American Philosopher: Ronald Dworkin - Essay Example

The of Your Manuscript Here: here Unit Lecturer’s Here Ronald Dworkin was a renowned American philosopher and expert in constitutional law. His fame as a law expert is, as a result of his contradicting views on legal positivism. Legal positivism emphasizes that social norms construct. Positivists view law as positive norms whether created by a legislator or common law. The enforcement and effectiveness of social norms are enough to regard the norms as law. Legal positivism draws its inspiration from its opposing views to the classical natural law1. Dworkin rejected all the aspects of legal positivity, and many regard him as positivism’s most significant critic. He objected the generalization on the content of the law and the identification of law without the consideration of its merits. In short, Dworkin opposed the whole institution of positivism. He viewed the theory of law as a theory that law begins as an abstract ideal and not as a result of a political process2. The state utilizes this abstract ideal to establish governance over its subjects. Ronald Dworkin vehemently objected Hart’s legal positivism as he interprets the law, thereby forming his interpretive theory on law. In his law, he argues that the morality of people is often misleading and faulty according to the law. Morality becomes faulty when certain crimes are acceptable. Through the interpretation of legal data, courts discover and apply the principles that guide it in fulfilling its objectives. Rarely do courts use a moral standpoint when interpreting the data. This interpretation, in order to enforce the law, justifies the practice of law3. Furthermore, Dworkin stated that for the law to make sense, it had to view the law as integrity. In a situation or case where a person’s legal rights are deemed controversial, use of his right answer thesis is the next best step. In the thesis, Dworkin states that the law once interpreted properly gives the answers to solve controversial issues. The interpretation, to give the right answer, should be as a result of everyone applying himself to the legal question and coming up with an answer. He continues to suggest the integration of Judge Hercules, a judge who is immensely blessed in wisdom and knowledge. The judge, a metaphor, develops a theory that justifies the law as integrity and finally comes up with the right answer4. In simpler terms, judge Hercules would give the right answer that causes lawyers to disagree. Dworkin noted that lawyers, more often than not, argue on the right answer to a case, and this is the answer that Hercules gives. Dworkin questions the definition of truth in legal terms; whether interpretations or judgments are sources of legal truth. This question is as a result of the fact that humans’ disagreeing nature in all aspects of life. The disagreement most of the time is as a result of the different perceptions of the law5. The disagreements are incessant when it comes to the interpretation of the law. The formation of legal arguments often overlooks the difference in interpretation. His first tenet, in the interpretive theory, Dworkin concludes that entirely denying the existence of truth is a skeptic perception. He views this perception as judgment or position people assume in neglecting the existence of the truth6. The appropriate thing to say or accept in such a situation is there is an inherent disagreement. He comes to this conclusion in order to solve the ceaseless argument that would result from the agreeing that there is no truth. He regards all humans as capable and responsible of interpreting law and truth. Judges, in his opinion, simply interpret the law from a background of people who had previously interpreted the law. He uses an iceberg to illustrate this, the judge’s judgment or interpretation is the tip of the iceberg that is built up from other interpretations. Finally in his interpretive theory, Dworkin concludes that past interpretations of the law gives the judgment truth. The theory opposes positivists’ views on judicial action and interpretation of the law and truth. Legal positivism operates on the notion that people conceive legal systems, and they are not as a result of natural or metaphysical existence. Positivism attempts to answer the question about the definition and functions of the law7. The law, according to positivists, is based on the possible and valuable nature of a morally neutral theory of law. Positivism does not question the merits or demerits of the law; it fails to address the nature law should take. According to Hart, the most prominent figure on positivism identified the difference of being obliged and having an obligation to the law. He concluded that people have an obligation in acting as required by the law. To expound on positivism, Hart developed his legal theory. In the theory, he rejects the necessity of the law being sovereign for it to be implemented. He utilizes the concept of rules and their difference from habits as the basis of his theory. To prove the potency of his theory, he divides it into two: primary and secondary rules8. These two divisions combine through the use of a superior rule that overrides the pre-existent rules. This superior rule, in his opinion, grants authority to any legal system. The rule of recognition is the superior rule. The theory further states the two conditions that are vital in the existence of any legal system. The first is the people’s obedience to the rules of the legal system. Second, the common public must accept the standards developed by the rule of recognition. These standards also dictate the official behavior of the officials in the legal system. Positivism revolves around three principles, or tenets; that define the theory’s take on the criteria of legality. The tenets include the Separability thesis, the social fact thesis and the conventionality thesis. The first tenet, the Separability thesis, concedes that morality does not influence the law9. This thesis concedes that it is possible for the law to exist without the inclusion of moral norms. The second thesis, social fact thesis, states that the law and all legal institutions are all social constructs. That is, social facts determine the existence, content and responsibilities of these entities. The facts also dictate the way in which officials of the legal system exercise their duties. Last but not least is the conventionality thesis that uses the rule of recognition in determining the criteria of legality10. The criteria, according to this thesis, are determined by the standards collectively accepted by the officials in the community. All the officials of the legal system collectively agree to perform the duties outlined by the law. The thesis concludes that the social rule ultimately determines the criteria of legality. The two philosophers differ mainly about the factors that contribute to the validity of the rule of recognition. Hart concedes that the officials of the legal system make the rule of recognition valid. Dworkin, on the other hand, disagrees with Hart’s point of view, and this forms the first point of his theory. Dworkins establishes that legal principles exist and that they are they validate the rule of recognition11. In his theory, Hart argues that there are legal scenarios that fail to fall under any rule. These scenarios force judges to disclaim jurisdiction or refer the case to the legislature to pass the judgment. Dworkin views this as a weakness; letting judges act as the legislature. The principles of justice, according to Dworkin, should provide fairness to the community’s legal practice. Dworkin views positivity as granting too much discretion to judges. Positivism allows judges to assume the role of the legislature and this awards them with too much power. The rule of recognition, in Hart’s point of view, is reliant on the legal system’s officials12. This presents a question that at times compromises the legitimacy of the positivists’ cause, what grants power to the officials? In positivism judges, upon encountering hard cases such as the Donoghue v Stevenson encounter plenty of hurdles before passing their judgment13. Hart suggests that, in such cases, which lack prior ruling, judges should make new law. This, according to Dworkin, grants the judges too much power and reign over the case. In Dworkin’s law as integrity, rule predicts an outcome and in such a case Donogue v Steveson the judges are awarded much discretion. The judge becomes the legislature. This undue power and responsibility contradicts with the modern democratic system where the citizens elect their legislators into office. Judges, therefore, should not assume the responsibility of elected officials. To solve this legal debacle, Dworkin suggests the integration of moral facts to solve such a hard case. The moral facts Dworkin suggests are derived from the political theory14. Using the right answer thesis, Dworkin supports the use of moral facts. The right answer, however, does not augur well with positivists who question the use of the term ‘right’. Dworkins responds by questioning the contradicting nature of the discretion awarded to the judges. The discretion awarded to judges is in violation to the law that rules the nation that the legal system operates. Dworkin views this discretion as an anomaly and suggests the search of the right solution to solve this anomaly. The idea of interpretation of the law assists in reducing the discretion awarded to the judges. A judge cannot create the law. The case of McLoughlin v O’Brian outlines the contrasting nature of these two theories. The case is about murder but revolved an issue that had no precedence in court15. Positivists suggested that the judge should create a new law because the case lacked a previous law to deal with the case. The judge, given this authority will come up with a solution that agrees with the majority of people. Dworkin, in law as integrity, objects the idea of a judge voicing his or her moral of political beliefs. The use of other interpretations and decisions from similar cases prior to interpreting the current case is a constrained process16. The judge in the aforementioned scenario only constructs a new law from existing law. In Dworkin’s opinion, there is no law without morals and vice versa. Moreover, there is no law that exists beyond the current law. In the McLoughlin v O’Brian case, the judges ought to look at the general principles that differentiate this case. These general principles heavily rely on simple morality concepts. Dworkin concludes by attesting that there only exist principles in the legal system. The judges’ responsibility in the legal system is to weigh principles regarding the citizens’ rights. A judge should not take into consideration policies in the decision-making process. The judge after weighing and passing of judgment should give detailed reasons as to why they chose one principle over the other17. Gaps in the law characterize the Positivism theory and Dworkin tries to plug the holes using his interpretation theory. The theory views the law as an incessant system that involves the weighing of principles. In Dworkin’s society, everyone is under the law inclusive of the judges. The courts duty is to resolve legal matters through principles that are present in previous cases. Dworkin does not oppose Hart’s positivity theory rather he tries to correct it. He tries to remove the ambiguity present in Hart’s theory. Dworkin, in the law as integrity, discovers and addresses the faulty nature of the positivist’s legal theory. This ability to critically analyze positivism is what earns Dworkin the title as the most influential legal philosopher of modern time. Read More