, it seems more likely that opportunism rather than theory explains at least the reasoning of Judge Earl: ‘Knowing now what we do about Judge Earl’s views regarding inheritance by convicts, how should we view his interpretive moves in Riggs? Should we accept them at Face Value, as reflecting his deep theoretical commitments about interpretation, or as interpretive opportunism, designed to change the law to undo the effects of Avery at least in certain kinds of egregious cases, like those involving convicts whose crimes facilitate an inheritance? One might think there is a certain unreality—a kind of naivete about legal practice—involved in selecting the former option’ (Leiter, supra note 9 at 1242).
26. If we choose to understand interpretation, in a manner that allows for specific objects of ‘interpretation’ always to be subsumed under more general auspices, then the most basic of human acts can be deemed a philosophical moral account of human existence. This would do damage not just to our understanding of human action but also to the concept of moral interpretation. Indeed, if we are to take seriously Dworkin’s account of the interconnectedness of the domains of ‘constructive interpretation’ there is no reason, a priori, to consider that a judicial ‘interpretation’ ultimately is referable merely to legal practice; an act of judicial reasoning ought to be regarded not merely as a construction of the practice of law but also of life, or the world, or in any case of something not limitable by the genre of law.
27. Nicos Stavropoulos, “Interpretivist Theories of Law” (14 Oct 2003), online: Stanford Encyclopedia of Philosophy http://plato.stanford.edu/entries/law-interpretivist.
28. Dworkin’s equivocation, as Gardner puts it, between the view that law aims to be morally justified and the rival view that law is morally justified is a symptom, in part, of the implications that Dworkin draws from the value that is attributable to acts of adjudication. Moral justification can never be merely an aim, if our necessary engagements with morality are sufficient to establish the fact of moral justification. Dworkin errs in giving a positive value to what is a mere engagement of morality by judges and in locating that morality in the practice of law, rather than with the judges who pronounce it (Gardiner, supra note 15 at 219).