Comparing Dworkins and Harts Theories of Law - Essay Example

Introduction H.L.A. Hart’s theory of law encompasses an “interplay of primary and secondary rules whereby secondary rules bestow an element of power and primary rules entail obligations. Put another way, primary rules govern conduct while secondary rules permits the regulation and construction of primary rules. Ronald Dworkin’s principles of law advance an interpretive theory that essentially encompasses a concept that law is a balancing of socio-economic priorities and individual rights. In other words, law attempts to indorse current values and concepts.2 While both theories have their flaws, they do hold merit and are both pivotal. However, on a balance, Hart’s theory of law is more important to any discussion of law. The discussion that follows examines both theories and demonstrates why Hart’s theory is most essential to discussions of law. Comparing Dworkin’s and Hart’s Theories of Law Dworkin takes the position that law functions primarily on principle. By taking this position, he systematically rejects Hart’s rules’ principle. Principles in the context of Dworkin’s theory contemplate norms, policies and principles in general.3 Principles, for the most part will determine how a legal issue will ultimately be decided. While principles do not make law they are determining factors.4 Rejecting Hart’s contention that judges are permitted to use discretion in determining difficult cases, Dworkin maintains that judges are bound to consider standards used by previous judges. There is according to Dworkin an answer for every legal conundrum. The answer is found in society’s morals and values.5 Dworkin divides discretion into two categories. They are weak and hard discretion. With respect to weak discretion Dworkin concedes that judges are permitted to exercise discretion only by reference to his authority. However, Dworkin rejects the notion that judges may exercise discretion in the hard sense. In other words judges are not permitted to exercise discretion outside of his or her authority.6 The general right to exercise discretion implies that the decision maker is not bound by standards and authority.7 Hart takes an entirely different approach. Judges can only legislate to a certain extent.8 As a positivist, Hart advances the theory that law is the entirety of obligations and rules. There are some instances where ambiguous rules are applicable and the courts are forced to decide between two or more applicable rules. In such a case the judge is not bound by any particular authority or standard and has an unfettered discretion.9 They may choose between existing rules. The approach taken by Hart is far more realistic when one considers the difficulty that statutory language can create for judges. In many cases a single application of the law is not possible. Legislators cannot always contemplate future developments and cannot draft precise laws. It therefore makes sense that judges are left with discretion. Moreover, Hart contends that the common law precedent mechanism makes room for interdeterminacy. In these instances, there are no hard and fast rules for the regulating of precedence setting. Judges are permitted to broaden or narrow the rule of law arising from common law precedents. Hart expounds on his concept of discretion by adding that words like “fairness”, “justice” and “reasonableness” alone confer upon judges a wide breadth of discretion since these words connote very broad and general standards.10 At all times judges are required to exercise their discretion by reference to valid law. As Michael Bayles explains: “Hart explicitly recognizes such a duty of the judicial role to use laws as authoritative reasons in regulating the conduct of others.”11 Dworkin, on the other hand maintains that judges are permitted to turn to principle when laws are ambiguous or non-existent. Dworkin provides two examples of cases in which judges turned to principle rather than rules in determining the outcome of a case. In the example of Riggs v Palmer a New York court devised a social purpose rule of construction. In this case, Palmer, in anticipation of his grandfather’s death and the knowledge that he would be disinherited, murdered his grandfather. Riggs brought an action seeking to invalidate the will on the grounds that should Palmer take property and assets under the will he would be profiting from his crime. At the time there were no statutory provisions prohibiting Palmer taking assets under the will of a testator whom he had murdered.12 Judge Robert Earl ruled that: “The principle which lies at the bottom of the maxim, volenti non fit injuria [to a willing person, no injury is done], should be applied to such a case…”13 Dworkin, drawing on this decision claims that it is demonstrative of the fact that principles of law are central to the dynamics of law. While these principles are not entirely binding they are sufficiently capable of altering statutes and modifying law. Be that as it may, Hart’s legal positivism is more adequately supported by the ruling in Riggs. It is clear that the judges were functioning in a purely discretionary context. The judges were merely determining in which direction legal rules are better suited for social and public interests. This case demonstrated an application of a rule of law, not the application of some principle. When one looks at the words used by Judge Earl, he was merely applying and interpreting the existing rule of non volenti fit injuria. Dworkin’s second example uses was Henningsen v. Bloomfield Motors, Inc. in which Henningsen purchased a car from Bloomfield under warranty. Several days later Hemingsen was driving the car at a low rate of speed when the car suddenly veered out of control and crashed into a wall and was completely destroyed. Bloomfield maintained that the warranty only guaranteed defective car parts not damages from defective parts.14 It was held that damages caused as a result of defective car parts were implied under the warranty. The implication was that cars sold were implicitly of merchantable quality. To limit liability by manufacturers and dealers to mere replacement of defective car parts is contrary to public policy and the principles of fair dealing.15 Dworkin uses this case to support his theory that principles are central to law making and judge’s discretion. However, a closer examination of the decision reveals that rules of construction were used to import the law regulating fair dealing into the court’s exercise of its discretion. This is more congruent with Hart’s theory of secondary law. The courts exercised a discretion to interpret and modify existing primary rules by introducing the concept of an implied warranty. Dworkins is adamant however that principles do not insist upon a specific decision as do rules. Only where a rule is clear and unambiguous should it be applied. Principles are distinguished from rules in that they are not rules, but rather thy are reasoned decisions that judges employ in an appropriate case. 16 Judges must therefore respond according to public policy and standards: “…because it is a requirement of justice or fairness or some other dimension of morality.”17 Judges therefore are void of discretion since they must comport to public standards and morality. Judges are not legislating they are discovering rules.18 The difficulty with Dworkin’s theory is that judges have no discernible means by which to gauge public standards and morals. The only means by which they can gauge these morals and standards is by the exercise of some discretion. Moreover, judges are generally bound by rules of construction when applying reasons for a decision. It is therefore more consistent with Hart’s theory that rules guide a judge’s discretion. Since there is no such thing as objective morality, Dworkin’s theory is fundamentally flawed. It is difficult to take issue with Hart’s theory of law which by and large implies that there is no real certainty and predictability of law. Judges are therefore destined to exercise law using discretion in certain situations, which invariably means the broadening or narrowing of existing rules of law. They do not as Dworkin contends go outside the rules of construction and pull together principles for the construction of new law. Professor Frank H. Sommers of New York University in his evaluation of Hart’s the Concepts of Law and concludes that: “Hart offered interconnected answers to both the sociological and the doctrinal questions, and his answer to the latter is more original and much more important.”19 There is little doubt that Hart’s theory of secondary and primary rules is reflective of many characteristics of law. On the other hand, Dworkin’s theories of principles of law are far more idealistic. Sommers’ analogy puts Hart’s concept of law into its proper perspective and provides an example of how effective his approach to law is. As Sommers maintains: “We must take care to distinguish two questions, both of which might be described as questions about the nature of law. The first is sociological: what makes a particular structure of governance a legal system rather than some other form of social control, such as morality religion, force, or terror? The second is doctrinal: what makes a statement of what the law of some jurisdiction requires or permits true? The two questions are interconnected but their differences are of capital importance.”20 In the context of Hart’s concepts and theories of the rule of law, the sociological and doctrinal characterization of law are prevalent. Hart recognizes that laws are necessary for social control and is relevant to the sociological nature of law. For instance, long held ideals about the importance of civil liberties were compromised by the enactment of the Anti-Terrorism, Crime and Security Act 2001 which came about in response to the Septermber 11 terrorist attacks in the US. The Act permits the UK to derrogate from Article 5 of the European Convention on Human Rights which prohibits unlawful arrest and detention.21This provision reflects Hart’s rule of law ideology and the implementation of rules for social control as the specific times dictate. The derrogation must be justified for national security purposes.22 This ties in with the doctrinal nature of law which is similarly relevant to Hart’s concept that judge’s are guided by rules in the exercise of their discretion. This is obvious by the reasons often stated for their decisions. Hart was therefore: “…right to think that the combination of first-order standards imposing duties and second-order standards regulating the creation and identification of those first-order rules is a central feature of paradigmatic legal systems.”23 According to Hart, “no proposition of law” is correct or true unless there is a “rule making it true” has been: “..created or identified…by a social convention accepted by at least the bulk of legal officials of the pertinent community.”24 A rule of law has to exist in the first place, otherwise judge’s would not be at liberty to make decisions based solely on what the law should be. Dworkin, however, appears to be of the opinion that judges are guided by principles and can function to systematically make laws and rules according to what public morals demand. The judiciary is bound to follow the law although they may interpret it. Courts are predisposed to accept Parliamentary sovereignty and it is this recognition that precludes the introduction of Dworkin’s principles of law. In R (Jackson) v Attorney General the House of Lords accepted that once Parliament passes a law, it is not up to the courts to question its validity once it has met all the formal requirements of the law for enactment.25 This was duly noted by Lord Denning in Maccarthys Ltd v. Smith.26 Hart’s concept of law is evidenced by the tools that judges have at their disposal by which they can control the development of the law. These tools, the doctrine of stare decisis or case law precedents and statutory interpretations. are predicated on a system of rules that can be characterized as primary and secondary in nature.27 Unlike statutes, precedents originate from the courts but Parliament can legislate against them.28 Bennion and Goodall maintain that since Parliament has the last call the judiciary’s power is constrained.29 Moreover the concept of Judicial precedent making is designed to maintain the integrity of the justice system by providing consistency and certainty. Although, there have been cases where the judiciary has departed from this tendency, departures are rare.30 In Re Schweppes Ltds Agreement,31 Wilmer LJ sitting in the Court of Appeal dissented. In a later case that day, the same legal point arose32, he maintained that he was bound to follow the previous decision. It is obvious that courts are guided by rules rather than principles. It therefore follows that in any meaningful discussion of law, Hart’s rule of law is far more relevant and applicable than Dworkin’s principle of law approach. Decisions of the House of Lords are binding on all other courts and itself although not always.33 This departure however was only possible by the introduction of a rule of law and not by the application of some objective principle.34 Conclusion Despite judicial flexibility in interpreting statutes and setting precedents, the judiciary is limited in its ability to prevent changes in the law.35 Those changes come from Parliament and as such speak to Hart’s concept of the rule of law. While Parliament may act on principle it is certainly not a judicial function, since the judiciary has consistently maintained that it merely interprets the law as enacted by parliament. Therefore, Hart’s concept of the rule of law is essential to an understanding of how law develops and evolves. The presumption is that elected members of Parliament are representatives of the morals of the community and the judges merely apply the law as constructed by Parliament. Bibliography Bayles, Michael. (Nov., 1991) Hart vs Dworkin. Law and Philosophy, Vol. 10, No. 4pp. 349-381 Bayles, Michael. (1992) Hart;s Legal Philosophy. Springer Bennion, Francis & Goodall, Kay. [2006] “A New Skill? Law-Text Analysis.” 3 Web JCLI http://webjcli.ncl.ac.uk/2006/issue3/bennion-goodall3.html Viewed December 20, 2007 Davis, Fergal F. Extra-Constitutionalism, the Human Rights Act and the ‘Labour Rebels’: applying Prof Tushnet’s theories in the UK [2006] 4 Web JCLI http://webjcli.ncl.ac.uk/2006/issue4/davis4.html Viewed December 20, 2007 Dworkin, Ronald. (1986). Law’s Empire. Belknap Press of Harvard University Press. Dworkin, Ronald.(October, 10, 1963) Judicial Discretion. The Journal of Philosophy. Vol. 60 No.21 pp 624-638 Dworkin, Ronald. (1977) Taking Rights Seriously. Cambridge: Harvard University Press. Gaffrey, Paul.(1996) Ronald Dworkin On Law As Integrity. New York : Meller University Press Harris, B.V. (2002), ‘Final Appellate Courts Overruling their Own “Wrong” Precedents: the OngoingSearch for a Principle’, Law Quarterly Review 408 p. 118 Hart, H.L.A. (1997) The Concept of Law. Oxford University Press. Henningsen v. Bloomfield Motors, Inc (1960) 32 N.J. 358, 161 A.2d 69 London Street Tramways Co.v.London County Council [1898] AC 375 Maccarthys Ltd v. Smith [1981] 1 All ER 111 Murphy, Jeffrie, G. and Jules, L. Coleman. (1990) Philosophy of Law: An Introduction to Jurisprudence. Westview Press Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 Re Automatic Telephone and Electric Co. Ltds Agreement [1965] 1 All ER 206 Re Schweppes Ltds Agreement [1965] 1 All ER 195 Riggs v Palmer (1889) 115 N.Y. 506 R (Jackson) v Attorney General [2005] QB 579 Schauer, Federick and Sinnott-Armstrong, Eds.(1996) The Philosophy of Law: Classic and Contemporary Readings with Commentary. Harcourt Brace and Company Slapper, G and D. Kelly. (2001) The English Legal System. London: Cavendish. Sommers, Frank, H. (2006) “Hart and the Concepts of Law.” Harvard Law Review Vol. 119 pp 95-103 Zander, Michael. .(2004) The Law Making Process Law in context. Cambridge University Press Read More