Natural Law (3)

Kenneth Einar Himma

 

Table of Contents

 

5. Ronald Dworkin's "Third Theory"

6. References and Further Reading

 

5. Ronald Dworkin's "Third Theory"

Ronald Dworkin's so-called third theory of law is best understood as a response to legal positivism, which is essentially constituted by three theoretical commitments: the Social Fact Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts it is a necessary truth that legal validity is ultimately a function of certain kinds of social facts; the idea here is that what ultimately explains the validity of a law is the presence of certain social facts, especially formal promulgation by a legislature.

The Conventionality Thesis emphasizes law's conventional nature, claiming that the social facts giving rise to legal validity are authoritative in virtue of a social convention. On this view, the criteria that determine whether or not any given norm counts as a legal norm are binding because of an implicit or explicit agreement among officials. Thus, for example, the U.S. Constitution is authoritative in virtue of the conventional fact that it was formally ratified by all fifty states.

The Separability Thesis, at the most general level, simply denies naturalism's Overlap Thesis; according to the Separability Thesis, there is no conceptual overlap between the notions of law and morality. As Hart more narrowly construes it, the Separability Thesis is "just the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so" (Hart 1994, 185-186).

Dworkin rejects positivism's Social Fact Thesis on the ground that there are some legal standards the authority of which cannot be explained in terms of social facts. In deciding hard cases, for example, judges often invoke moral principles that Dworkin believes do not derive their legal authority from the social criteria of legality contained in a rule of recognition (Dworkin 1977, p. 40).

In Riggs v. Palmer, for example, the court considered the question of whether a murderer could take under the will of his victim. At the time the case was decided, neither the statutes nor the case law governing wills expressly prohibited a murderer from taking under his victim's will. Despite this, the court declined to award the defendant his gift under the will on the ground that it would be wrong to allow him to profit from such a grievous wrong. On Dworkin's view, the court decided the case by citing "the principle that no man may profit from his own wrong as a background standard against which to read the statute of wills and in this way justified a new interpretation of that statute" (Dworkin 1977, 29).

On Dworkin's view, the Riggs court was not just reaching beyond the law to extralegal standards when it considered this principle. For the Riggs judges would "rightfully" have been criticized had they failed to consider this principle; if it were merely an extralegal standard, there would be no rightful grounds to criticize a failure to consider it (Dworkin 1977, 35). Accordingly, Dworkin concludes that the best explanation for the propriety of such criticism is that principles are part of the law.

Further, Dworkin maintains that the legal authority of standards like the Riggs principle cannot derive from promulgation in accordance with purely formal requirements: "[e]ven though principles draw support from the official acts of legal institutions, they do not have a simple or direct enough connection with these acts to frame that connection in terms of criteria specified by some ultimate master rule of recognition" (Dworkin 1977, 41).

On Dworkin's view, the legal authority of the Riggs principle can be explained wholly in terms of its content. The Riggs principle was binding, in part, because it is a requirement of fundamental fairness that figures into the best moral justification for a society's legal practices considered as a whole. A moral principle is legally authoritative, according to Dworkin, insofar as it maximally conduces to the best moral justification for a society's legal practices considered as a whole.

Dworkin believes that a legal principle maximally contributes to such a justification if and only if it satisfies two conditions: (1) the principle coheres with existing legal materials; and (2) the principle is the most morally attractive standard that satisfies (1). The correct legal principle is the one that makes the law the moral best it can be. Accordingly, on Dworkin's view, adjudication is and should be interpretive:

 

[J]udges should decide hard cases by interpreting the political structure of their community in the following, perhaps special way: by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract (Dworkin 1982, 165).

There are, thus, two elements of a successful interpretation. First, since an interpretation is successful insofar as it justifies the particular practices of a particular society, the interpretation must fit with those practices in the sense that it coheres with existing legal materials defining the practices. Second, since an interpretation provides a moral justification for those practices, it must present them in the best possible moral light.

For this reason, Dworkin argues that a judge should strive to interpret a case in roughly the following way:

 

A thoughtful judge might establish for himself, for example, a rough "threshold" of fit which any interpretation of data must meet in order to be "acceptable" on the dimension of fit, and then suppose that if more than one interpretation of some part of the law meets this threshold, the choice among these should be made, not through further and more precise comparisons between the two along that dimension, but by choosing the interpretation which is "substantively" better, that is, which better promotes the political ideals he thinks correct (Dworkin 1982, 171).

As Dworkin conceives it, then, the judge must approach judicial decision-making as something that resembles an exercise in moral philosophy. Thus, for example, the judge must decide cases on the basis of those moral principles that "figure[] in the soundest theory of law that can be provided as a justification for the explicit substantive and institutional rules of the jurisdiction in question" (Dworkin 1977, 66).

And this is a process, according to Dworkin, that "must carry the lawyer very deep into political and moral theory." Indeed, in later writings, Dworkin goes so far as to claim, somewhat implausibly, that "any judge's opinion is itself a piece of legal philosophy, even when the philosophy is hidden and the visible argument is dominated by citation and lists of facts" (Dworkin 1986, 90).

Dworkin believes his theory of judicial obligation is a consequence of what he calls the Rights Thesis, according to which judicial decisions always enforce pre-existing rights: "even when no settled rule disposes of the case, one party may nevertheless have a right to win. It remains the judge's duty, even in hard cases, to discover what the rights of the parties are, not to invent new rights retrospectively" (Dworkin 1977, 81).

In "Hard Cases," Dworkin distinguishes between two kinds of legal argument. Arguments of policy "justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole" (Dworkin 1977, 82). In contrast, arguments of principle "justify a political decision by showing that the decision respects or secures some individual or group right" (Dworkin 1977, 82).

On Dworkin's view, while the legislature may legitimately enact laws that are justified by arguments of policy, courts may not pursue such arguments in deciding cases. For a consequentialist argument of policy can never provide an adequate justification for deciding in favor of one party's claim of right and against another party's claim of right. An appeal to a pre-existing right, according to Dworkin, can ultimately be justified only by an argument of principle. Thus, insofar as judicial decisions necessarily adjudicate claims of right, they must ultimately be based on the moral principles that figure into the best justification of the legal practices considered as a whole.

Notice that Dworkin's views on legal principles and judicial obligation are inconsistent with all three of legal positivism's core commitments. Each contradicts the Conventionality Thesis insofar as judges are bound to interpret posited law in light of unposited moral principles. Each contradicts the Social Fact Thesis because these moral principles count as part of a community's law regardless of whether they have been formally promulgated. Most importantly, Dworkin's view contradicts the Separability Thesis in that it seems to imply that some norms are necessarily valid in virtue of their moral content. It is his denial of the Separability Thesis that places Dworkin in the naturalist camp.

 

6. References and Further Reading

Thomas Aquinas, On Law, Morality and Politics (Indianapolis: Hackett Publishing Co., 1988)

John Austin, Lectures on Jurisprudence and the Philosophy of Positive Law (St. Clair Shores, MI: Scholarly Press, 1977)

John Austin, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, 1995)

Jeremy Bentham, A Fragment of Government (Cambridge: Cambridge University Press, 1988)

Jeremy Bentham, Of Laws In General (London: Athlone Press, 1970)

Jeremy Bentham, The Principles of Morals and Legislation (New York: Hafner Press, 1948)

Brian Bix, "On Description and Legal Reasoning," in Linda Meyer (ed.), Rules and Reasoning (Oxford: Hart Publishing, 1999)

Brian Bix, Jurisprudence: Theory and Context (Boulder, CO: Westview Press, 1996)

Brian Bix, "Natural Law Theory," in Dennis M. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory (Cambridge: Blackwell Publishing Co., 1996)

William Blackstone, Commentaries on the Law of England (Chicago: The University of Chicago Press, 1979)

Jules L. Coleman, "On the Relationship Between Law and Morality," Ratio Juris, vol. 2, no. 1 (1989), 66-78

Jules L. Coleman, "Negative and Positive Positivism," 11 Journal of Legal Studies 139 (1982)

Jules L. Coleman and Jeffrie Murphy, Philosophy of Law (Boulder, CO: Westview Press, 1990)

Ronald M. Dworkin, Law's Empire (Cambridge: Harvard University Press, 1986)

Ronald M. Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977)

John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980)

John Finnis, "The Truth in Legal Positivism," in Robert P. George, The Autonomy of Law (Oxford: Clarendon Press, 1996), 195-214

Lon L. Fuller, The Morality of Law, Revised Edition (New Haven: Yale University Press, 1964)

Lon L. Fuller, "A Reply to Professors Cohen and Dworkin", 10 Villanova Law Review 655 (1965), 657.

Lon L. Fuller, "Positivism and Fidelity to Law--A Reply to Professor Hart," 71 Harvard Law Review 630 (1958)

Klaus F?ter, "Farewell to 'Legal Positivism': The Separation Thesis Unravelling," in George, The Autonomy of Law, 119-162

Robert P. George, "Natural Law and Positive Law," in George, The Autonomy of Law, 321-334

Robert P. George, Natural Law Theory: Contemporary Essays (Oxford: Clarendon Press, 1992)

H.L.A. Hart, The Concept of Law, Second Edition (Oxford: Clarendon Press, 1994)

H.L.A. Hart, "Book Review of The Morality of Law" 78 Harvard Law Review 1281 (1965)

H.L.A. Hart, Essays on Bentham (Oxford: Clarendon Press, 1982)

H.L.A. Hart, "Positivism and the Separation of Law and Morals," 71 Harvard Law Review 593 (1958)

Kenneth Einar Himma, "Positivism, Naturalism, and the Obligation to Obey Law," Southern Journal of Philosophy, vol. 36, no. 2 (Summer 1999)

Kenneth Einar Himma, "Functionalism and Legal Theory: The Hart/Fuller Debate Revisited," De Philosophia, vol. 14, no. 2 (Fall/Winter 1998)

J.L. Mackie, "The Third Theory of Law," Philosophy & Public Affairs, Vol. 7, No. 1 (Fall 1977)

Michael Moore, "Law as a Functional Kind," in George, Natural Law Theory, 188- 242

Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979)

Joseph Raz, "Authority, Law and Morality," The Monist, vol. 68, 295-324

Joseph Raz, "Legal Principles and the Limits of Law," 81 Yale Law Review 823 (1972)

Geoffrey Sayre-McCord, "The Many Moral Realisms," in Sayre-McCord (ed.), Essays on Moral Realism (Ithica: Cornell University Press, 1988)