Ronald Dworkins Legal Theory - Case Study Example

Jurisprudence: Ronald Dworkins Legal Theory: The decision in R v Secretary of state for transport ex parte factortame Introduction This paper seeks to explore law and integrity theory as proposed by Ronald Dworkins in relation to its application to the case of R v Secretary of State for Transport ex parte Factortame.1 Dworkin's work in legal philosophy has been centered on discussion of judicial decision-making. His approach was distinct from natural law theory, legal realism, and legal positivism.2 In this paper, I will use Dworkin’s theory, before presenting its application in this case. 3 Essentially, Dworkin theory is a contemplation of law as comprehensive legal world that is always able to provide a correct answer.4 The Theory of Law as Integrity Dworkin’s interpretation of the legal practice is based on the notion of law as upholding integrity. He argues that law as integrity requires the judges to point out legal duties and rights due to the supposition that they are a product of the society as a creature, and that they stand for the society’s idea of fairness and justice. It is assumed that the assertion of law is true, only if they follow the due procedure, fairness and the principles of justice, which is considered the best and the productive understanding of the society’s legal process. Reliability of law is derived from its ability to speak with one voice, and that judges should follow the due procedures in their judgments – they should ensure that all those who appear before them are served in a fair and just manner, following the same standards that makes everyone equal. Dworkin argues that the contemplation of law as integrity should allow the judges to apply similar methodologies, while making judgments on cases, and that such integrity should be derived from constructive interpretation.5 Integrity is also considered to follow adjudicative as well as legislative principle. Moral logic is a principle that should guide the process of legislative principles. Adjudicative standards are perceived liable to begin if these dimensions are followed. Adjudicative standards require deliberation of law in a logical manner, as far as it is possible. Constructive interpretation is an argumentative methodology for interpreting texts and work of art, and social practices.6 The logical stages involved in the process of constructive interpretation, including interpretative stage, the pre-interpretive stage, and post-interpretive stage.7 Rules and standards are formulated in the pre-interpretive stage. In the interpretive stage, the pre-interpretive stage general rationalization is applied. Change of requirements of practice by the contributor, with the intention of improving the rationalization formed at the interpretive stage is the post-interpretive. Thus, the interpretation of law must not only fit into the legal system, but also be the best normative justification of law.8 The interpretation must be consistent with the law identified at the pre-interpretative stage and the law should also be interpreted in the best that the participant believes possible.9 Ronald Dworkin, Law’s Empire (Fontana Press, London 1986) 225. Generally, the principle of “law as integrity” is a legislative as well as adjudicative principle, but Dworkin concentrates in the domain of adjudication. 10 The theory further postulates that judges that accept the interpretative ideal of integrity decide hard cases by trying to find, in some coherent set of principles, about people’s rights and duties, and the best constructive interpretation of the political structure and legal doctrine of the community (wrong reference).11 In addition, the theory highlights that the spirit of integrity would be outraged if a judge makes a decision in any way other than by choosing the interpretation that they believe to be the best, from the standpoint of political morality as a whole.12 Dworkin provided that lawyers and judges should chart out the best ways of sorting out legal issues, pointing out that the specific positive law that is applicable in a certain scenario is not necessarily the crucial consideration. 13 This argument is similar to what conventionalist would support. However, an interpretive approach to law as social practice is considered as the best way of seeking justice. Dworkin’s viewed law as a way of interpretive or argumentative practice.14 He argues that a judge must always call on the network of political structures and decisions of his community through employing legislation and case law.15 Acknowledgement during the pre-interpretative stage is very critical. In the later stages, it is important that the judges contemplate whether their decisions could be in accordance with the coherent theory framework, with all the networks being justified fully. So long as it appears promising, the scope of their interpretation is allowed to originate from the immediate cases that have similar general foundation or department of law.16 It is thus important that judges consider their tasks as those of authors of books, who are characterized by a link of chain. In this case, upcoming authors rely on what the previous authors have researched in previous chapters. However, the new author is bound to enhance the previous work in such a manner that she/he deems best. 17 In the same way, the judges are usually aware that those before them have made rulings that are supposed to bind them, in previous cases. Essentially, the judges who are making judgments on cases of similar subjects are supposed to assume their decisions as part of a long story, which should be construed and continued in a manner that makes the story as good as possible.18 As such, in accordance with Dworkin, a legal story interpreter is bound to limited interpretation of the story. Personal morality is not supposed to be introduced in to the legal story. The principle duty of the interpreter is to institute coherence, which is in accordance with the integrity of the existing law. The judges are bound to make their decisions based on their beliefs on the superiority of the principles, in regard to the abstract justice as well as based on the best decision, which is politically fair - assuming that the members of the society share similar moral beliefs. As such, Dworkin avails us with two possibilities.19 It could be argued that social practice interpretation refers to the process of finding out the intentions or purposes of the other party in the practice. Alternatively, it means discovering the purposes of the community that houses the practice, conceived as having some form of mental life or group consciousness. The first of these suggestions seems more attractive because it is less mysterious. 20 Dworkin’s Criticism of Models of Interpretation Dworkin’s theory of interpretation criticizes the main models of interpretation namely conventionalism and pragmatism while citing “law as integrity” as the most plausible and defensible. Conventionalism provides that rights can only come from the law, which already existing, including legislations or precedents. As such, rather than making law, judges should follow law. In situations of law absence, discretion of the judges comes to play; therefore, they could take the role of making law. The pragmatist law theory emphasize that judges make prudent decisions while making their rulings. Therefore, judges should sometimes appear to be applying the pre-existing legal rights. This theory provides that past decisions like legislations and precedents should not hold back the manner in which courts discharges its work.21 Dworkin provides that conventionalism acknowledge the fact that judges invent laws, therefore, assuming that the courts acts in an unrestrained way. Pragmatism also recognized judges as unrestrained in their roles of making rulings. Therefore, pragmatism does not give account of the fact that judges are so much focused on statutes and precedents when making rulings on hard cases. As such, Dworkin highly condemns making judgments in an unrestrained way, and in his theory of law presents a better idea of what actually happens during judges’ rulings as well as presenting a morally better law theory.22 Dworkin v hart Dworking was particularly against legal positivism and natural law. He claimed that law is a component of rules only, since the judges have freedom to exercise their own discretion on a particular case, where previous ruling does not exist. Therefore, he goes against Hart’s assertion that law is a set of standards that bind judges while making their ruling, and that judges have to follow those standards when deciding their cases. Dworkin adds that principles are common in deciding of cases, besides rules.23 He went ahead and provided comprehensive analysis of the differences between rules and principles. For example, he cited that rules are applicable in an all-or-nothing style, unlike the principles. The point that Dworking tried to put across is that, when judges make rulings, they can find answers in standards, besides rules. He disputed Hart’s assertion that judges have legal discretion when making judgments on hard cases.24 Hart criticism of Dworkin Hart’s criticism against Dworkin was in relation to the concept of legal system. His positivist argument was that law does not have to be referred to a higher moral code or law to be valid. On the contrary, Dworkin argues that there are some laws, which cannot be considered to be law as such. In particular, the argument of Hart departed from that of Dworkin because he did not put any relevance on portraying laws as concerning rules. According to Dworkin, legal standards play a very critical role in adjudication and reasoning. Hart has, however, pointed out that this conception has an isolated fault, just like many other critics who do not agree with Dworkin. 25 Judges as Hercules Dworkin came up with a representation of an unreal judge, where justice Hercules had his own understanding of constitution and the authority of judicial review. Regarding activism and positivism, there is a balance as far as his version of a judge was concerned. This judge does not postpone the judgment on the elected officials all the time, regardless of the system of the constitution. That means that he is hell bent on protecting the democracy and the minority rights rather than compromising to what the majority representatives regards as the right thing.26 On the other hand, the judge will yield to the opinion of the legislature when the prevailing issue is of policy and not principle. Essentially, the judges ought to realize that the law is dynamic, and that the society’s norms are also subjected to changes. That also means that new lines have to be developed when discharging the constitutional responsibilities.27 Lord Bridge in R v Secretary of State for Transport ex parte Factortame 28 The background to the case is as follows. The European Union had put a quota on countries as to how much fish they could sell within the European Union. The British Parliament in 1970 passed the Common Fisheries Policy. The additional Act was the EC treaty, the Merchant Shipping Registration of Fishing Vessels Regulations 1988 and the Merchant Shipping Act 1988. 29 The law provided that all British ships to register afresh in a new register of vessels.30 The vessels that had been registered under the Merchant Shipping Act 1984 were to re-register.31 The Act sets new rules for registration. These allowed only those who were nationals or domiciled in England to register. The Act barred foreign owned vessels or those that were managed by foreigners form registering under the Act. They, therefore, could not get a license. The Secretary of State vs. Factortame arose from this law. Spaniards who had vessels were not allowed to register under the Act. They moved to court for an order for judicial review. 32 They challenged the Merchant Shipping Act and said it was not compatible with the European Community Law. This was under Article 12 of the European Community Treaty that barred discrimination based on nationality. The next was Article 43 that allowed member states to trade in another member state. The Queen’s Bench division gave an injunction barring the implementation of the 1988 Act and the regulations therein. The court further confirmed the legality of all registration under the 1894 Act. The decision was explained as not setting aside an Act, but an attempt to construe the law according to European Union Law. This was under the obligations the UK had as a member of the European Union. This obligation had been stated by Lord Diplock in his decision in Garland v British Rail Engineering.33 The Secretary of State then appealed this decision. The Court of Appeal upheld parliament’s sovereignty and ruled courts had no power to stop the implementation of the act. The matter moved to the House of Lords. The House of Lords upheld the Court of Appeal’s decision. The court held that interim relief can’t be given against the Crown. The presumption made is an Act compatible with European Community Law until the European Court of Justice Rules otherwise. 34 The court kept the matter under Article 234 of the EC Treaty.35 The European Court of Justice was then given the matter for determination. The issues before the court were whether the English courts have the power to grant interim orders to protect rights under the law. This would lead to repealing of the laws. The European Court of Justice, therefore, ruled that where a court felt that the only thing barring it from giving interim relief was a national law, the court should disregard the law.36 The House of Lords, following this preliminary ruling, gave a restraining order barring the Secretary of State from withdrawing or stopping registration under the merchant shipping Act 1988.37 This effectively removed the British law that injunctions could not be granted against the crown. The Spanish owners were then given compensation in form of damages. The Relation between the Factortame Case and the theory of Law as Integrity Lord Bridge argues that his decision does not offend parliamentary sovereignty, therefore, upholding Dworkin’s argument that the principle “law as integrity” is a legislative as well as adjudicative principle. Further, the decision benefits the society by securing a kind of equality among citizens that make their community more genuine and improves its moral justification for exercising the political power it does as alleged by Dworkin. Lord Bridge also factored in the coherent set of principles about people’s rights and duties - the best constructive interpretation of the political structure and legal doctrine of his community when handling this difficult case. He also analyzed the case through the three stages as identified by Dworkin. This is so notwithstanding the lack of consensus of what is right as was the case with Lord Bridge’s opposition from parliament. Bibliography Cases Bayles, Michael Hart vs. Dworkin. v 10 Law and Philosophy [1991] 349 Garland v British Rail Engineering [1982] ICR 420 Secretary Of State Exparte Factortame [1999] All ER 1173, [1999] 1 AC 603 Legislation Aricle 234 of the EC Treaty Merchant Shipping Act 1984, c.5 Merchant Shipping Act 2008, c. 12 Secondary sources Alder J, Constitutional and Administrative Law 7th edition (Palgrave Macmillan 2009) Alexander B, Ronald Dworkin's Theory of Equality: Domestic and Global Perspectives (Palgrave Macmillan 2009) Allan T, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (Oxford, Clarendon Press 1993) Bayles, Michael Hart vs. Dworkin. v 10 Law and Philosophy p. 349-81 November '91 Brian L, ‘The End of Empire: Dworkin and Jurisprudence in the 21st Century’ (2005) 36 R LJ 165 Burke J, The Political Foundation of Law: The Need for Theory with Practical Value (Austin & Winfield 1992) Burley J, Dworkin and His Critics (Blackwell Publishing 2004) C Turpin and A Tomkins, British government and the constitution: text and materials (Cambridge University Press 2007) p 335 Christie G, Jurisprudence - Text and Readings on the Philosophy of Law (St. Paul : West Publishing Company 1973) Cohen M, Ronald Dworkin and Contemporary Jurisprudence (Duckworth 984) Cohen M, Ronald Dworkin and Contemporary Jurisprudence (Duckworth 1984) D'amato A, Jurisprudence - A Descriptive and Normative Analysis of Law (Dordreht, the Netherlands : Martinus Nijhoff Publishers 1984) Dicey P, Introduction to the Study of the Law of the Constitution (Elibron Classics 1915) Dworkin, Ronald, Law’s Empire (Fontana Press, London 1986) Dworkin, Ronald. ‘Judicial Discretion’. 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