Posts Tagged 'John Roberts'

Ronald Dworkin, RIP

I never met Ronald Dworkin, and I have not studied his work on legal philosophy carefully, but one essay that he wrote many years ago made a deep impression on me when I read it over 40 years ago as an undergraduate, and I still consider it just about the most profound discussion of law that I ever read. The essay, “Is Law a System of Rules?” (reprinted in The Philosophy of Law)  is a refutation of the philosophy of legal positivism, which holds that law is simply the command of a duly authorized sovereign law giver, an idea that was powerfully articulated by Thomas Hobbes and later by Jeremy Bentham.

Legal positivism was developed largely in reaction to theories of natural law, reflected in the work of legal philosophers like Hugo Grotius and Samuel Pufendorf, and in William Blackstone’s famous Commentaries on the Laws of England. The validity of law and the obligation to obey law were derived from the correspondence, even if only imperfect, of positive law to natural law. Blackstone’s Commentaries were largely a form of apologetics aimed at showing how well English law corresponded to the natural law. Jeremy Bentham would have none of this, calling “natural rights” (i.e., the rights derived from natural law) simple nonsense, and “natural and imprescriptible rights” nonsense on stilts.

Legal positivism was first given a systematic exposition by Bentham’s younger contemporary, John Austin, who described law as those commands of a sovereign for which one would be punished if one failed to obey them, the sovereign being he who is habitually obeyed. The twentieth century legal philosopher H. L. A. Hart further refined the doctrine in a definitive treatise, The Concept of Law, in which he argued that law must have a systematic and non-arbitrary structure. Laws are more than commands, but they remain disconnected from any moral principles. Law is not just a set of commands; it is a system of rules, but the rules have no necessary moral content.

As a Rhodes Scholar, Dworkin studied under Hart at Oxford, but he rejected Hart’s view of law. In his paper “Is Law a System of Rules?” Dworkin subjected legal positivism, in the sophisticated version (law as a system of rules) articulated by Hart, to a searching philosophical analysis. When I read Dworkin’s essay, I had already read Hayek’s great work, The Constitution of Liberty, and, while Hayek was visiting UCLA in the 1968-69 academic year, the first draft of his Law, Legislation and Liberty. In both of these works, Hayek had also criticized legal positivism, which he viewed as diametrically opposed to his cherished ideal of the rule of law as a necessary condition of liberty. But his criticism seemed to me not nearly as effective or as interesting as Dworkin’s. Despite disagreeing with Dworkin on a lot of issues, I have, ever since, admired Dworkin as a pre-eminent legal and political philosopher.

Dworkin’s main criticism of the theory that law is a system of rules was that the theory cannot account for the role played by legal principles in informing and guiding judges in deciding actual cases whose outcome is not obvious. Here is how Dworkin, in his essay, described the role of one such principle.

In 1889 a New York court, in the famous case of Riggs v. Palmer had to decide whether an heir named in the will of his grandfather could inherit under that will, even though he had murdered his grandfather to do so. The court began its reasoning with this admission: “It is quite true that statutes regulating the making, proof and effect of wills, and the devolution of property, if literally construed, and if their force and effect can in no way and under no circumstances be controlled or modified, give this property to the murderer.” But the court continued in to note 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 by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or acquire property by his own crime.” The murder did not receive his inheritance.

From here Dworkin went on to conduct a rigorous philosophical analysis of the way in which the principle that no one may profit from his own wrong could be understood within the conceptual framework of legal positivism that law is nothing more than a system of rules. In fact, Dworkin argued, rules cannot be applied in a vacuum, there must be principles and standards that provide judges with the resources by which to arrive at judicial decisions in cases where there is not an exact match between the given facts and an applicable rule, cases in which, in the terminology of legal positivism, judges must exercise discretion, as if discretion meant no more than freedom to reach an arbitrary unprincipled decision. Principles govern judicial decisions, but not in the same way that rules do. Rules are binary, on or off; principles are flexible, they have weight, their application requires judgment.

If we take baseball rules as a model, we find that rules of law, like the rule that a will is invalid unless signed by three witnesses, fit the model well. If the requirement of three witnesses is a valid legal rule, then it cannot be that a will has signed by only two witnesses and is valid. . . .

But this is not the way the sample principles in the quotations operated. Even those which look most like rules do not set out legal consequences that follow automatically when the conditions provided are met. We say that our law respects the principle that no man may profit from his own wrong, but we do not mean that the law never permits a man to profit from wrongs he commits. In fact, people most often profit, perfectly legally, from their legal wrongs. . . .

We do not treat these . . . counter-instances . . . as showing that the principle about profiting from one’s own wrongs is not a principle of our legal system, or that it is incomplete and needs qualifying exceptions. We not treat counter-instances as exceptions (at least not exceptions in the way in which a catcher’s dropping the third strike is an exception) because we could not hope to capture these counter-instances simply by a more extended statement of the principle. . . . Listing some of these might sharpen our sense of the principle’s weight, but it would not make for a more accurate or complete statement of the principle. . . .

All that is meant, when we way that a particular principle is a principle of our law, is that the principle is one which officials must take into account, if it is relevant, as a consideration inclining in one direction or another.

Just as an aside, I will observe that this passage and others in Dworkin’s essay make it clear that when Chief Justice Roberts appeared before the Senate Judiciary Committee in 2005 and stated that in his view the job of a judge is calling balls and strikes but not pitching or batting, he was using a distinctly inappropriate, and perhaps misleading, metaphor to describe what it is that a judge, especially an appellate judge, is called upon to do. See Dworkin’s essay on the Roberts hearing in the New York Review of Books.

Although I never met Dworkin, I did correspond with him on a few occasions, once many years ago and more recently exchanging emails with him about various issues — the last time when I sent him a link to this post commenting on the oral argument before the Supreme Court about the Affordable Health Care Act. His responses to me were always cordial and unfailingly polite; I now regret not having saved the letters and the emails. Here are links to obituaries in the New York Times, The Guardian and The Financial Times.

About Me

David Glasner
Washington, DC

I am an economist in the Washington DC area. My research and writing has been mostly on monetary economics and policy and the history of economics. In my book Free Banking and Monetary Reform, I argued for a non-Monetarist non-Keynesian approach to monetary policy, based on a theory of a competitive supply of money. Over the years, I have become increasingly impressed by the similarities between my approach and that of R. G. Hawtrey and hope to bring Hawtrey's unduly neglected contributions to the attention of a wider audience.

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