Dworkin, third notion of jurisprudence, legal interpretivism purports to straddle ever so slightly in between the two main notions. Legal interpretevism, ‘argues that not only the specific rules enacted in accordance with the community’s accepted practices but also the principles that provide the best moral justification for those enacted rules’. Further suggestion that law is not a set of given data, with conventions or physical facts, but what lawyers aim to construct or obtain. This therefore supposedly separates positivism from interpretivism. It details that there is no separation between law and morality, however there are differences, which differs from classical positivism, and finally that law is not immanent and nor do legal values and principles exist independently of the legal practice itself.
Legal interpretivism, is a theory on the nature of law, which presumes that law should not be investigated as what is the law at any time or place, but generally a more expansive question of what in fact is the law. However what makes Dworkin believe that the law itself can be an interpretive concept? ‘When a concept is identified as interpretive a number of characteristics of that concept are revealed: initially, there exists a shared practice in which a group participates; secondly participants in the group treat the concept as interpretive by disagreeing about what the practice really requires; thirdly interpreters assign value and purpose to the practice and they form views about what particular propositions about the practice are true or false in the light of the values and purposes of the practice; and finally the interpreter is constrained by the history or the shape of the object of the practice in understanding its purpose. This Dworkin believes, applies to law, and therefore the interpretive should apply.
Therefore how do the principles apply in reality? One case, that Dworkin refers to frequently to emphasise his stance, is the disapplication of rules favoured by the positivists with Dworkin’s preferred use of principles, is illustrated within the infamous case of Riggs v Palmer, the facts of this case are simple. The New York court had to determine whether the heir named in a will of his grandfather, was still entitled has a beneficiary despite murdering his grandfather to speed up his claim, with fear of being removed as an heir. Herbert Hart, believed this case was an example of the second strand of positivism, as there were no legal rules for the judge to follow on such a subject, and the judge must therefore decide upon which of the legal rules would be of best policy and therefore made a judgment based on the most appropriate social policy. However, Dworkin believed that this attempt by Hart fell flat in two respects. Initially this case, being so enigmatic does not seemingly appear to lie at the edge of the legal rules, instead it is very clearly central. Despite this the majority did not apply the legal rule as required. And secondly there appears to be a legitimate debate about what the law is and not what the law should do, and this according to Dworkin should not happen in legal positivism. The decision seemingly rested upon the judiciary reaching a moral decision, as ‘no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime’. This therefore highlights Dworkin’s association and liking for the system of natural law and the inextricable link law has with morality.
A further instance where Dworkin highlights the issues and ineffectuality positivism places on the law can be seen within Henningsen v Bloomfield Motors Inc, which Dworkin believes capitulates the ineffectuality of the positivist approach. When discussing Hart’s model of rules and the discretionary thesis from ‘The Concept of Law’, it becomes quite apparent that this result acts as an exception, contrary to the jurisprudential merits of positivism. Within this case the plaintiff, attempted to claim for damages, despite having signed a liability waiver, prior to the rental. The court held in favour of the plaintiff and subsequently seemingly rejected any rules that stipulated that such a waiver should be accepted at law, and instead evoked a principled approach associating the social aspect of the dealer and the freedom of contracts as explicitly valuable reasoning within this realm of law.
This judgment according to Dworkin is not a departure from the norm as a positivist may interpret the judgment, it was in fact the principles within law, that generously come into play in cases where the appropriate legal rules are not available. “Once we identify legal rules different from legal principles, we are suddenly aware of them all around us. Law teachers teach them, law books cite them, legal historians celebrate them”. With these principles operating in hard cases, they act as a guide in judicial decision-making. This differs from the positivist view as such cases if applying the discretionary thesis would not comply, and in this particular case, allowing the moral elements of the judiciary to create a sound decision, once again highlighting Dworkin’s diaphanous veil of natural law values.
Ronald Dworkin’s critique of law and adjudication in purely positive law echoes quite strongly with the laurels of natural law. Dworkin explores an initial dimension of social fact sources such as statutes and precedent noted by Dworkin as “legal materials”, the final most important dimension denotes ‘moral standard[s], those prevalent in the judge’s community that will be accepted as morally sound’ and it is transparently obvious that Dworkin believes that an interpretation of our law which is morally sounder will be legally correct even if it fits the legal materials less closely than alternative interpretations. The moral standard Dworkin requires fits with the natural law doctrine, and could be seen as a reason to identify him within that group. ‘We must therefore do our best within the constraints of interpretation, to make our country’s fundamental law what our sense of justice would approve, not because we must sometimes compromise law with morality, but because that is exactly what the law, properly understood itself requires’.
Having, through personal reading witnessed the development and the intricacy of Dworkin’s work develop throughout his literature, it is clear that Dworkin is very aware of the interdependent allied force morality and law possess, which is why he consequently as a final suggestion from Justice in Robes he notions that perhaps ‘we might do better with a different intellectual topography: we might treat law not as separate from but as a department of morality’. Such a phrase signals the turning points for his next development within jurisprudence, the one system approach, visited in his subsequent publication Justice for Hedgehogs. Furthermore the phrase resonates obviously with that of the natural law, however is it really necessary to pigeon hole such an influential and extensive writer, as it is clear that a ‘philosopher by nature… goes straight to the point without relentless enquiry into what other people say’.
Despite the differences between Dworkin and natural law, namely the ability to manipulate and adapt justice, is this enough to anoint him with a mantra that shows a new approach to jurisprudence? Dworkin, conforms with natural law thesis that law and justice are inexplicably linked, as within Law’s Empire he says:
‘Law is also different from justice. Justice is a matter of the correct or best theory of moral and political rights… Law is a matter of which supposed rights supply a justification for using or withholding the collective force of the state because they are included in or implied by actual political decisions of the past’
Here the fragility of law becomes quite apparent, with its existence resting quite delicately on the stronger themes of justice being pursued and conquered, consequently the “best” laws are those that capture the stronger of the two components, justice. Again this emphasises the reasons as to why Dworkin, by some may be regarded as a natural lawyer. However this can be seen as the end of the mirrored virtues between natural jurisprudence and that of interpretivism.
So is Dworkin a natural lawyer? He does reject ostensibly the separability thesis, acknowledging the moral requirement of law a rudimentary factor in the furthering of justice, however the main difference, being that the term justice has no fixed definition and this is not concurrent with general natural law themes. Consequently this draws the question what exactly is legal interpretivism, and does it have enough sustainability to differentiate Dworkin from natural law enough to be seen as a third school of thought?
Dworkin further recognises that justice and law should ideally, in a legal utopia, be unified, however different to naturalists they may also be separate and are not always truly identical. Instead he recognises that law and morality share an interdependent existence. This communicates that we perhaps are not morally to blame each and every time we transgress a law, as the law may be “so unfair or unjust that the normal moral obligation to obey the law lapsed”, and further “no one thinks that the law as it stands is perfectly just”. Consequently emphasising that the positive law is not entirely separate from moral force.
John Mackie, in a response to Dworkin’s legal interpretivism, further highlights the similarities to the natural law doctrine, in the manner that this theory seemingly allows the consciences and the speculations of the judges to intervene more significantly, with reference to their traditional mores and values, in the way that law operates.
An important debate, can be seen in line with Professor Cover’s examples of the pre-Civil War slavery cases. Where the actions of the judiciary, who strongly believed quite contrary to the content of the statutes, still enforced the laws, which could see the returning of slaves after they had escaped. Dworkin, believed that the judges within this case were ‘as citizens, politically committed: they were anti slavery on grounds of principle’. This in Dworkin’s belief is where his notion of jurisprudence would have been best understood, had the judiciary been aware of the role of principles in legal argument, provided in fact that they were not foreclosed by positive law. This explanation, in response to criticisms from John Mackie, can be shown to exemplify the ‘middle-ground’ emphasis, Dworkin’s interpretivism can represent, as the aspect of positive law, is not refutable unless of course it is a ‘hard case’ where in fact it would then be at the judge’s morally sound vice that depicted social norms would result. However, is it a modern day natural lawyer’s approach to the practicality of law?
As Dworkin conceives it then, the judge must approach judicial decision by performing an exercise in moral philosophy. Thus for example the judge must decide cases on the basis of those moral principles that “figure in the soundest theory of law that can be provided as a justification for the explicit substantive and institutional rules of the jurisdiction in question”. Consequently, according to Dworkin, that “must carry the lawyer very deep into political and moral theory”. Thus, in so far as judicial decisions necessarily adjudicate claims of right they must ultimately be based on the moral principles that figure into the best justification of the legal practices considered as a whole. The dismissal of all three of the generic theories of positivism, conventionality, social fact but mainly the separability thesis in its dismissal duly places Dworkin in the naturalist camp.
Within Justice for Hedgehogs, Dworkin, inspiringly uses an organic horticulture metaphor, which suggests that the two system argument that law and morality shares as a common denominator within the positivist and natural lawyers view, should instead be replaced by a one system conception of law and morality. Dworkin’s “one system”, suggests that morality is at the foundation of the society, with law branching away from the foundation, thus morality, is definitely in Dworkin’s opinion a de rigueur of law. This one-system principle; highlights Dworkin as a neo-naturalist, with his effervescently constant reference to law as a political morality, emphasises the basic composition of a natural lawyer. ‘But once we reject the two-systems model, and count law as a distinct part of political morality, we must treat the special structuring principles that separate law from the rest of political morality as themselves political principles that need a moral reading’.
Ultimately, despite Dworkin’s best efforts to elude the tag of natural law, all the evidence seems to suggest that ultimately he is a contemporary of this school of thought. Although by dismissing the permanent nature of justice, it is in my personal opinion that he is merely adapting and evolving the theme of justice, as to accommodate the ethnic and moral pluralism embodied in twentieth and twenty-first century western world. His criticisms of positivism by the lack of interpretive inclination instead, governed by a ‘a model of rules’, suggest a new path, however, it does become clearer upon extensive reading of Dworkin and his virtues, that this is an evolution of natural law, requiring judges, when there is not precedent in “hard cases”, the judiciary should allow guidance from morally based principles, in order to in Dworkin’s opinion honour justice. However, it should surely just be read as jurisprudence for the future, with Dworkin ultimately being a morality based pioneer, under the natural school of law thought. Furthermore, with obvious parallels with natural law, was this creation simply a neologism, to define his own personal school of thought, acting as a vizard; as ultimately as Dworkin himself notes; ‘no one wants to be called a natural lawyer’.
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