To What Extent Does Dworkin's Account of Judicial Disagreement Threaten the Plain Fact View of Law - Term Paper Example

The application of law is an inherently ive exercise. One only needs to read judicial opinions to know that there is usually not one right answer when it comes to legal matters. In fact, crafty legal practitioners can twist and bend the law so that it at least somewhat comports with their facts. It stands to reason that, if laws were clear and “bright-line,” then there would be no need for appellate courts or the Supreme Court; there would be no dissenting opinions; no concurring opinions that come to the same result as the majority, just on different grounds; indeed, little reason for judges at all. Legal conflicts would be minimal. The law would be the law, no interpretation necessary. However, as evidenced by the fact that the Supreme Court is sharply divided, that appellate courts decide cases with sharp dissenting opinions, that these appellate opinions are often in conflict with other appellate opinions in the same state and the same region, and that learned legal philosophers and jurists routinely ferociously disagree with one another about the meaning of law, the law is not clear and “bright-line.” Laws are composed of ill-defined words like “reasonable,” “undue,” and “reckless.” They can be poorly-written by the legislature, leaving enormous gaps that leave judges in no-mans-land. At times, it is necessary to ascertain legislative intent in interpreting the statutes, only to find that the intent is not all that clear. It is in this context that three major theories have evolved - the critical legal studies, the plain fact view, and a third theory espoused by Ronald Dworkin, which is in the middle of these two theories. At base, the critical legal studies’ camp sees law as unmoored by any legal theory, as the language is “indeterminate.” (Katz at 998). Critical legal studies therefore believe that law can be neither consistent nor rational, but, rather, is decided by each jurist, according to that jurist’s political preferences and beliefs. (Protevi at 113). The plain fact view goes in the opposite direction - language is determinate, the words of a statute or law are meaningful, and that meaning must be followed. The two basic tenets of the “plain-fact” view of law is 1) law is grounded by a consensus of legal officials and 2) the “only types of facts that may be grounds of law are those of plain historical fact.” (Shapiro at 30). Where the critical legal studies see law as unmoored by any kind of social construct, the plain-fact camp goes the other way and rigidly regards law as completely moored by historical facts. (Shapiro at 31). The plain-fact camp does not countenance theoretical disagreements. (Shapiro at 31). Dworkin’s theory of law, and judicial disagreements, is somewhere in between these two camps, therefore threatens both. At the heart of the critical legal studies analysis is the indeterminancy of language. (Kutz at 999). They believe that legal justification or certainty is not possible on grounds that are both linguistic and nonlinguistic. (Kutz at 997). For instance, a conventionalist philosopher would state that a word doesn’t refer to anything “real,” just to a “criteria of its own application.” (Carlson at 2). We call an apple an apple because why? Most people would say that an apple is an apple just because it is. A conventionalist would contest that explanation as dogma, not philosophy. (Carlson at 2). The apple is an apple because of criteria that rely upon more words that rely upon additional criteria that rely upon more words, ad inifinitum. (Carlson at 3). These are the linguistic underpinnings of the critical legal studies’ theorist. (Kutz at 997). The nonlinguistic underpinnings of the critical legal studies theorists are that, because legal norms conflict, precedents are malleable and controversial fact situations depend upon legal arguments, legal regimes are non-determinate and legal authority is in doubt. (Kutz at 997). At the heart of this view is that, because rules and deeply embedded values conflict with one another in law, then “different judges can reason from different norms, each with an equal status within the legal system, and thereby arrive at very different conclusions.” (Kutz at 1023). Values are in conflict because “legal regimes represent the accretion of the goals and acts of political actors scattered over time, occupying different perspectives, responding to different circumstances, and motivated by different interests.” (Kutz at 1023). Also, there is a sense that the different values held by individuals should be respected equally, as long as there is a rational basis for these values, and to state that one value is superior to the other is illegitimate, for this fails “to take seriously either the nature of value in modern society or the possibility that competing claims might be rationally reconciled.” (Kutz at 1023). Whether a critical legal studies’ theorist relies upon linguistic or nonlinguistic underpinnings for their theory, their philosophy is basically the same. No legal conclusion can be justified on a rational basis that is derived from a “well-defined set of premises.” (Kutz at 997). Legal authority does not have any genuine constraints, which leaves the individual jurist free to decide cases according to how he or she sees fit. This view of the law, if this is the prevailing view of the law, would have unfortunate consequences. Namely, a litigant would not have any expectation of what would occur in his or her case, as the outcome would necessarily be decided by the caprice of the judge. (Kutz at 997). The citizenry cannot modify their conduct to avoid adverse consequences, as they would not be able to predict what these consequences would be. (Kutz at 997). They might indulge in undesirable activities, because, again, they would not be able to predict the consequences of this bad acts, therefore would be more likely to take the risk in committing these acts. (Kutz at 997). Other critical studies’ theorists seem to take a more cynical view of the judiciary. Namely, that a judiciary’s decisions are predictable, but that they are based upon extralegal grounds, such as racial and class bias, as opposed to legal doctrine. (Kutz at 1001). This goes to the heart of the critical legal studies theorists, as the basic premise is that the lack of legal doctrine lets the individual jurist decide cases according to his or her own caprices and whims, and, if this individual jurist happens to be biased toward a certain race or gender, then his or her decisions will be predicated upon those biases. (Kutz at 1001). Of course, there is no reason to stop there. Under this skeptical view of the judiciary, a jurist’s decision might be based upon all kinds of extralegal biases and emotional whims. This view seems to advocate that anything goes. While there does seem to be a substantial philosophical underpinning to this theory, in that the squishy nature of the law does allow an individual judge to shape the legal definitions to fit a certain desired result, it is a philosophy that is skeptical and cynical and really states that judges’ decisions have no rational bases. It is a bit of a scary view of the role of the judiciary, for the individual jurist has the power to make or break a litigant strictly on the basis of whim and caprice. And, if this were truly the case, chaos would reign in the legal system. However, chaos does not generally reign in the legal system. It really is quite orderly, if you give it any thought. Leiter (31) conceptualizes the legal system as a pyramid. At the bottom of the pyramid are the aggrieved parties who visit legal counsel, hoping that the counsel will take their case. A great number of these people are turned away at the office, because they don’t have a case. The second layer consists of individuals who do obtain legal counsel, and proceed to formal litigation. These cases are weeded out at the discovery level of litigation. Therefore, the third layer consists of the individuals who proceed to formal litigation after the discovery process is through, and proceed to trial. As most of the tried cases do not proceed to appeal, the fourth level consists of cases that are appealed. Most of the appealed cases do not go to the highest court, so at the very top of the pyramid is the small number of cases that make it to the highest court. (Leitner at 14). In other words, the bottom of the pyramid consists of literally millions of individuals, and the numbers get smaller and smaller until the top of the pyramid is reached, at which point the numbers are a fraction of the numbers at the bottom. The reason that the pyramid is structured the way that it is, according to Leitner, is because the orderly nature of our legal system. Leitner takes a positivist view of the law, which is closely related to the plain-fact view, which stipulates that law consists of primary, secondary and a rule of recognition. (Leitner at 7). Primary rules direct individual conduct. For instance, a law that states that a person cannot steal is a primary rule. Secondary rules tell us how to “create, change, identify and resolve disputes about rules.” (Leitner at 7). These rules govern law-making bodies and the judiciary as a whole. The rule of recognition is a somewhat complicated rule, but is, at its basis, a social rule. (Leitner at 7). The bases for the rule of recognition are societal norms or convergent behavior. The people in a society behave a certain way because they are obligated to behave in this way, and the rule of recognition encompasses these behaviors. (Leitner at 7). The rule of recognition provides the grounds for the other rules - for instance, it is necessary for an orderly society that individuals do not steal from one another. Individuals are therefore obligated not to steal from their neighbor. This rationale provides the grounds for anti-theft laws. In other words, a positivist believes that law is orderly. You have rules for individuals, you have rules for how disputes are resolved, and a rationale for all of the above. It is the orderly nature of the legal system that makes possible the orderly nature of the pyramid. Would-be litigants are turned away at the door of the legal office because the legal practitioner can ascertain if the individual has a case. Cases are dismissed after discovery is concluded, as the legal practitioners can ascertain if the individual still has a case after all the facts come to light. Cases do not proceed to appeal after a trial because legal practitioners know if their client has an appealable case on the basis of the law. (Leitner at 7). Under the positivist view, if there was not this structured legal underpinnings to the legal system, there would presumably be chaos. Completely groundless cases would presumably make it all the way to the top of the pyramid, as there would be no way to determine if these cases would be legitimate. Closely related to the positivist view of the law are the adherents to the plain-fact view doctrine. As discussed earlier, the plain-fact adherents believe that the grounds for law are fixed by legal officials and that plain historical facts can be the only grounds for the laws. (Shapiro at 30). According to Dworkin, the plain-fact view of the law precludes any theoretical disagreements. This is because legal participants cannot disagree about the grounds of law, they must only disagree or agree about historical facts. (Shapiro at 31). As example of the plain-fact view of law, one must look at the case of Tennessee Valley Authority v. Hill. (437 US 153, 1978). In this case, a $100 million dam threatened the habitat of a snail darter, which was deemed an endangered species by the Endangered Species Act of 1973. The majority decided in favor of the snail darter by using a strict interpretation of the Endangered Species Act. The dissent argued that halting a $100 million dam to save an insignificant creature was an absurd result, and Congress could not have intended this result. (TVA v. Hill). Both the majority and the dissent agreed on the facts of this case - that the Endangered Species Act was valid, that it was wasteful to stop the $100 million project, that the snail darter was protected by the Endangered Species Act, and that Congress didn’t envision this kind of case when it drafted the Act. (Shapiro at 32). Therefore, under the plain-facts view of the law, there should not have been a disagreement, as both the dissent and majority did not disagree about historical facts. The proponents of the plain-fact view of the law explain away disagreements that seem to turn on theoretical disagreements, as opposed to disagreements about the nature of the facts, by stating that these disagreements are not about what the law is, but what the should be. (Shapiro at 33). So, in the case of TVA above, the majority is effectively stating that the Endangered Species Act should be expanded to include construction projects substantially completed by the time the Act was passed, and the dissent is effectively stating that the Act should not be expanded as such. (Shapiro at 33). Furthermore, judicial disagreements, according to the plain-fact proponents, are not really theoretical disagreements, but an attempt to make law from the bench in a surreptitious manner. (Shapiro at 33). The above theories, the critical legal studies theory and the plain-fact view theory, represent opposite ends of the legal spectrum. The critical legal studies proclaim that there really isn’t a coherent body of law, but, rather, jurists basically make decisions based upon their individual conscience. Plain-fact proponents, on the other hand, advocate a very rigid view of the law, one in which there cannot be theoretical disagreements, only a disagreement on the historical facts. Any disagreements, in this view, are deemed legislating from the bench. Dworkin’s legal theory occupies a middle ground between these two extremes. At the heart of Dworkin’s theory is the concept of principles. (Dworkin at 22). Dworkin argues that the law is basically composed of principles and policies, not rules. (Dworkin at 22). Policies are standards that accomplish a goal, policies are standards that are to be observed because they strike at the heart of fundamental fairness. (Dworkin at 23). An example of policy would be that individuals should be forbidden to talk on cell phones while driving. This policy would accomplish a safety goal, namely, decreasing automobile accidents. An example of principle would be that a man cannot profit from his own wrong. (Dworkin at 23). This principle strikes at the very heart of fundamental fairness. Policies and principles, according to Dworkin are distinguished from rules in that they do not apply in an all-or-nothing fashion like rules do. (Dworkin at 25). Principles are weighty and important. Rules are not necessarily so. (Dworkin at 27). It is helpful to distinguish the two by regarding principles as the Law and rules as the law. (Carlson at 13). A law can be a rule that isn’t grounded by principle - for instance, you may have a law that states that a man cannot wear a hat after 5 P.M. This is a law, but isn’t Law, because it isn’t grounded. It is simply a random, arbitrary rule. Ungrounded laws are problematic, because there are inevitably other laws that are in conflict. Counsel and opposing counsel can usually dig up opposing laws to use against one another in court. Cases and statutes are examples of laws, but they are not Law. They might be unconstitutional, wrongly decided or arbitrary, like the hat example above. (Carlson at 15). An example of a court that used Law, as opposed to the law is Riggs v. Palmer. (115 N.Y. 506, 1889). In this case, a man stood to inherit a great deal of money from his grandfather. However, the grandfather was about to change his will, so his grandson murdered him before he could do so. At issue is whether the grandson could still inherit from the will. (Riggs at 506). The statute of wills in New York at that time was apparently silent as to whether a murderer could inherit. According to the four corners of the law at the time, the grandson should have inherited, because there was nothing in the statute would preclude this. However, the majority decided that the grandson could not inherit, stating that “all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit from his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” (Riggs at 511). The majority also spoke at some length about the “equity of the statute.” (Riggs at 510). That is to say, could the legislature have intended this result? The majority quoted Blackstone, who stated that if “absurd consequences” arise from a strict interpretation of a statute, then the is void with regard to these unintended “collateral consequences.” (Riggs at 510). That is to say, if the statute produces a consequence that is unreasonable or absurd, the lawmaker could not have intended it, so the statute must be reformed by the judiciary. (Riggs at 511). The dissent, looking only at the four corners of the law, decided otherwise. (Riggs at 513). Justice Gray, writing for the dissent, viewed this case with positivist/plain meaning eyes, stating that the court was bound by “the rigid rules of law,” that there was no room for an equitable interpretation of the statute of wills, that the legislature has complete control over the manner in which an individual may dispose of his property, and that the courts are not free to exercise “remedial justice.” (Riggs at 516-517). Another case cited by Dworkin is the case of Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358 (1960). In this case, the plaintiff purchased a vehicle that was defective. His wife crashed because of the defect in the steering wheel. (Henningsen at 369). The plaintiff contended that the manufacturer, Plymouth, should be not only liable for fixing the vehicle, but for the wife’s injuries as well. (Henningsen at 358). The manufacturer’s position was that the express warranty provided with the car covered repairs and the like only, and did not extend to injuries suffered as the result of any defect. (Henningsen at 369). Therefore, the four corners of the contract, as signed by the plaintiff, did not provide for negligence liability on behalf of the manufacturer. According to the positivist/plain-meaning theorists, this would be the end of the inquiry. The two parties entered into a contract, the contract expressly stated that the manufacturer is only liable for mechanical defects, not for injuries resulting thereto and there was nothing in the legislature that stated that the manufacturer could be liable in such a case. However, the majority found in favor of the plaintiff. They used such rationale as “an instinctively felt sense of justice cries out against... a sharp bargain,” such as the one made in this case, where the plaintiff accepted an express warranty that does not include liability for personal injuries. (Henningsen at 389). They also turned to the tome Corbin on Contracts, which stated that judges are free to use equitable doctrines in the cases of unjust results, also stating that there is “‘sufficient flexibility in the concepts of fraud, duress, misrepresentation and undue influence, not to mention differences in economic bargaining power’ to enable the courts to avoid enforcement of unconscionable provisions in long printed standardized contracts.” (Henningsen at 389). To decide against the plaintiff would be allowing their court to be an “instrument of inequity and injustice.” (Henningsen at 389). There could not be better illustrations of the conflict between Dworkin’s theory and the plain meaning theory than Riggs and Henningsen. The majorities decided Riggs and Henningsen by using principle, not law. In other words, they decided it by using Law as opposed to law. The principles they used in Riggs were that if a law produces an absurd result, then that portion of the law must be void, and that a wrongdoer cannot profit from his crimes. They went well beyond the four corners and reformed the law from the bench. The principles used in Henningsen were that sharp bargaining practices should not be condoned, that if a contract produces unconscionable results it must be voided, and that courts cannot be used to perpetuate inequity an injustice. The Henningsen court went beyond the common rules regarding contract interpretation and inserted their own interpretation that was based upon principles, not laws or rules. The plain-meaning theorists are no doubt appalled by these decisions, as the majorities “legislated from the bench.” According to plain-meaning theorists, in Riggs, there was no conflict about what the facts were and there was no conflict about what the law was, therefore only one result could have been found - that the grandson Elmer could profit from his crime and inherit the grandfather’s estate. The majority had concluded that the legislature could not have intended this result, stating that it was difficult for lawmakers to “set down every case in express terms.” (Riggs at 510). The dissent said that this doesn’t matter - laws are laws, no matter if they produce absurd results, and it isn’t the job of the judiciary to reform these laws, it is the job of the legislature. (Riggs at 516). The views of the Riggs majority versus the Riggs dissent perfectly illustrate the conflict between Dworkin and the plain-meaning camp. Likewise, Henningsen involved an application of equities that would be anathema to plain-meaning purists. According to long-standing views on contract laws, a bargain is a bargain, as long as the elements of offer, acceptance and consideration are in place. At that time, there were no laws in New Jersey that would contradict this bargain and no statutes that would state that the plaintiff can reach beyond the express warranty to hold the manufacturer liable for negligence. Yet the court found in favor of the plaintiff by using equity, not law. Under the plain-meaning view, this result would be illegitimate, as it was not grounded in any rule or law. These cases have debatable results. While the Riggs majority’s decision was perfectly understandable, and a just result, the court did go beyond the apparent intention of the legislature and fashioned its own rule. This would seem to wade into dangerous territory, for where would that end? It would seem that the Riggs case supports the critical legal studies’ theorists, which proclaim that there really isn’t any law, there are only the conscience and caprices of individual judiciaries. The positivist would point out that, even though an individual or a jurist might disagree with a certain law does not mean that he or she gets to disregard it. (Himma at 6). Likewise, Henningsen was not predicated upon any rule or law, just equity and an instinctual sense that the court had that the inequitable result of holding the plaintiff to the bargain that they made would be wrong. Another approach one could take, however, is to view these decisions as the judges applying principle as opposed to law. According to Dworkin, there are two different ways to treat principles. The first is that one could treat principles the same as rules, which would seem to suggest that principles would sometimes override rules, as they seemed to do in the Riggs and Henningsen cases. (Dworkin at 29). The second is that principles are supplementary, and that, if a rule seems insufficient in some way, you can use principles to make an “extra legal” decision. (Dworkin at 30). In the first case, principles are binding. In the second, they are not binding, but could be used at the convenience of a justice if a rule doesn’t seem adequate. (Dworkin at 30). One could argue that the Riggs and Henningsen could have used either or both of those rationales. In Riggs, the principle that a murderer cannot inherit from the person he murdered should be treated as a binding principle. Also, the law in effect was not adequate, as the legislature apparently omitted the contingency of a murderer inheriting, and this was an apparent oversight, as the legislature could not possibly have intended this absurd result, therefore the court was free to use extralegal principle to override the legislature. In Henningsen, the principle that contractual unconscionable results should void the contract should be treated as a binding principle. And, that the law in New Jersey did not specifically address the issue of unconscionability in contracts was a defect in the law, therefore the court was free to override the legislature and fashion an equitable remedy that supplements this defect. Dworkin’s view threatens the plain-meaning view, in that principles substitute for rules. Under the plain-meaning theory, rules are valid because of their pedigree - they were created by the legislature, by previous judges, or by statutory enactments. (Dworkin at 41). However, Dworkin, once again looking at Riggs and Henningsen, states that the pedigree thesis doesn’t always work. When the pedigree thesis does not apply, then a judiciary must apply principles that are developed over time from a sense of appropriateness. (Dworkin at 41). These principles are developed by examining a “whole set of shifting, developing and interacting standards (themselves principles rather than rules) about institutional responsibility, statutory interpretation, the persuasive force of various sorts of precedent, the relation of all these to contemporary moral practices, and hosts of other such standards.” (Dworkin at 41). The plain-meaning theorists are also undercut by Dworkin in the cases where the law is silent about an issue. According to the plain-meaning doctrine, “if a case is not controlled by an established rule, the judge must decide it by exercising discretion.” (Dworkin at 35). According to Shapiro (12), in this case, the positivists/plain-meaning theorists state that the judiciary must “look beyond the law and apply extralegal standards” to resolve these cases. (Shapiro at 12). But Dworkin states that this is incorrect - that, in these hard cases, the application of principles is binding upon the judge. (Shapiro at 12). Likewise, Dworkin’s theory is a threat to the critical legal studies’ theory in that, under Dworkin’s analysis, the law does have standards. Judges are bound by either principles, or they use principles when a rule does not seem adequate, but they do need to either follow a rule or follow a principle. They cannot, in Dworkin’s view, just substitute their own individual principle, because the principles to which Dworkin refers have been developed over time and are legitimate because they are societally appropriate. Therefore, the law does have order, and each individual judge is bound by this order. In conclusion, Dworkin’s theory occupies the middle ground between the critical legal studies and plain-meaning theorists. While the plain-meaning theorists insist that rules are to be followed, and that theoretical disagreements cannot exist, only disagreements about historical fact, Dworkin answers that theoretical disagreements can and do exist and that the best way to resolve these disagreements is through relying upon principle as opposed to rules. Whereas the critical legal studies’ theorists postulate that, because of the nature of conflicting values and the indeterminancy of language that a coherent body of law cannot be developed, therefore judges are free to individually apply the law, Dworkin responds that by using principles that are developed over time and are societally appropriate, there can be a coherent body of law that is developed and that judges should be bound these principles. There is an inherent order to the legal system in Dworkin’s vie, which puts it into direct conflict with CLS. If Dworkin’s view of the law is adopted as the prevailing view, then the other theories may become obsolete. SOURCES USED Riggs v. Palmer, 115 N.Y. 506 (1889). Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (1960). Carlson, David G. “Dworkin in the Desert of the Real.” Benjamin N. Cardozo School of Law 105 (2005): 1-23. Dworkin, Ronald M. “The Model of Rules.” University of Chicago Law Review 35 (1967): 14- 46. Himma, Kenneth E. “The Conventionality Thesis, the U.S. Constitution, and Dworkin’s Semantic Sting Argument.” Journal of Law in Society. Kutz, Christopher L. “Just Disagreement: Indeterminacy and Rationality in the Rule of Law.” Yale Law Journal 103 (1994): 997-1030. Leiter, Brian. “Explaining Theoretical Disagreement.” The University of Texas School of Law, Public Law and Legal Theory Research Paper No. 124 (August 2007): 1-43. Protevi, Scott. A Dictionary of Continental Philosophy. New Haven: Yale University Press, 2006. Shapiro, Scott J. “The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed.” Michigan Law, Public Law and Legal Theory Working Paper Series No. 77 (March 2007): 1-54 . Read More