The Relationship Between Law and Ideology by Hart and Dworkin - Research Paper Example

Introduction Law has been defined as the commandments and regulations which are enforced by the dominant group that controls the structures of nation states. Ideology on the other hand refers to the dogma, parables, and faith that channel the direction of nation states. In simplistic terms it would be easier to deduce that law is an extension of ideology. The history of the world has been filled with diverse legal systems and ideologies. Herbert Hart was an important theorist and logician of law who presented the concept of legal positivism. Ronald Dworkin is an American academic who has extensively contributed towards the development of legal theory which has been known as “law as integrity”1. Hart believed that morality could not be used to protect the society. He rejected the concept of moral legislation as vital for the protection of society. Dworkin however argued that the legal system is derived from the positive understanding that is deduced by its legislators2. Both prominent academics and logicians engaged in the debate about the link between ideology and law. This research paper examines and assesses the political, philosophical, and legal views of both academics regarding the debate. It focuses on the criticism of Hart towards the legal philosophy of Dworkin. In the context of this debate, the paper argues that the relationship between the legal system and ideology is intricate and multifaceted. Legal Philosophy of Hart Hart wrote extensively about the source of legislation which according to him was prepared by human beings. Morality was considered to have little or no influence in the shaping of laws. This theory was known was legal positivism3. The law could not be under the domination of the rulers who could warn and intimidate the masses by using retribution and chastisement. Further the source of legislation was dissimilar with respect to their internal and external viewpoints. The average customs that were sanctioned and mandated by law were also deemed to be dissimilar as against those that were without state backing. The legal system is created by legislators drawing from a number of sources. Hart termed many laws as being extensions of social rules which obligate and constrain the people from breaching them. The legal system according to the philosophy of Hart consisted of primary and secondary rules4. The primary rules played an important part in governing and regulating society while the secondary rules were used to define legislation. Legal positivism hypothesized that the legal system is derived from a system of policies and regulations which might be designed either purposely or inadvertently. A prominent feature of this theory was that it rejected the role of moral values in shaping or influencing legislation in the modern world5. The legal code of any country is based upon indigenous and conditional interpretations. Legal positivism does not exclude the possibility of morality having no role at all in the shaping of laws but it proposes that the legal system is influenced by local customs and traditions. Legal Philosophy of Dworkin Law’s Empire was a book written by Dworkin in which he was critical about the theories of Hart. According to him, the legal system is derived from the positive understanding that is deduced by legislators6. The distortion of ideology can lead to the justification for some crimes inside a legal system. These principles are deduced by the courts in order to elucidate and rationalize the precedent in legal history. Dworkin believed that legal rights are fundamental and necessary even for disputed cases. He proposed that the relationship between law and morality pertain to knowledge. Cases in the courts were also considered to have only one accurate and precise solution according to Dworkin. Judges have to erect and build legal decisions based upon the preeminent and paramount interpretations of law7. Legislation according to Dworkin is based upon the ability of judges to choose between the different options. The judges might be able to deduce alternative conclusions in order to resolve the dilemmas associated with difficult and controversial cases. Dworkin insisted that the legal system can be developed and progressed through the process of arbitration and settlement8. The consistency and rationality of the legal system can be maintained by judges who make decisions and interpretations regarding the law. Dworkin assumed that the legal system was operative with respect to past occurrences as it can be violated if incorrect moral decisions are made by the judges9. Hart’s Criticism of Dworkin Hart sought to expand the views and principles of legal positivism in a pragmatic and realistic manner10. He divided the legal system into primary and secondary rules. The primary rules classify and categorize the basic and fundamental set of legal principles and rules which govern any country. The secondary rules are used to revise, adapt, adjust, or alter the primary rules11. The legal system must be understood in the way its legislators behave and not by what external factors perceive about it. Judges are expected to display prudence and maturity when faced with difficult decisions. Ronald Dworkin was a leading critique of Hart by his creation of legal principles. These principles are obeyed and implemented on the basis of moral judgments and values. Principles are assumed to be more significant and important as compared with legal rules because they are deeply rooted in the legal system. Dworkin when criticizing Hart explained that legal principles cannot be explained by legal positivist theory12. Judges according to his view do not display prudence or maturity but instead base their decisions on legal principles. Dworkin could not define what the legal principles exactly are but he believed that they exerted a tremendous influence on the legal system13. The United States Constitution according to Dworkin had numerous laws which were unconstitutional simply on the basis of being passed without taking any moral principles into consideration. Characteristics of Hart’s Legal Model Hart responds to the criticism of Dworkin by proposing that the legal system is inherently linked with the forces of change and progress in society. The legal system is used to formulate, utilize, and impose rules on society. Like all legal positivists, Hart believed that the foundation of legal systems had some ethical code attached to it. Rules of recognition were a legal tool introduced by Hart so that he could emphasize the complexities of legal systems14. All the laws in society are linked and dependent upon each other for the function of society. Judges are able to make qualified and mature decisions despite the presence of rigid and inflexible rules. The role of resolving judicial disputes by examples and models was deemed by Hart to be flawed and deficient. The social acts are considered to be reliable and trustworthy in defining the parameters and standards of law. The main response of Hart towards Dworkin was that judges had the ability to use prudence and maturity while making legal decisions because they were according to the standards of society. Legal principles used by the courts are based upon their historical usage and precedent15. Some legal judgments are passed without any historical precedent because they are obligated to apply such standards in legal decisions16. In other cases judges have to use laws derived from other systems in order to make the proper legal decisions. Legal positivism according to Hart does not think that if judges borrow moral principles in passing judgments would exclusively mean that the legal system is derived from such principles. Rules of Recognition The social customs and traditions do not dictate the validity of laws inside legal systems. Even the presence of unjust laws in the words of legal positivism is still law. Social forces and factors are considered to be the driving forces which motivate legislators to pass and enforce laws. Hart’s rule of recognition is considered to be influenced by social forces rather than moral forces because judges have to adopt certain criteria when they pass legal decisions17. Ethical code plays an important role in determining the solution for legal cases. This is done only if the judges are unable to make the right legal decision about certain controversial cases. Any disputes between judges regarding the application of rules are about the proper relevance and purpose of the laws. Legal theorists believe that there are not disputes between judges regarding the core principles and rules of the legal system. This does not mean that they disagree about the substance of the legal principles and laws. The rule of recognition in the words of Hart offers an alternative for judges to pass judgments based upon moral values and principles since it is not concerned with the realistic substance of legal laws18. In cases where the law is silent, Hart proposed that judges employ discretion and maturity when making legal decisions. Legal system was contrasted with that of a pyramid because it sought to explain the dynamics of agreement within the system. Legal officials refer to the law in the manner by using the reasons of legal strength in order to make decisions and judgments. This allows them to agree on aspects of the law which are clearly defined. Morality and Legislation Hart responds to Dworkin’s criticism by stating that vagueness and hesitation by the judges can be effectively countered by the rule of recognition. Laws can be amended within the context of legal positivism through the use of properly trained legal theorists. Under Hart’s legal system, the judges have the authority and power to prevent breaches of law19. Dworkin also believed that judges have no options or alternatives when passing judgments. Hart rejected this line of reasoning by proposing that sudden and astonishing events lead to judges using various options when delivering legal judgments. Hart’s legal philosophy gave crucial importance to the concept of rules. He emphasized that rules are made because they can justify the decisions made by the legal authorities inside any legal system. Hart’s legal theory of positivism was also criticized by Dworkin for failing to provide any importance to morality in the formulation and passing of laws. Law was essentially concerned with protecting the rights of individuals and promoting democracy20. Hart did not reject entirely the concept of morality playing a role in the development of laws. However he did not assign them a primary importance because he postulated that social customs and norms played a crucial part. Dworkin argued and criticized the theory of legal positivism by pointing out that legal theory is concerned with ensuring the maintenance of the moral standards. It strives to ensure that the power of the government in enforcing behavior is regulated and monitored through a system of legal checks and balances. Hart’s objection to this line of thinking was that legal cases are different in nature21. The process of laws is an evolutionary process which is dependant upon the dynamics and complexities of society. Hart did not altogether reject morality playing no role in legal theory but instead he pointed out that some form of ethical code remained that influenced the legal academics and logicians. Theories about Coercion Dworkin justified the use of the law as an instrument to intimidate and pressurize the law breakers. This justification was on the basis of ethics and principles which were considered to be vital in the stability of society. Hart however rejected this line of thinking because his theory of legal positivism was fundamentally poles apart to Dworkin’s thesis. Dworkin’s critique of Hart’s legal thesis was also flawed because they failed to find any flaw in the latter’s analysis of the Anglo-American legal system22. Hart’s legal thesis also accepted the validity of past precedents as being used for the basis of legal judgments. Hart’s legal positivism was more “soft positivism” since it held that morality was just a conditional and restricted part of the legal system23. This was done to explain how morality might affect the legal system in a certain manner. Hart also perceived Dworkin’s legal theory as simply being indecipherable and illegible because it could not explain the power and influence of law. It was also unable to differentiate why in certain cases morality was used to pass legal judgments. Finally the theory of Dworkin was also considered inadequate for being unable to perceive how judges could exercise prudence and wisdom during the passing of legal decisions24. Hart’s own legal theory was considered to be comprehensive and explanatory which made important contributions regarding the quality and features of the legal system. It is appropriate and valid in legal cases where there are no disagreements or debates. Law in the words of Hart is all encompassing and evolutionary in nature which changes with the requirements of society. Hart’s legal concepts are relative and proportional in nature which makes them valid and reliable. Hart was an advocate of this concept who proposed that law is based upon truthful and realistic facts as moral concepts might lead to the insubordination and defiance of the system. Legal positivism and natural law attempt to define the perceptions and models of law25. They are opposed to the concept and definition of law being an expression of ideology because they consider this to reduce the principle value and significance of the law. The legal system merely becomes reliant and conditional on the ideology of ideas and beliefs that shape it26. The legal system in their view should be independent of the ideas and dreams of the ruling elite in order to prevent its distortion of reality and social conditions. Rule of Law and Ideology However there are some instances where ideology becomes integrated with the legal system. The routines and procedures of society can give way to legislation. The ideas and dreams of society can lead to the design and deployment of legal systems. Social influence and cogency attempt to assume important roles in the theme and summary of the law27. Law has in many ways been shaped and influenced by the customs and models since they reflect the aspirations and desires of the dominant party. This position rejects the notion that morality plays a decisive role in shaping legislation. Law generally adopts the position of being in a state where events confirm to it. The Rule of Law is a legal concept that is concerned with the parameters of law that individuals are compelled to follow and obey28. Law in this context has to be specific, articulated, receptive, amenable, and accessible. Rule of law is considered as a definitive and exemplary illustration of the link between ideology and legal system29. The rule of law becomes an instrument to enforce the standards of the ruling elite. It aims to empower the individuals while constraining the power of governments. Critics of this position argue that the rule of law becomes a tool and method for governments to limit the rights of individuals30. The law is applied selectively as moral values or customs play a secondary role in its implementation. Perspectives on Ideology and Law The analysis of the positions of Hart and Dworkin regarding legal philosophy points to the diversity of thought regarding the relationship between ideology and law. One perspective is that ideology does not influence the legal system31. This perspective attempts to understand the meaning of ideology as being insignificant in the deciphering and interpretation of law. However the problems with this perspective is that it cannot explain the reason why ideology continues to influence the politicians who in turn pass the legislation that is necessary for maintaining and enforcing order in society. Dworkin for instance gives the example of Hercules who has perfect and flawless qualities as a judge. He is considered to have these attributes because he has a fantastic grasp of the political beliefs and principles of his society32. This gives him the structural framework that can assist him in making valuable and prudent legal judgments. Despite this Dworkin’s legal model did not include ideology as influencing or manipulating the dynamics of the legal system. Another perspective regarding the link between law and ideology is that both should be divided into separate areas33. Hart was an advocate of this perspective as he believed that the fundamental appeal of law lies in its ability to provide reliable and trustworthy strength and fortitude for society without the need for morality. Western societies have clashes of ideology but this is resolved once it has entered the legal system. Ideology inside Legal Systems One concept which has been developed by academics and logicians is the concept of legal system having its own internal ideology. This internal ideology does not have to be linked with politics but it can impact the political system with its various interpretations34. Hart linked law as being a social phenomenon but he did not deny the impact of cultural norms and customs as influencing and manipulating the legal system35. Dedication and assurance towards law is considered important because it will not be seen as a disconnection from other obligations and assurances. Capitalism and neo liberalism were attacked by dissident legal philosophers because they sought to influence the legal system with their political, social, and economic views. The reactions to the dissidents have been that of open condemnation and vilification of their views. Still others have attempted to engage in constructive dialogue so that the dissenters could be absorbed into the mainstream legal system36. Those who wished to maintain the status quo sought to link law with ideology because it would allow them to create their views of society. Another reaction to the dissidents was that ideology creates a significant impact on the development of legal principles and rules37. One form of ideology was suggested as dominating law since this would allow it to evolve into a forum where all political conflicts could be resolved through the legal premise. Another outlook was of that of reflexive ideology which would allow it to engage itself with the development of the legal system. Legal philosophers have been engaged in debates regarding their views on the link between ideology and law. The diversity of thought amongst them suggests a huge partition in the outlooks about law. Numerous reasons have been put forward to explain this diversified opinion on the role of ideology in expressing the legal system. Some researchers have suggested that ideology has negative meanings when used in the context of law38. Others insist that ideology has been used as an instrument to repress the people of society. They also believe that ideology allows the dominant group to hold onto power and dominate the groups which might threaten its existence39. Still there are other academics who believe that ideology is neutral within the framework of legal theory and viewpoints. The definition of ideology is also a matter of dispute between legal academics which further divides the debate40. One group of academics try to understand ideology in the light of the legal rules and principles while others attempt to bypass ideology as playing no role at all in the development of the legal system. Lawyers have been criticized for concerning themselves only with the legal dimensions of law while ignoring the other aspects. This further creates confusion as to the importance of ideology shaping the legal system. Their obsession with the legal concerns often leads to the sidelining of the importance of ideology in framing the legal system. Conclusion Law is concerned with the regulations and rules that govern and administer society. Ideology can consist of myths and ideas which are used by politicians to define their vision of society. The relationship between law and ideology has been extensively studied. However it is not necessary that legal system can be an expression of ideology. Hart and Dworkin were two of the most prominent legal theorists of the twentieth century. Hart proposed the theory of legal positivism in which legislation is dependent upon social laws. He rejected the importance of morality as having any role in drafting the laws. Dworkin on the other hand believed that legal rights play a significant and vital role even in disputed cases. Hart responds to the criticism of Dworkin by proposing that the legal system is inherently linked with the forces of change and progress in society. The legal system is used to formulate, utilize, and impose rules on society. Ideology has been defined as the set of beliefs and ideas held by the politicians which is their version of a better and progressive society. The debate regarding the link between law and ideology is complex and multifaceted because of the huge diversity of opinion present amongst legal theorists. The debate regarding the relationship between ideology and law has been understood in terms of whether morality influences the legal system or not. One school of thought has been that of natural lawyers who hypothesize that morality plays a crucial role in shaping and interpreting the legal system. Word Count = 3492 References: Dworkin, Ronald. Taking Rights Seriously. Cambridge: Harvard University Press, 1977. Hart, H.L.A. Law, Liberty, and Morality. Stanford: Stanford University Press, 1963. Hart, H.L.A. (1986), “Positivism and the Separation of Law and Morals,” from Feinberg, Joel and Gross, Hyman, Philosophy of Law (Third Edition). Belmont, California: Wadsworth Publishing Company, pp. 69-87. Hart, H.L.A. 1983), Essays in Jurisprudence and Philosophy. Oxford: The Clarendon Press. Hart, H.L. A (1967), “Social Solidarity and the Enforcement of Morality,” University of Chicago Law Review, 35, pp. 1-13. Hart, H.L.A (1961), The Concept of Law. Oxford: The Clarendon Press. Dworkin, Ronald M. (ed.) (1986a), “The Model of Rules,” from Feinberg, Joel and Gross, Hyman, Philosophyof Law (Third Edition). Belmont, California: Wadsworth Publishing Company, pp. 149-166. Dworkin, Ronald M (1986b), “Is There Really No Right Answer In Hard Cases?” from Feinberg, Joel and Gross, Hyman, Philosophy of Law (Third Edition). Belmont, California: Wadsworth Publishing Company, pp. 174-191. Dworkin, Ronald M (1977), The Philosophy of Law. London and Oxford: Oxford University Press. Dworkin, Ronald M (1968), “On Not Prosecuting Civil Disobedience,” New York Review of Books, 10 (June 6, 1968), pp.14-21. Martin, Michael (1987), The Legal Philosophy of H.L.A. Hart. Philadelphia: Temple University Press Michael Tigar and Madeleine R. Levy, Law and the Rise of Capitalism (New York, 1977), pp. 288-89; Arthur Kinoy, "The Role of the Radical Lawyer and Teacher of Law," in Law Against the People, ed. Lefcourt (New York, 1971), p. 283. Hartzler, H. Richard (1976). Justice, Legal Systems, and Social Structure. Port Washington, NY: Kennikat Press. Hutchinson, Allan C., ed. (1989). Critical Legal Studies. Totowa, NJ: Roman & Littlefield. Kempin, Jr., Frederick G. (1963). Legal History: Law and Social Change. Englewood Cliffs, NJ: Prentice-Hall. Llewellyn, Karl N. (1986). Karl N. Llewellyn on Legal Realism. Birmingham, AL: Legal Classics Library. (Murphy, Cornelius F. (1977). Introduction to Law, Legal Process, and Procedure. St. Paul, MN: West Publishing. Rawls, John (1999). A Theory of Justice, revised ed. Cambridge: Harvard University Press. (Philosophical treatment of justice). Zinn, Howard (1990). Declarations of Independence: Cross-Examining American Ideology. New York: Harper Collins Publishers. Finnis, John M. “On the Incoherence of Legal Positivism.” Notre Dame Law Review 75 (2000): 1597-1611. Fuller, Lon. “Positivism and Fidelity to Law: A Reply to Professor Hart.” Harvard Law Review 71 (1958): 630-72. George, Robert P., ed. The Autonomy of Law: Essays on Legal Positivism. Oxford: Clarendon Press, 1996. Finnis, John. Natural Law and Natural Rights. Oxford: Clarendon Press, 1980. Smith, M.B.E. “Is There a Prima Facie Obligation to Obey the Law?” Yale Law Journal 82 (1973): 950-76. Smith, M.B.E. “Concerning Lawful Illegality.” Yale Law Journal 83 (1974): 1534-49 Joseph Raz, The Authority of Law (Oxford: Oxford University Press, 1979), cc. 12, 13 John Finnis, “The Authority of Law and the Predicament of Contemporary Social Theory,” Notre Dame Journal of Law, Ethics and Public Policy 1 (1984) Jeremy Waldron, “Special Ties and Natural Duties,” Philosophy and Public Affairs 1 (1993) Jeremy Bentham, Introduction to the Principles of Morals and Legislation (1781), cc. 13-15 C.S. Lewis, “The Humanitarian Theory of Punishment,” in God in the Dock (1985) Ted Honderich, Punishment: The Supposed Justifications, 2d ed. 1989 W.N. Hohfeld, “Some Fundamental Legal Conceptions as Applied to Judicial Reasoning,” Yale LawJournal 23 (1913): 16-59 (=Fundamental Legal Conceptions, ch. 1) Campbell, Tom (1996). The Legal Theory of Ethical Positivism. Dartmouth: Aldershot. Finnis, John (1996). “The Truth in Legal Positivism,” in The Autonomy of Law, ed. Robert P. George. Oxford: Clarendon Press, pp. 195-214. Gardner, John (2001) “Legal Positivism: 5 ½ Myths,” 46 American Journal of Jurisprudence 199. Green, Leslie (2001). “Law and Obligations,” in Jules Coleman and Scott Shapiro, eds. The Oxford Handbook of Jurisprudence and Philosophy of Law. Oxford: Clarendon Press. Kramer, Matthew (1999). In Defense of Legal Positivism: Law Without Trimmings. Oxford: Clarendon Press. Shapiro, Scott (1998). “On Hart's Way Out,” 4 Legal Theory 469. Read More