Thomas Aquinas in Summa Theologica1 explains his view of natural law as being universal in nature as it emanates from rationale held by us as human beings; therefore we all share this reasoning. Aquinas defines positive law as being determined by natural law for the common good. It is binding on humans as a collective conscience as it is inherently just. The concept of law being just is crucial to positivism. If a law is unjust it is not regarded as law. A law cannot be produced in name only according to positivists.
Ronald Dworkin, a contemporary American legal philosopher is most notorious for his theory on natural law and legal positivism. This theory is often described as ‘the third way’ and is Dworkin’s response2 to HLA Hart’s theory on legal positivism. For the basis of properly analysing Dworkin’s position relating to the law, we must examine Hart’s analysis of the concept of law. In his book, The Concept of Law3, Hart argues for a set of primary rules of obligation and secondary rules. The essential secondary rule is Hart’s rule of recognition, which sets out the criteria for identifying laws within specific legal systems.
Hart describes this rule ‘… to say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition and so as a rule of the system. We can indeed simply say that the statement that a particular rule is valid means that it satisfies all the criteria provided by the rule of recognition. ‘ This rule of recognition is a device by which to identify the primary rules of obligation. Ronald Dworkin, Hart’s most famous critic argues for the theory of there always being one right answer, one right decision to be made within the law, even if the answer is not apparent.
Whereas Hart argues for a set of legal ‘rules’, Dworkin holds that legal principles4 are more relevant in the development of the law. Dworkin describes these principles as ‘a standard to be observed, not because it will advance or secure an economic, political or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality’. He argues that the difference between rules and principles lies with the fact that rules by their very nature are rigid and often inflexible. The notion of principles lends itself to being open to variation depending on the facts of the case.
Dworkin argues that the point at which these principles become established, for example with judicial precedent, is when judges are faced with so called ‘hard cases’5. However if we take the example of precedent, Dworkin’s principles become rules as they are later used as a means to justify judicial decisions in said ‘hard cases’. This presents a problem in Dworkin’s theory. Dworkin argues that Hart’s rules approach doesn’t allow for the presence of principles within the law. Dworkin also argues that principles do in fact guide the decisions that judges make and also justify those decisions.
However Dworkin states there is no way of explaining every such principle as many would not become apparent until a judge happens upon them in a hard case. Dworkin also fails to explain the legal nature of these principles, although he does state they are binding upon the decision maker. Therefore the problem lies not in establishing that such principles are at operation within our legal system, but rather in not being able to establish their legal status and furthermore how they are proposed to be applied when judges are making decisions or interpreting decisions. H. L.
A Hart later broadened his theory of ‘rules’ in order to allow for judges to apply ‘legal standards’6 within their decision making. Hart does acknowledge that these standards may inhibit a judge’s ability to make decisions in hard cases but maintains that there must be numerous decisions that arise out of these cases that can be justified by these standards. Dworkin rebuts this position due to its rigidity and vagueness when allowing for judicial reasoning on hard cases.
In his book, Justice in Robes, Dworkin poses the question ‘how should a judge’s moral convictions bear on his judgements about what the law is? 7 He argues rather than for a separation of law and morality, as in positivism, for a marriage between the two. Dworkin believes that the interpretation of law by judges is almost a futile exercise as the law leaves ‘holes’ which must be filled by a judges own intuitive understanding of justice. Dworkin presents the notion that judges who do not agree to moral interpretation of the law do so without even intending. That is, that in their explanation of how a law came to be created, they are explaining the moral reasons in which the law became a law and inevitably he or she will be drawn to outline what they interpret to be valuable.
Dworkin believes the idea of a judge being able to totally cast away his or her morality in following the law is impossible. This intertwined relationship of law and morality is something Dworkin rejoices in. Every law that was created is nothing more than a systematic arrangement of moral values held by the creators, therefore the idea that judges should look to their own ‘moral compass’ when interpreting the letter of law is totally logical. Dworkin takes this idea further stating that law is ‘but a department of morality’8.
Essentially Dworkin is arguing that it is a judge’s subjective understanding of our inherent morality that determines justice rather than, as positivists may argue, the force of the law itself. However this idea that morality and jurisprudence are interchangeable is open to criticism. It does not seem feasible to state that every law owes its creation to an underlying morality. Many laws were created due to pure political agenda; indeed most laws created under Nazi rule in Germany would now be viewed as devoid of any sort of morality as they were created under a regime that the modern thinking world views as malevolent and immoral.
Furthermore what Dworkin proposes could be viewed as akin to judicial freedom of the interpretation of laws. Surely such a practice would lead to anomalies in the law, which would defeat the doctrine of precedent, being as no two individuals operate on identical moral codes. Perhaps Dworkin’s approach to decision making is better suited to the creation of legislation rather than the interpretation of it by judges. Legislators, in theory, take into consideration the desires of society as a whole when creating legislation and as such legislators in some form liaise with members of the electorate.
Conversely judges make their decisions without any communication with the elector; therefore judges are perhaps not the relevant vessel in injecting morality into the law itself. In spite of these criticisms of Dworkin’s proposed normative decision making, one thing is clear; judges are the essence of the law. Whether it’s right or wrong, a judge’s moral interpretation of the law does determine the outcome of a case and therefore the application of the law. This is evidenced when two cases with similar facts but two different judges end with significantly varying results.
What other reason could there be for this than the judge’s personal interpretation of what he believes the law to be? Our consciences as human beings guide us in every decision we make; why should our judicial officers be exempt from such a human characteristic? Dworkin expanded on this notion of judge’s as moral reasoners when he proffered the idea of Hercules,9 the ideal judge, endowed with supernatural powers and the ability to integrate morally just principles into legal decision making.
He offers that an ideal judge will interpret a legal system as a whole as opposed to real judges who give only a partial interpretation. It is always relevant for him (Hercules) to expand his investigation by asking whether the conclusions he reaches are consistent with what he would have discovered had his study been wider’. The problem raised here is whether the ideal judge infringes the rights of the democracy. A democracy is in theory a form of government in which the supreme power is vested in the people and exercised directly by them or by their elected agents under a free electoral system. A single ideal judge would contravene the notion of a democratic society entirely. Anther theory Dworkin offers is that of the chain novel.
He argues that ‘a judge should decide fresh cases in the spirit of a novelist in the chain of writing a fresh chapter. The judge must make creative decisions, but must try to make those decisions ‘going on as before’ rather than by starting in a new direction as if writing on a clean slate’. He also maintains that judges can expand on existing legal practices and show them in a better light than before. However he also holds that the principles which form the basis of the judges deciding on such cases must be influenced by and derived from the political desires of society as a whole.
Dworkin fails to explain the extent to which judges can depart from such legal practices when interpreting the law. This poses a ‘slippery slope’ argument. If judges are supposed to decide cases with the influence of their conscience, then the outcome of a ‘hard case’ would be entirely unpredictable. Dworkin does however present the ‘right answer’ thesis. This is the idea that the mythical judge has the ability to choose the correct decision for each case. Dworkin’s aim in this metaphor is to show that it is almost always possible to reach the decision that justifies the law as a whole.
The mythical judge has the ability to weigh up all the social and political issues surrounding a case and still reach the ultimate right, moral answer. Dworkin accepts that there are holes within laws and legislation alike, which often leads to the most competent lawyers arguing about what is the best possible decision. It is these types of decisions in ‘hard cases’ that Dworkin believes Hercules would be able to reach. The conflict this presents is the standard to which we hold judges.
We cannot reasonably hold real judges to mythical measures; so to expect them to reach the right answer for every case is entirely unrealistic. Real judges do not have supernatural powers giving them the ability to foresee every issue that arises in a case, therefore the mythical standard is not pertinent when discussing real justice. A more realistic approach is to expect judges to make their decisions on the objective rather than subjective standard, and by this assess the wants of the electorate in keeping with the nature of a democratic society. Another issue is that of the conflicts within the law itself.
It is not only in the written word of the law that problems and inconsistencies can be found; the principles of which Dworkin speaks are not infallible. Even the most learned lawyer could find the principles insufficient when solving ‘hard cases’. Law is in nature utterly fallible. It is the written word of man, created by man, for man and as such is incommensurable. If something can be viewed as so fundamentally flawed, would even the mythical Hercules be able to find the right and just answer? In his article ‘Natural’ Law Revisited10, Dworkin sets to explain some of his more challenged theories.
Regarding the aforementioned point that the mythical judge could be viewed as undemocratic, Dworkin states ‘It is hardly more democratic for judges to rely on their own convictions about the best design of the future than to rely instead on their convictions about the best interpretation of the past’. He argues that conventionalism, i. e. the idea that fundamental principles are grounded in implicit or explicit agreements in society, is fundamentally undemocratic as it essentially based on judges making their decisions based on what they see as the best case scenario for the future.
Whereas Dworkin’s proffered theory of naturalism, the notion that principles are guided by past events, in this case the law, is more democratic as it is more feasible for judges to work with decisions of the past rather than seeing to the future. In theory this idea is entirely practicable, naturalism does seek to work with previous decisions and at most allows judges to interpret legislation in the best possible light, without changing the fundamental aspects of the purpose the legislation was created for. A point that Dworkin fails to address is that of human rights when reaching decisions in cases.
The right answer may not have to be held to a mythical standard. If a decision can ensure that society can live as they see fit (providing that how they wish to live does not infringe on the liberty or rights of anyone else) then surely it would be a ‘right’ decision. Such ‘hard cases’ should fundamentally be decided to best aid the liberty of society at large. Ultimately though there can be no single right decision for each case, mainly because of the nature of law and principles and the many ways in which they can be interpreted.
This is why judges must operate on an objective almost utilitarian standard, to provide the best possible outcome for the largest portion of society. This is the only way judges can work whilst doing justice to democracy. Dworkin’s theory is ultimately too idealist to be properly integrated into a system of ‘real’ justice. Hercules is mythical, real judges are not. Law is not immoveable and unchanging, it alters and revolutionises as society does, therefore there can be no singular correct answer; the very notion of this is not in keeping with how our principles as humans change with the times.
Instead it is better and more just to accept that our decisions must be based on aiming to come to the best possible decision based on the facts presented, rather than the ‘right’ answer. This idea is entirely viable and in keeping with our nature as imperfect human beings. It is possible for us to reach the decision which serves the population as a whole, but the definitive ‘right’ answer does not exist as we are morally autonomous beings and therefore our interpretation of morals differs from person to person.