Defining Law, Ronald Dworkin - Essay Example

Defining Law The Oxford English Dictionary defines "law" as "a rule or system of rules recognized by a country or community as governing the actions of its members" (2001). Indeed, for centuries philosophers have attempted to define, prioritize and characterize the essential elements of law and functional legal systems, discussing such conceptualities as the nature of law and the relationship, if any, between law and morality. Certainly, as members of society, we tacitly agree to abide by a social contract comprised of a particular set of rules. Only this way can some measure of social order be achieved and attained. Yet the questions remain as to who should implement these rules, whether the rules should be general or specific, and whom the rules should be protecting. Undoubtedly, to be of use, most rules or systems of rules require a method of enforcement, whether the method be remedial in nature, such as a civil judgment, or a penal sanction imposed in a criminal matter. John Austin, a proponent of the social fact thesis of legal positivism, contends that the primary distinguishing feature of a legal system is whether its rules can be enforced (1995). Austin argues that a rule of law in society is legally valid if and only if that rule is commanded by the society's sovereign and is backed up with the threat of sanction, or enforcement (1995). As such, it is Austin's position that the essential element of a law is whether someone has the ability to sanction its noncompliance. Austin's position seems tenable. Indeed, without enforcement, laws have no effect. To ensure compliance, and in the absence of any moral obligation to obey a law, an absence which we must presume, a law must impose a consequence for a violation. Even the rules that govern the application of law, such as rules of procedure, require some sort of sanction for a breach. A prominent philosopher of law, H.L.A. Hart, has suggested that Austin's position on enforcement is clear when applied to those laws that restrict our behavior, but is inapplicable to the set of rules that grant us the power to create rights and obligations, such as contracts and wills (1994). Even those rules, however, are "enforced" through sanction, to wit, the threat of litigation and the possibility of voiding, for example, a created document should it contain a flaw. And the essence of such litigation, indeed the very root of its existence, is that law is subject to interpretation. Ronald Dworkin, a pillar of modern legal philosophy, believes that adjudication is and should be interpretive (1982). According to Dworkin, judges should look to the "political structure of their community" when deciding hard cases by, first, ensuring that their interpretation is in accordance with the community's existing legal practices, and, second, that the interpretation is presented in the best moral light (1982). As such, Dworkin posits that a law is specifically characterized by its language, the facts to which the law must be applied, and the best moral application of that law given the social practices of a particular community. The idea that law is a set of rules subject to interpretation was also recognized by the legal realist movement. Inspired by John Chipman Gray and Oliver Wendall Holmes, and reaching its analytical peak in the 1920s and 1930s, legal realism contradicted legal formalism by asserting that judicial decision making is guided far more frequently by the political and moral insights of the judge rather than by legal rules (Himma, 2006). Legal formalism embraced the concept that a judge's decision, or holding, would always logically follow from the legal rule being applied to a particular set of facts, leaving little or no room for interpretation (Himma, 2006). The realist model asserts the opposite extreme, claiming that (1) any matters worth litigating are thereby divisive enough to require interpretation of the applicable rules, (2) judges make new law in exercising discretion when deciding legal disputes, and (3) when deciding indeterminate matters, judges are influenced more by their political and moral persuasions rather than by legal considerations (Himma, 2006). Perhaps the most extreme theory advanced in favor of the true indeterminacy of law is the critical legal studies (CLS) movement. CLS proponents contend that law is rarely, if ever, determinate, but is rather subject to the natural inconsistencies prevalent in society (Himma, 2006). And, it is these inconsistencies that give rise to the indeterminacy of law, allowing for a wide range of interpretation and application that eventually shape a given legal system and its rules. To what extent, though, should the authority of lawmaking be placed in the hands of judges, who are by and large not responsible to an electorate That law must be and is subject to interpretation is evident. Judges must exercise their discretion in deciding, for example, whether consideration was given to form a binding contract, or whether a particular piece of damaging evidence should be shown to a jury determining someone's guilt or innocence. Even lawyers do their own level of interpretation of the law in deciding whether to take on a particular case or whether a drafted will is subject to probate. But, how much of law is meant to be a mere guide to appropriate, or lawful, behavior, and how much of it is strict regulation of conduct The answer to this question will vary from jurisdiction to jurisdiction, depending on the ideology of the existing government and the historical relationship between the government and its people. Certainly, some laws offer guidance rather than require strict adherence. For example, the vast area of tort law offers guidance as to what constitutes assault and the requisite proof to demonstrate causation. And criminal law, regulatory by nature, is replete with rules that guide rather than dictate, such as the weight a jury is permitted to give to particular evidence or the factors to consider in determining guilt or innocence. Equally prevalent, though, are the laws and rules that prescribe behavior for the orderly and predictable existence of society. To illustrate, imagine road rules offering mere guidance, rather than determinate stricture, as to what side of the road to drive on. Or, envision a society where the prohibition against homicide was a mere suggestion or guide as to appropriate conduct. Consider, though, that even a strict regulation such as that prohibiting the killing of a human being has its areas of indeterminacy, such as when the issues of self-defense or mental incapacity are raised. Some rules and laws regulate actions necessary to prevent the self-infliction of injury, and are regulatory rather than guiding. For example, laws that require children to wear bicycle helmets, mandate that passengers in a vehicle wear seatbelts, or prohibit the underage drinking of alcohol do not offer guidance for conduct, but rather provide strict parameters for adherence. Indeed, this form of law making, dubbed legal paternalism, has given rise to a debate amongst legal scholars as to whether a sovereign can or should compel a person to act or abstain from certain conduct for his or her own benefit (Himma, 2006). Gerald Dworkin, a proponent of legal paternalism, contends that the attainment of certain assets such as good health and education are vital to existence and are, therefore, imposable by the sovereign's coercive force as long as the sovereign demonstrates that a rational person would desire such assets, that the potential harm of the lack of such assets is significant, and that the proposed restriction is the least restrictive alternative (1972). Certainly, law is comprised of rules that offer guidance and those that offer strict regulation. In either case, though, the relevant inquiry is whether the law regulates something that a sovereign has the right to restrict or enhance. Moreover, whether offering guidance or requiring strict obedience, the law should be clear enough so that rational people can modify their behavior accordingly. Finally, and again whether it offers mere guidance or absolute regulation, a rule should be prospective, lest a sanction for its violation prove unfair and ineffective as a tool to modify conduct. Associated with understanding when one's behavior has transcended the line of legality is an awareness of when one has been potentially injured in the eyes of the law and, therefore, entitled to seek a remedy in court. Certainly, without a redressable injury in fact caused by the named defendant, such person's case would not be welcome in a court of law. Standing to sue, like the issue of jurisdiction, is a preliminary hurdle that any potential lawsuit must overcome to ensure that the parties before the court are legally affected by an ultimate judgment. The issue of who may bring a case to court, though, is but one of the many preliminary factors a court must consider before allowing a potential lawsuit to proceed. As such, standing is certainly an element of law, but not necessarily a defining characteristic. Already mentioned is the question of jurisdiction, without which a court has no authority over the parties or the matter at hand. Nor can a court hear a case stemming from an injury that has yet to be inflicted or a harm that is but potential. Moreover, a plaintiff may not pursue a case that seeks to litigate a moot issue. To be sure, a plethora of procedural, or secondary, rules exist. Some are merely procedural, like the timing of claims and defenses, and others are more substantive, like those that govern who may bring a case. It is the combination of such rules though, not any single rule on its own, that helps characterize law. Truly characterizing law, though, are the rules that distinguish between criminal and civil matters, as those rules transcend many areas of jurisprudence. To begin, in a civil case, the aggrieved individual is a party to the action, namely, the plaintiff, and he or she decides whether to file suite. In a criminal matter, though, the injured party in fact, namely the victim, is not a party to the criminal prosecution, which is usually commenced by the injured party in law, namely, the sovereign with jurisdiction over the crime. Indeed, a criminal prosecution often proceeds without the willingness or consent of the victim, such as in a prosecution for homicide, where the victim is unavailable, or for rape, where the victim may be afraid or ashamed. Moreover, the relative impositions on a civil defendant are far less severe than those on a criminal defendant, whose very freedom can be restricted even before an adjudication of guilt. To balance the need to curb a criminal defendant's freedom, states often afford him or her rights not available to a civil defendant, such as the right to an attorney. Furthermore, in rendering a judgment, a jury hearing a criminal matter need not be as convinced of fault as does a jury hearing a criminal matter, predominantly because of another difference between these two types of cases, the imposable sanction. In a civil case, the losing defendant is usually required to pay a sum of money to the plaintiff to redress the proven harm, or the defendant may be required to cease a certain kind of conduct. In a criminal matter, though, the convicted defendant can face a sentence as lenient as a reprimand or as severe, in some jurisdictions, as death. As such, the primary differences between criminal and civil matters certainly characterize law by touching on many of law's defining features. Law is a vast field, encompassing an abundance of issues, both philosophical and practical. It affects everyone's life in one way or another, and at some time or another, in a positive or a negative way. At times, we are relieved at the existence of a set of rules and regulations that keep us safe, and at other times we consider those rules to be an onus and an unjustifiable restriction on our freedom. Nevertheless, without law and its many characteristics, no society could function or thrive in any meaningful way. References Austin, J. (1995). The Province of Jurisprudence Determined. Cambridge: Cambridge University Press. Dworkin, G. (1972). Paternalism. The Monist, 56. Dworkin, R. (1982). "Natural" Law Revisited. 34 University of Florida Law Review 165, 171. Hart, H.L.A. (1994). The Concept of Law. Oxford: Oxford University Press. Himma, K.E. (2006). Philosophy of Law. The Internet Encyclopedia of Philosophy. Retrieved May 8, 2006, from http://www.iep.utm.edu. Soanes, C. (2001). Oxford English Dictionary (p. 512). New Delhi: Oxford University Press. Read More