This article is written by Sahil Aggarwal, currently pursuing B.A.LLB. (Hons) from NALSAR University of Law, Hyderabad. The article explores the criticisms of Legal Positivism as provided by Ronald Dworkin, and emphasizes the importance of different schools of thought in legal philosophy.
Table of Contents
Introduction
The question of how we approach the phenomenon, called the ‘law’, is, perhaps at the root of the entire discipline of legal philosophy. Since, the approach to the law does not only help us in articulating its conception, functions, and contours but it also allows us to understand its intricate relationship with the society itself, thus facilitating constant and conducive interaction between them. However, these approaches to the law are often conflicting with each other, be it in their nature or their implications. For instance, why do we follow our constitution? Is it because it was formulated by our honourable constituent assembly or because it is our moral duty to act according to its mandate?
Hence the conflict, thus, in this article we explore the most prominent of these conflicts from the perspective of Ronald Dworkin, an American scholar and jurist who is acclaimed for his strongest critique of Legal Positivism.
Theory of legal positivism
There’s no uncertainty as to the fact that the expression ‘Legal Positivism’ has been used in many different senses by different scholars in their works, to the extent that sometimes mutually incompatible theses of Legal Positivism have been given. Nevertheless, essentially speaking, the word ‘positivism’ derives its meaning from the Latin word ‘positum’, which means ‘law’ as it is laid down or posited. This implies that the validity of a law can be traced back to its objectively verifiable source. It is essentially similar to scientific positivism, which proposes that there is no effect from an abstract cause, accordingly, the law can only be created by people, instead of coming from a metaphysical or natural source.
For instance, the early legal theorists like Bentham and Austin argued that the law originates from the command of a sovereign. Subsequently, H.L.A. Hart conceptualized a ‘rule of recognition that, according to him, distinguished the law from other social rules. Often, however, legal positivists have claimed that there is no necessary connection between law and morals and that analysis of legal concepts should be done distinctly from other sociological and historical inquiries and critical evaluations.
This brief introduction to Legal positivism succinctly, yet not sufficiently explains what Legal Positivism in its content holds, and also provides testimony for the initial claim that the ‘Legal Positivism’ as a school of thought holds diverse perspectives in itself. However, in further sections, we dwell upon some of the theories present in this school of thought in detail to locate Dworkin’s criticism of Legal Positivism.
Dworkin’s interaction with legal positivism
As suggested earlier, there’s no articulate conception of Legal Positivism that makes it easy to evaluate from different perspectives, hence, Dworkin had to inevitably identify some fundamental grounds of Legal positivism to critique it satisfactorily. In this process, he chose Hart’s conception of ‘Legal Positivism’ as his target. This is not only because he was concerned with the defects in Hart’s theory, but also because, according to him, Hart’s theory presented the most sophisticated view on Legal positivism. Hence, it becomes imperative for us to understand Hart’s conception of Legal positivism first.
Hart’s approach towards legal positivism
Hart’s conception of Legal positivism, essentially traces itself, in the form of criticism to Austin’s classical version of Legal Positivism. Austin’s theory of law identifies various rules that govern human conduct. He recognizes that some laws are set for humans by God, which are not morally acceptable but binding for humans, this is ‘divine law’. Other laws are made by humans for each other, these are called ‘positive laws.’
All other standards, etiquettes, custom, or international traditions, as a source of law are not proper laws according to him. He maintains that ‘a law’ is a command traceable to a sovereign and is backed by retribution in case of non-compliance. In this sense, most of the standards, etiquettes, etc. which he calls ‘positive morality’ are not ‘laws’ since, firstly, they are informally recognized without any authority, and secondly, their violation does not necessarily attract punishment.
Hart emphatically rejects this notion of law, but he does not discard positivism for his understanding of the law. In his conception, laws are distinguishable in terms of ‘primary’ and ‘secondary’ rules of law. ‘Primary’ law represents those rules that impose obligations on the subjects, in other words, these laws are similar to Austin’s idea of ‘positive laws’. However, Austin’s conception does not recognize ‘secondary rules’ which, according to Hart, are rules about rules.
For instance, laws like the Indian Penal Code (IPC), etc. impose an obligation upon individuals to regulate their behaviour in social context accordingly. However, one of the closest examples for secondary rules thus becomes the Code of Criminal Procedure (CrPC), which confers powers upon authorities to formulate, amend, ascertain its compliance. As an implication, this means the set of primary laws and secondary laws loosely forms the core of the concept of law. Hart emphasizes that the combination of primary and secondary rules is not sufficient to characterize it as a legal system. Thus, he conceptualizes an ultimate ‘rule of recognition’ which exists as a matter of official practice, and authorizes the deliberate creation of legal rules. For instance, the Constitution of India ultimately forms the cornerstone of legitimacy for all laws ever formed through parliamentary procedures.
Thus, Hart’s conception does not recognize an ultimate sovereign as a source for validating laws. Rather, he presents the ‘rule of recognition’ as an ultimate criterion to draw legitimacy from, in a legal system. Hart further maintains that the validity of these rules is not dependent on their general acceptability in people, like in the case of other social rules. Here, Hart’s positivism takes shape. Since, it implies that for legal rules to acquire the validity of the law, they do not require popular or moral legitimation from the people. Hence, Hart, although rejects that laws are commands, yet accepts that there is no relationship between morals and laws.
Dworkin and legal positivism as an approach
Dworkin in his critique begins by reinstating what the fundamental tenets of legal positivism are:
The principle of pedigree
Dworkin observes that according to legal positivists, the law of the community is a set of special rules which are identified by their pedigree, in other words, the manner in which they were conceived or developed. Rules, not fulfilling this criterion of specific pedigree, are ‘spurious legal rules.’
The extent of the law
These specific legal rules, that fulfil the criteria of pedigree, may sometimes not cover a particular case or situation, in such circumstances, the decision reached by the judge is not equivalent to ‘applying the law’, rather it is equivalent to reaching beyond the law to take reference from some other standards to decide the case.
Legal obligations
Obligation to act or omit to act in certain ways, can only be sourced from the specific legal rules. If a judge’s decree requires a person to act in a certain way, it does not mean he is fulfilling his legal obligation as to that issue.
Dworkin, however, humbly accepts that these ideas are just a ‘skeleton’ or fundamentals of Legal Positivism. Accordingly, different theorists incorporate different understandings of Legal Positivism around this skeleton.
Dworkin’s observations from Hart’s positivism
Dworkin, in his criticism of Legal Positivism, distinguishes between Austin’s and Hart’s conception of Legal Positivism. He recognizes that Hart’s conception is more complex than Austin’s in many ways, firstly, Austin distinguishes the rules in terms of ‘primary’ and ‘secondary’ rules, and secondly, that Hart includes a broader understanding of rules, and rejects the basis of command as provided by Austin. Thirdly, Hart’s criteria for the validity of legal rules, that is ‘rule of recognition’ was more sophisticated than Austin’s conception of rules as a command. This is because the legitimacy granted to the legal rules by a rule of recognition is conceivable more legitimate than a naked command given by a sovereign.
Dworkin and the distinction between principles and policies
Dworkin distinguishes principles and policies. A ‘policy’, according to him, is a standard which formulates a goal to be attained, mostly, in the form of an improvement in some economic, political, or social factor. These goals may be negative as well, in the sense that they seek to protect some factors from adverse changes. However, ‘principles’, on the other hand, are standards that are to be complied with because it is a requirement of justice or some other aspect of morality to do so.
Dworkin and the distinction between rules and principles
To critique Hart’s model, Dworkin distinguishes principles from rules. For that purpose, he uses the case of Riggs v. Palmer, wherein a murderer claimed that he was entitled to inherit the property of his victim, his grandfather. The rules governing testamentary succession did not deal with such facts. However, the court went ahead to say that rules were subject to the fundamental maxims in common law like ‘no man can benefit from his own wrong’, hence the court did not grant the murderer the right to his grandfather’s property.
Dworkin provides another case of Henningsen v. Bloomfield Motors, wherein the Court was faced with the question, whether an automobile manufacturer can limit his liability in case the automobile is found defective? The court observed that Henningson should be made good for his medical expenses by the manufacturer because it is the requirement of consumer and public interest, even if the statute did not say anything about this situation.
Dworkin argues that in both cases, the courts relied on principles instead of rules to decide the disputes. He argues, that there is a logical distinction between rules and principles, which can be made out as follows:
- Rules are applied in all or nothing fashion, in the sense that, a rule comes with a mandate that the case must be decided in accordance with it, any deviation is not possible, however, a principle may not necessarily impact the conclusion of a case.
- Valid rules cannot come into conflict with each other. If they conflict in a particular case then, they are not valid. Legal principles, however, may conflict but may not necessarily lose their persuasiveness.
- Accordingly, in case of conflict between principles, a judge weighs their legitimacy as to the situation, this means that ‘principles’ have a dimension of their relative weightage in a situation, which in case of rules, is not possible.
- The rules can either be valid or invalid. In case of conflict between two rules, either the conflict is settled by the use of some other rules or by use of some other important principles. But ultimately, rules are characterized conclusively as valid or invalid.
Following this distinction, Dworkin draws two major arguments against Legal Positivism, firstly, that it ignores the impact of principles in decisions of even those cases where rules are clear. Secondly, it exaggerates the role of judicial discretion in cases in which the rules are not clear.
Dworkin also argues that the positivist doctrine of judicial discretion is that if a case is not within the purview of an established rule, the judge must exercise his discretion only in the light of the sources of rules as specified by rule of recognition, is not tenable since judges do decide cases while relying on moral or social policy considerations. Thus, where the express law is not an answer, the judge must step outside the law. This is to say that, in cases, where a rule cannot mechanically apply, a judge is not necessarily bound to reach a certain conclusion in light of principles.
Dworkin and the types of disagreements
Dworkin, in his later work, Law’s Empire, distinguishes two kinds of disagreements legal practitioners can have as to a law, firstly, the empirical disagreement, which means that in certain cases, although the lawyers can agree that a criterion granting legitimacy to a rule is legally valid, there may arise a contention as to the rule’s satisfying the criteria. For instance, two lawyers may agree that the Supreme Court’s decision is binding on subordinate courts, but they contend that the legal question involved in the case was explicitly dealt with by the Supreme Court. Such disagreements are empirical, thus there’s no difficulty for positivism.
However, secondly, he observes the theoretical disagreements, which means that in certain circumstances, the lawyers may agree as to the fact of rule’s creation, but disagree whether those facts are sufficient to give the rule the status of legal authority. For instance, the cases involving the constitutionality of the legislation passed by the Parliament. There’s no contention as to its legitimate creation but there’s contention as to its moral and policy considerations. Thus, these kinds of theoretical disagreements pose a challenge to Legal Positivism as they concern the criteria of legal validity itself, which according to Hart’s Legal Positivism, is restricted to rule of recognition.
Dworkin on ‘all law is enacted law’
Another criticism provided by Dworkin to Hart’s model of Legal Positivism says that Hart purports that all law is a product of deliberation by people, and such laws are aimed to change the community through the general obedience that follows the creation of such rule. Dworkin argues that Hart has ignored the idea that legal rights may exist even in the absence of any explicit legislation.
Dworkin and the social rule theory
Dworkin observes that Hart’s theory maintains that every duty, including a judge’s duty to apply the law, presupposes the existence of social rules that legitimizes those duties. He says, according to Hart, those social rules come into existence because of some practice-conditions. When these practice-conditions are met by a certain kind of behaviour from the people in certain situations it forms a social rule, and thus imposes a duty. For instance, he says, members of a group of churchgoers remove their hats when they enter the church when someone asks why they do so?
The answer comes that this is ‘the rule’ that requires them to do so, in case someone deviates from such rules, then he has to face criticism and punishment. For Hart, Dworkin says, this example means that the group ‘has’ the ‘social rule’ that needs to be followed. Dworkin here contends that the so-called social rule theory is refutable. He contends that sometimes a normative rule, based on the existence of a certain normative state of affairs can also lead to the duties of an individual. This cannot be done by a social rule that only accounts for a certain factual state of affairs.
Conclusion
In order to conclude, it can be said that Dworkin presents some very strong arguments against Legal Positivism, however, at the same time, we cannot undermine this approach to the study of law, since every school of thought in this respect provides us with an opportunity to reflect and gain a critical perspective in the study of law. Secondly, this article explores a limited area of criticisms to Legal Positivism by Dworkin, however, the philosophy of law is in constant transition, meaning there have been many arguments against Dworkin’s idea as well, therefore, it is relevant to mention that the study of law is in constant flux, thus, we cannot undermine the importance of any critical perspective on the subject of law.
References
- www.jstor.org/stable/2252990
- https://b-ok.asia/book/551232/7ab6bd
- https://global.oup.com/ushe/product/the-philosophy-of-law-9780198750222
- https://www.ebc-india.com/lawyer/articles/2002v8a2.htm
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