Why Human Rights ground 'the Rule of Law' and why without them, there is no law at all.

Preamble

‘How can law be understood in isolation from politics and social values when so much of it is a matter of judicial interpretation (of legislation, constitutional provisions, or the earlier judge made law and of interpreting what judges say?) Surely law in this sense is a moral or political practice of some kind, not just a set of distinctive concepts to analyse?’

This paper is a critical evaluation of the theoretical positions held by Natural Law theorist Ronald Dworkin (1931-2013).

Introduction

It is important to begin this examination and discussion about the ideas and contributions of Ronald Dworkin by stating what is a fairly basic, but often overlooked fact; that law does not exist, in and of itself. Even what we call ‘laws of Nature’ are simply names we have put on empirical observations. Law today, in its purest form, is the designation of written, unwritten, customary practices and interactions between humans (in society) that they have judged to be worthy of adherence. As Fuller (correctly) states with clarity:

“The necessity of human interaction is what gives purpose to law, and the principle of reciprocity is a major foundation of social interaction and social institutions”[1]

Dworkin was one of the most articulate and systematic opponents of ‘analytical positivism’ whose views are described as follows in the Stanford Encyclopaedia:

“Dworkin, as positivism's most significant critic, rejects the positivist theory on every conceivable level. Dworkin denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its moral merits, and he rejects the whole institutional focus of positivism. A theory of law is for Dworkin a theory of how cases ought to be decided and it begins, not with an account of the political organization of a legal system, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects.[2]

This paper will seek to open up some of the contentions held between the different ‘camps’ using Roger Cotterell’s ‘Politics of Jurisprudence’ and his observations about developments in Legal theory. I will posit that each respective theory is a product of its time and unlike other ‘scientific theories’ one (thesis) does not (necessarily) displace the earlier, rather they all seem to build upon one another. Therefore law is not as much a ‘science’, as it is an ‘art’. The work of the early Utilitarians including Locke, Bentham and Austin need to be appreciated in something of an exegetical form seeking to understand most importantly, the contexts in which they were writing. Let’s not forget it was Bentham who postulated that ‘rights’ of private ‘property’ were a matter of law:

“Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases”[3]

Strangely, none of the earlier thinkers (Bentham, Austin, Kelsen etc) actually postulate very much at all about real issues of ‘Justice, Equity or fairness’ within established legal systems. They all reduce most of these considerations (what I call, priorities) to political or policy questions. This I will also posit is a major flaw in all of the reasoning on the subject of law as ‘authority’ in my view. One need look no further than the modern example of the Nazism of the totalitarian German State as a clear example of why law cannot be devoid of morality, not internally nor externally. It is an issue I will address in some detail throughout this paper drawing on the ‘ancient wisdom’ catalogued with utter precision by Aristotle explaining the importance of the ‘Art of Rhetoric’. His whole enquiry is one based on the ‘morality’ of laws (of the Greek Polis of his day).

If law is about controlling the behaviours of people (and I suggest it is) I will also incorporate some useful sociological observations by American political scientist, political economist, and author Francis Fukayama.

Law, Dworkin and the ‘Social Imperatives’

Cotterell states that Dworkin was following the significant insights expressed by Nathan Roscoe Pound[4] who observed that laws cannot simply be ‘static’ and applied by a judiciary bound by the dictates of statutory design. Like many before him, Pound was building on Social Contract theories first articulated by such great thinkers as Hobbes, Locke, Rousseau and others and his contribution to sociological jurisprudence should not be understated.[5]

Law is seen as Integrity represented by Community[6] for Dworkin, and ‘Rights’ play a foundational consideration in determining cases, particularly hard ones, ones in which the written ‘rules’ do not provide direct and ‘easy’ answers.

The oldest written law in the world that we know of, is that of the Code of Hammurabi. The Code is a well-preserved Babylonian law code of ancient Mesopotamia, dating to about 1754 BC. The code consists of 282 laws, with scaled punishments, adjusting "an eye for an eye, a tooth for a tooth" (lex talionis or retributive justice)[7] graded depending on social status, of slave versus free man.[8] This was a societal law enacted by the sovereign of the day for which it would seem, the society did acquiesce. This law found its genesis in the necessity of societal norms and not within any religious paradigm. This I think is significant.

Accepting that there is an underlying social dimension to law, Francis Fukayama’s seminal study in sociology correctly states, Aristotle differed from Hobbes, Locke and Rousseau in one critical respect. He argued that human beings are political by nature and that their natural capacities incline them to flourish in society. The three early modern philosophers by contrast argued that human beings are not naturally social but that society is a kind of ‘artifice’ that allows people to achieve what they cannot get on their own.

Unlike the Classical common law and analytical positivist formulations for valid laws, Dworkin’s breaks new ground to claim that law cannot be devoid of morality.Austin and Bentham before him only sought to undermine the commentaries of Blackstone who ‘mixed’ morality and law with the existence of God.[9] Cotterell says that Bentham, Austin, Hart, Kelsen and others were seeking to produce an objective and ‘scientific’ analysis of law as a ‘human creation’. They were seeking to make the enquiry about the ‘nature of law, from enquiries into its moral worth’. Natural Law theorists of which Dworkin is a major contributor have built erudite argument for why law’s nature and existence cannot be isolated from questions about its moral worth.[10]

Chief concern for both legal positivists, and natural law theorists, is with the nature of legal authority, with identifying its sources, and its limits.[11]

Natural Law

Natural Law is said to derive from human nature, that is; the natural conditions of existence of humanity, the natural order of the universe, or the Eternal law of God.[12] For Natural law theorists morality is intrinsic to the law and is the source of its binding power or validity. As Cotterell succinctly states:

“Natural Law thus, requires no human legislator. Yet it stands in judgment on the law created by human legislators”[13]

Thomas Aquinas was first to posit that natural law was part of God’s eternal laws that can be grasped by humankind’s unaided reason. The foundation of a proper functioning legal system for Aquinas, was the ‘common good’ of society as a whole, although he did also state that even unjust laws should be obeyed save for the unrest disobedience would cause. Aquinas himself was simply picking up on the central notions of validity of laws being ‘rooted’ in the ‘common good’ which were first posited by Aristotle some 1000 years before him. The common legal maxim of ‘Lex iniqua lex non est’ (Latin: An unjust law is no law at all) was first posited by Augustine and re-iterated by Aquinas and forms the societal litmus test (in my view).

Natural and legal rights are two different types of rights. Legal rights are those bestowed onto a person by a given legal system (i.e., rights that can be modified, repealed, and restrained by human laws). Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and therefore universal and inalienable (i.e., rights that cannot be repealed or restrained by human laws).

The concept of natural law is closely related to the concept of natural rights. During the Enlightenment, the concept of natural laws was used to challenge the divine right of kings, and became an alternative justification for the establishment of a social contract, positive law, and government – and thus legal rights – in the form of classical republicanism. Conversely, the concept of natural rights is sometimes used by others to challenge the legitimacy of all such establishments.

Much of the U.S. Constitution was framed around ‘natural rights’ that are taken to be ‘self-evident’ because they are founded in the nature of humankind or of human society, including but not limited to life, liberty and the pursuit of happiness. It is no coincidence that Dworkin was an American Legal academic seeking to find a way for these ideals to be embodied in the North American legal system, unfortunately the same cannot be said of Australia where statute has substantially altered the common law ‘bedrock’ of the presumption of innocence in favour of ‘strict’ and ‘absolute liability’ provisions found in (not least) all (current) Criminal codes .

Common Law

The Common Law seeks to portray itself as being some sort of ‘repository’ of great wisdom emanating from the struggles for ‘power’ in the story of England and Great Brittan. It is considered the part of English law that is derived from custom and judicial precedent rather than statutes. It assumes authority by the fact that, it saw law as rooted in immemorial custom, community life, transcendent reason or an accumulation of ancient wisdom greater than any individual.[14] According to Cotterell Common Law thought is: Passive, responsive and evolutionary not purposive, innovative and creative, denying Judges made law.[15]

The ‘ancient wisdom’ portion is a combination of Roman legal maxims and ancient Greek City State laws and customs. In fact I will posit that most of (the current) English Jurisprudential System is a carbon copy of Aristotelean legal systems recorded by him with precision identifying the legal concepts of Contracts, Torts, Negligence and voluntary and involuntary acts in criminal law.[16]

The Purpose of Law(s) for Dworkin

Dworkin posits that ‘law is integrity’ in both legislation and adjudication and that it holds an inherent political value. He also argues that integrity is valuable in and of itself. He supports this argument (validly, in my view) by implying that it is a deeply held intuition that we will reject legal practices that reject integrity and it is a notion fully mirroring the concept of the ‘common good’ postulated by Aristotle and Aquinas. This argument has traction and immense importance in the Nazi experience and what can occur when laws become devoid of morality ending in tyranny rule by majority.

Dworkin postulates that according to positivist analytical jurists, judges in hard cases cannot apply law to reach their decisions but necessarily exercise discretion. He correctly sees since the authority for this exercise of discretion cannot easily be explained in legal terms, the judge as legislator is a highly problematic figure unless seen in Austinian terms as the delegate of a sovereign electorate. Such a judge must, in a democracy, defer always to the Democratic will as expressed in legislation. Consequently, judges tendencies will always be to favour the majority will, so expressed. For Dworkin they will lack the authority to protect minorities through the exercise of creative discretion against the majority.[17]

Like many other Natural Law writers Dworkin (correctly) sees a central task of law as to prevent, not aid, the tyranny of the majority.[18]

Dworkin’s ideas on the place of principles in law are unique and plausible ...

“it is important to note that once the task of the judge has been defined as to enforce 'rights and obligations whose present power is independent of the majority will'”.

Judges are for Dworkin (and contrary to the positivists analytical jurists view) in no sense legislators.[19]

Citing an important North American decision Dworkin identifies the applicable legal rule appears to be that legacies contained in legally valid testamentary dispositions (wills) are to be guaranteed by law in accordance with the wishes of the testator, yet the court in Riggs v Palmer[20] consciously decided not to apply the rule and did so by relying on a general principle, ‘that a wrongdoer should not be allowed to profit from his own wrong’. For Dworkin it is not judicial discretion which operates to defeat the ordinary rule as to wills, but “an interpretation of the rule in light of a governing principle".[21]

For Dworkin the judge’s task is undoubtedly creative. Yet it is not legislative. Properly understood, the judicial role is not the dynamic one of making law like a legislator, nor is it the purely passive one of ‘finding law’. The job of the judge is to make the law the best that it can be through creative interpretation of existing legal resources. But according to Dworkin no non-legal materials are to be used in doing this. Thus, as Cotterell says: Dworkin is able to make the claim which has long puzzled many of his critics that, existing law provides an answer for every hard case (although judges and lawyers may argue interminably as to what that answer is).[22]

So while the law that Dworkinian judges are required creatively to apply will have been influenced by policy matters, for Dworkin policy should not shape their legal judgements in the way that principles - the expression of the community's moral and political values reflected in law - must. This is a highly important nuance.

For Dworkin principles control the interpretation of the rules and in a specific sense, no law is imposed on the judge. All law that comes out of judges decisions is the results of their creative interpretation, weather of legislation, prior case law or ultimate constitutional provisions (such as in the written Constitutions of the United States and Australia).[23]

Dworkin says that a judge must tell the best story, or construct the best legal meaning, from the work of previous contributors to legal doctrine. In adding his own contribution (the new decision in the case before him) he is constrained by the need for 'fit' with existing legal materials. Some interpretations that he might as a matter of personal preference like to adopt and act on, are ruled out because they would not be consistent with the need to portray law as an integrated, principled whole.

Therefore, all participants in legal interpretation, according to Dworkin, are concerned also with what law ought to be. They cannot be described as of some objectively existing datum of law as would the positivists argue. They must be full participants in the discourse of legal argument of the particular legal system with which they are concerned.[24]

Dworkin writes extensively about community as the basis of law and about how it can be conceptualized.[25] But Cotterell claims, yet within the terms of his legal theory, he can offer no analysis of the sociological conditions under which a community can exist, or of the meaning of the concept of community as a characterization of empirically observable patterns of social life, or of the historically specific political and social circumstances in which it is useful to think of law as expressing community values. This is where the work of Fukayama comes seriously into play. Although it is Cotterell that makes this observation, it should not be dismissed (in my view) as a central consideration in the authority or legality of law. In finding myself in total agreement with Dworkin’s proposition on the importance of ‘community’ it is important to note that from the time of the inception of the common law, land tenure and the doctrine of reciprocity are what gave impetus to the development of the common law into the body of stare decisis and what should be enforced as ‘common among all’.

Dworkin rejects as 'extravagant' Fish's view[26] that "Interpretation constitutes what is interpreted" in someway the historical legal record must be the foundation of legal interpretation not the other way around. Therefore Dworkins relies on the requirement to fit. Legal interpretation must fit to the historical materials of the legal system, the body of existing constitutional provisions, statutes of precedence etc but as Cotterell rightfully identifies this begins to look like legal Positivism. Dworkin posits: that what constrain judicial interpretation is not historical legal materials in some objective sense but the judges convictions about 'fit' - again a matter of interpretation.[27]

Following Dworkin's reasoning suggests that this depends on the complexity and structure of the individual judge’s pertinent opinions as a whole. So Cotterell says ‘we are thus pushed into a realm of speculation about judges personal philosophies in which realistic examination for legal participants (no less than for sociological observers) of the nature and effects of general constraints on judicial interpretation become impossible’.[28] The reason lies with Dworkin's refusal to abandon his vision of a self-contained arena of legal philosophical discourse that preserves intact a watertight separation of internal "legal insiders" and "external" (sociological) perspectives.

Conclusion

In as much as the Legal Positivists would seek to deny the ‘rule of law’ any moral basis for the passing, obeying or content of laws, they are wrong. As stated in the introduction, laws do not exist in and of themselves. If they did, then they could be the subject of a purely ‘scientific’ enquiry. Cotterell does well to identify that the State has and does “deliberately use … law as a steering mechanism in society… designed for social order.”[29]

After unpacking all of the pro’s and con’s from the analytical positivists Cotterell says:

“after all, legal positivism does not deny that the substance of law can be subject to moral criticism. The issue is not whether law can be morally evaluated, but whether its essential character must be explained in moral terms”[30]

Francis Fukayama’s seminal work on the sociological developments of humans devotes a whole section to the Rule of Law and it exacts some startling evidence about human development and interaction from an anthropological perspective. Accepting Darwinian hypothesis that humans are biologically inclined to ‘altruism’ and contrary to many widely held notions of humans now being ‘individualistic’ he cites the experience of nations of people's within Melanesia, the Wantok’s of Papua New Guinea in particular. Indigenous people who have had little or no influencing of their society by Western thought...

"The big man must constantly be looking over his shoulder, because a competitor for authority may be coming up behind him. Without resources to distribute, he loses his status as 'leader'"[31]

Fukayama goes on to identify that by contrast the American system was built around the firm conviction that concentrated political power constituted an imminent danger to the lives and liberty of citizens. For this reason, the U.S. constitution was designed with a broad range of checks and balances by which different parts of the government "could prevent” other parts from exercising tyrannical control.[32]

Fukuyama contends that modern liberal democracy and governance incorporates the State, the rule of law, and accountable government in a 'stable balance'[33] and that the rule of law is constantly threatened by the need to generate political power: “from seventeenth-century English Monarchs who wanted to raise revenues without going through Parliament to Latin American governments in the twentieth century fighting terrorism with 'extralegal' death squads.”[34]

As the political scientist Barry Weingast has noted, a State strong enough to enforce property rights can also take them away. The foundations of reciprocity dictate that:

"If general legal rules are not enforced in the cases of the powerful elites, or against the most powerful actor of all, the government, then there can be no ultimate certainty about the security of either private property or trade."[35]

Anglo-American Jurisprudence owes a great debt to Ronald Dworkin for recapturing the centrality of ‘morals’ underpinning all valid laws. He was of course building on the solid foundations established by the Ancient Greeks through to the Romans, the English Common Law system and the societies who embrace them all.

It falls on all experienced legal practitioners to ensure Justice, Equity and fairness are not relegated to non-questions and the first line of enquiry should always

be; what are the ‘Rights’ that are being violated, and is it a law within it’s, (the Government’s or whoever’s) power? In order to avoid totalitarian tyranny such practitioners should constantly be at the vanguard of:

PROTECTING THOSE FUNDAMENTAL ‘RIGHTS’

IN THE INTEREST(S) OF THE COMMON GOOD.

Bibliography

1. Allan, T. R. S. (1988). "Review: Dworkin and Dicey: The Rule of Law as Integrity". Oxford Journal of Legal Studies. 8 (2): 266–277

2. Aristotle, The Art of Rhetoric, Translated by H.C. Lawson-Tancred, England: Penguin Books, 2004.

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

4. Blackstone, William, Commentaries on the Law of England, Chicago: The University of Chicago Press, 1979.

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

6. Bentham, Jeremy, ‘Principles of the Civil Code in The Works of Jeremy Bentham, Published under the supervision of His Executor John Bowring (1843) vol 1 ch VIII ‘Of Property’ 309a.

7. Cotterell, Roger, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd edition, London: LexisNexis, 2003.

8. Dworkin, Ronald, Law's Empire, Cambridge, MA: Harvard University Press. 1986

9. Dworkin, Ronald, Philosophy and the Critique of Law in R.P. Wolff (ed) The Rule of Law, New York: Simon and Schuster, 1971.

10. Dworkin, Ronald, “Natural Law” Revisited’ 34 University of Florida Law Review 165-188

11. Dworkin, Ronald, A Matter of Principle, Cambridge, Mass: Harvard University Press, 1985.

12. Fukuyama, Francis, The Origins of Political Order, From Prehuman times to the French Revolution. New York: Farrar, Straus & Giroux, 2011.

13. Fish, S, Working on the Chain Gang: Interpretation in Law and literature, 60 Texas Law Review 551-567

14. Gabriele Bartz, Eberhard König, (Arts and Architecture), Könemann, Köln, (2005).

15. Legal Positivism (Stanford Encyclopaedia of Philosophy). plato.stanford.edu

16. Mill, John Stuart, 1863, Austin on Jurisprudence, Edinburgh Review, 118 (October): 439–82 [U.S. edition, 118: 222–244].

17. Social Engineering, Theory Of Roscoe Pound Free Essays 1 – 20". StudyMode.com.

18. Prince, J. Dyneley (July 1904). "Review: The Code of Hammurabi". The American Journal of Theology. The University of Chicago Press. 8 (3): 601–609.

19. Weingast, Barry, The Economic Role of Political Institutions: Markets-Preserving Federalism and Economic Development, Journal of law, Economics, and Organization 11 (1995):1-31