Dworkins Distinction Between Ethics and Morality - Essay Example

Dworkin’s Distinction Between Ethics and Morality Dworkin’s article Liberal Community debates the issue of whether or not the criminal law should serve as an instrument for enforcing “conventional ethics”.1 In this regard, Dworkin’s theory of ethics distinguishes between that which is right and that which is moral. Morality is difficult to codify because there is no universal moral code. Thus ethics can be used to draw specific lines and establish minimum standards of conduct.2 The law and legislators’ success therefore depends on the members of a community accepting the ethical standards promulgated.3 In other words, morality is regulated and it is a significant part of the political community. Certainly, morals are informed by both “majorities” and “minorities”4 and it therefore makes sense that standards are set, regulated and enforced by via executive functions. For Dworkin, it is within this paradigm that the political community exists. The political community is a pivotal point of individual and collective identity. Depending on whether or not the political community is successful or not, members of the community will either perceive that the political community enhances the quality of our lives or limits it.5 According to Dworkin, morals and religions differ and conflict among groups and thus it is impossible to construct a universal legal or communal code that embodies all moral and religious ideologies and values. Thus, political communities set limits and standards for all.6 In this regard, Dworkin’s conceptualization of the relationship between morality and ethics explains the relationship between morality and the law in a way that is consistent with Rawls’ idea of justice.7 For Rawls, justice is achieved by setting standards, but by avoiding prohibiting moral and religious beliefs that deviate from the established standards. A just society instead will tolerate the views of others.8 Similarly, Dworkin advocates for a political framework that takes a neutral stance in that it does not favour one set of religious or moral values over another.9 Rawls conceptualization of justice and the political community is more realistic than Dworkin’s theory. It is conceivable that a legal and/or political framework can set and enforce specific moral standards and at the same time recognize and tolerate other religious and moral standards that are different from the normative standard. This would accord with ideas of equality. Thus Rawls’ theory of political liberalism makes more sense than Dworkin’s theory of liberal community. Dworkin advocates for a neutral framework while admitting that it is impossible to formulate a universal moral code. Arguably, in order to be neutral, the political community’s framework must reflect the common values of all members of the community. The values and morals of some members of the political community will be left out since the liberal community must determine and set standards for all to follow. Therefore, Dworkin’s theory of liberal community is a bit contradictory. Nevertheless, Dworkin insists that law and the liberal community that informs the law is beneficial to members of the community because it formulates standards thus facilitating fairness and certainty. It also ensures that members of the community are treated equally and thus makes the community more sincere and enhances the moral rationale for the exercise of executive powers.10 The difficulty with this aspect of Dworkin’s reasoning however is that the executive may decide to treat all members of a community with equal oppression.11 In such a case, would the executive have a moral justification for the exercise of its powers? The answer according to Gough and Stables is found in Dworkin’s general assumption that the liberal community is structured around respect for rights and dignity of the members of the community. This respect requires non-discriminatory treatment and the just allocation of resources and power in a “representative democracy”.12 In this way, Dworkin’s political theory has a sounder basis than the political theory of Rawls who argued that equality was based on purely equal treatment of the law. Dworkin went a bit farther in terms of the equal allocation of resources and he also argued for a “principled application of law” based on “integrity” and not merely the equal application of the law.13 Dworkin’s principled application of the law envisages a practice in which some aspect of individual freedom is surrendered in favour of equality.14 Essentially Dworkin argued that political judgments were required to make free of perceptions of what amounted to the “good life”.15 In order to be neutral, it was necessary for the state to exercise authority in a way that was free of what is a reflection of universal morality from the perception of the privileged. A neutral state permitted its citizens to pursue their own conceptualization of the good life.16 The state as a neutral institution was also tolerant. It is only when the individual’s pursuit of the good life interfered with another’s pursuit of the good life should the state intervene.17 Thus the freedom is qualified in the sense that individual freedom belonged to members of a community individually and collectively. The individual’s freedom to pursue the good life would be tolerated where it was capable of being tolerated. In other words, if an individual’s pursuit of the good life caused harm to another or to the community, that individual’s pursuit of the good life would not be tolerated. In the final analysis, Dworkin’s liberal community was formulated around principled reasoning. A clearly defined moral standard would set the limits by which individuals co-existed within a just and fair community. The liberal community that distributed its resources equally and fairly, guided by principles was a stable society with a moral underpinnings. Thus ethics or principles were distinguished from morals. It is this distinction that makes the connection between law and morality. In this regard, Dworkin subscribes to the idea that individual freedoms are prescribed by laws that are informed by principles and ethics. Morals automatically follow from these principles and ethics. Although individuals may differ in their moral values, they are all bound by the principles and ethics that define law which in turn define acceptable and tolerable moral practices. Question 2: Austin and Hart Austin and Hart had two diametrically opposed views as to the compulsion to obey the law. For Austin, the command theory dictated the individual’s compulsion to obey the law.18 For Hart, the individual was compelled to obey the law as a result of his own inner moral code and ability to reason.19 Thus both Hart and Austin recognized law as a human directed institution, but at the same time disagreed on the impulse that commanded obedience to the law. Austin’s command theory argued that law was a blind commitment free of human will. The individual was compelled to obey the law as a result of the fear of punishment. Austin wrote: Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, the Court of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up, in pursuance of the law of which I have impugned the validity.20 In other words, from the perspective of Austin, the state, via the law was all powerful and entirely coercive. Individuals were merely obligated to obey the law out of fear of punishment only. Obedience to the law had nothing to do with moral convictions. Additionally, individuals did not obey the law quite simply because he or she was moral or appreciated the wisdom connected with the law. In this regard, Austin’s command theory is consistent with “the tenets of legal positivism”.21 Hart, however, took an entirely different approach to the concept of law. For Hart, law could not be understood or rationalized by reference to punishment. In this regard, it was important to understand that law itself was not simply about criminal laws which relied on punishment for enforcement. There were other laws which gave individuals private and public rights and authority. For instance, the law of contract and tort conferred upon individuals specific rights that they could enforce. Administrative laws conferred upon the individual enforceable public rights. Moreover, that state had to authority to legislate, apply and enforce any number of public and private rights for the purpose of establishing a social order free from the threat or fear of punishment. For example, traffic law provided for a system in which individuals cooperated and coordinated the right to use the highway in a way that ensured the safe use of the highway by all. In these kinds of laws, there is a moral or personal interest in obeying these laws.22 The difficulty with Hart’s theory of law is that although there might be moral or personal compulsion to obey laws such as the traffic laws, there is also the fear and the threat of punishment. Therefore both Austin and Hart may be right. There are moral individuals who would obey the criminal laws regardless of the punishment. Similarly there are individuals who would disobey the criminal laws regardless of the fear or threat of punishment. Likewise, there are individuals who would drive recklessly regardless of the laws that compel them to do so. In other words, some individuals are likely to be guided by their own individual conscience while others will not. Thus the law can be seen as setting standards for acceptable behaviour and at the same time operates on the presumption that not all humans are rational, moral beings. Moreover, it is important to note, that the non-criminal laws that Hart uses to support his argument that not all laws are punitive in nature, are laws that induce obedience by punishment and or sanctions. Thus these laws are not solely obeyed on the basis of a personal or moral code of ethics or principles. For example, in a claim for breach of contract or negligence pursuant to tort or a traffic offence, a successful claimant will be awarded damages, or fines. It is therefore possible to argue that individuals are compelled to obey tort or contract or traffic laws as a result of the fear of punishment rather than on the basis of some moral or personal code. If individuals were guided by moral and personal codes in their decision to commit or not commit a breach of the law, there would be no need for laws. In this regard, Austin’s command theory and the sheer power of the law have greater currency. Austin’s command theory realistically informs that not all men are rational and thus the law is needed to force men to make rational choices. Austin’s command theory is thus consistent with the theories espoused by legal positivists because it essentially takes the position that law is a science and as such performs a clinical function and it does not perform a moral function.23 It therefore follows, that Austin’s command theory thus distinguishes itself from the theories of natural law as espoused by Hart. Law is a necessary tool for maintaining the social order as man, if left to his own devices would result in total chaos and disorder in society.24 Austin argued that the sovereign obtains it authority from its ability to perpetuate a fear and threat of punishment under the letter of the law. Thus law is entirely binding on man and society and this binding nature of law is facilitated by the threat and fear of punishment and not by reference to an individual’s internal moral code. As Austin points out: . . . being liable to the evil from you if I comply not with a wish you signify, I am bound or obliged by your command, or lie under a duty to obey it.25 Hart therefore assumes that man is rational and moral. This is an assumption that Austin is not prepared to adopt. Austin takes the more realistic position that man and law must be informed by the propensity for man to follow his desires which can lead to tensions and thus conflict in society. Hart, unrealistically argues that man, by nature, will weigh the morality encoded in laws and will inevitably choose to obey the laws because they reflect his moral code and personal interests in living in an ordered society. Bibliography Austin, J. (2004). Lectures on Jurisprudence: or The Philosophy of Positive Law, 5th edit., R Campbell (ed.), New York, NY: The Lawbook Exchange. Austin, J. (1995). The Province of Jurisprudence Determined. Ed. Rumble, W. E. Cambridge, UK: Cambridge University Press. Dworkin, R. (May 1989). “Liberal Community.” California Law Review, Vol. 77(3): 479-504. Fleerackers, F. (2000). Affective Legal Analysis: On the Resolution of Conflict. Berlin, Germany: Duncker & Humblot GmbH. Gough, S. and Stables, A. (2008). Sustainability and Security within Liberal Societies. New York, NY: Routledge. Ingram, D. (2005) Law: Key Concepts in Philosophy. New York, NY: Continuum International Publishing Group. Murphy, A. (2002). Conscience and Community. University Park, PA: Pennsylvania State University. Rawls, J. (1993). Political Liberalism. New York, NY: Columbia University Press. Roederer, C. and Moellendorf, D. (2004). Jurisprudence. Landsdowne: Juta and Company Ltd. Rosen, M. (1998). “The Outer Limits of Community Self-Governance in Residential Associations, Municipalities, and Indian Country: A Liberal Theory.” Virginia Law Review, Vol. 84: 1053-1144. Schauer, F. (March 2010). “Was Austin Right After All? On the Role of Sanctions in a Theory of Law.” Ratio Juris, Vol. 23(1): 1-21. Selznick, P. (May 1989). “Dworkin’s Unfinished Task”. California Law Review, Vol. 77(3): 505-513. Smith, G. (2002). Liberalism: Critical Concepts in Political Theory. London, UK: Routledge. Tebbit, M. (2004) Philosophy of Law:An Introduction. New York, NY: Routledge. Read More