Mr. Sayak Banerjee
With the perplexity of law and legal obligation that has enticed almost every legal philosopher for decades; the demand to contexualize for the betterment of understanding and to keep the jurisprudential discussions flowing has become increasingly important. Our earlier blog posts have dealt with Prof. H.L.A Hart’s theory in great detail, for which even Prof. Ronald Dworkin, accedes by stating that, “almost everywhere else in legal philosophy, constructive though must start with a consideration of his views.”[i] Through this series of six blog posts, I would be explaining in great detail the Hart-Dworkin debate that is considered as one of the most revolutionary debates in analytical jurisprudence.
Prof. Hart in his theory relied on social facts. He observed that societal force behind rules is the primary reason that gives rise to obligations. It is for this reason that Prof. Hart, states that, “union of primary and secondary rules is at the centre of a legal system.”[ii] Interestingly, Prof. Dworkin uses the positivist model only to criticize it, as this model has an initial advantage over complete exclusion. Prof. Dworkin agrees when he says that the exclusion model to criticize Prof. Hart’s model that can be called positivist- “cannot properly inveighed in its own support.”[iii]
In this post, I would be explaining Prof. Dworkin’s jurisprudential theory in his seminal critique of Prof. Hart’s theory, The Model of Rules-I i.e. the A. Key principles of positivism; and, B. Looking beyond positivism or a rule-based system?
A. Key principles of positivism
To put it in context, Prof. Dworkin has identified three basic tenets of positivism, so as to set ground for his take on Prof. Hart’s theory, which are as follows:
1. Test of pedigree-institutional source
Community has a set of special rules that is used only for the purpose of regulating behaviour. These special rules are not identified based on their content but with the pedigree or manner, or meta-creation, in which they have been introduced. The test of pedigree can be used to differentiate the validity of legal rules from the invalid ones. These special rules also differentiate from social rules or moral rules, that the community follows but cannot enforce through public power.
2. Judges Exercise Discretion
These special rules comprehensively incorporates the law, so that if somewhere a situation or case cannot be fit in then the case or situation cannot be decided by applying the law. Therefore, discretion needs to be exercised by the judge, with the help of setting out standards beyond the comprehension of law, so as to be guided in deciding a new legal rule.
3. There can be no legal obligation in absence of valid legal rule
When a case covers a valid legal rule, then he has the right to do something or forbear to do something. This creates an actual or hypothetical legal obligation on others to act in accordance as well. However, in absence of a valid legal rule, there is no legal obligation on the part of the person. So, in that case of absence of a valid legal rule, when the judge exercises discretion, then there is no enforcement of legal obligation.
Now, Prof. Dworkin, has already accepted not to acknowledge Austin’s model by stating that “an analysis of our concept of law either acknowledge and explain our attitudes, or show why they are mistaken.”[iv] But he has now argued with the help of a model that he characterizes as the central notion of assessing standards that are beyond rules.
B. Looking Beyond Positivism or a Rule Based System?
At the outset, I would like to clarify that as per Prof. Dworkin’s viewpoint, the key tools that help him arrive at his three key tenets, are rules, principles, and policies. Beyond, rules he thereby identified principles and policies. In his assessment, the major part of his critique of Hart’s theory is contributed through principles. However, it is important to introduce the ambit of principles and policies. To briefly put, Prof. Dworkin defines policy as a standard that sets out an improved target, be it economically, politically or socially. Principles, as per him, are the standards that include not only the policy-based targets, but also the requirement to achieve justice or fairness, or a degree of morality. He goes on to distinguish rules and principles in a clear and lucid manner with the help of two famous cases, one is Riggs v. Palmer[v] and the other is Henningsen v. Bloomfield Motors, Inc.[vi] The main contention in Riggs v. Palmer[vii] was, whether an heir inherit the will of his grandfather, even if he had murdered his grandfather to do so. The court came to the conclusion that all laws as well as all contracts are guided by common law principles. Therefore, Court came to the conclusion that no one shall be permitted to take advantage of his own wrong. It is based on the maxim of commodum ex injuria sua nemo habere debet.[viii] This is what Prof. Dworkin considers as a legal principle rather than legal rule. In Henningsen v. Bloomfield Motors, Inc.,[ix] the main contention was whether an automobile manufacturer can limit his liability if the automobile is defective. In this case, Hennigsen bought a car and signed a contract that stated the manufacturer’s liability was limited to “making good” the defective parts. For which, Henningsen took this matter before the Court, and argued that the contract needed to include medical insurance as a protection in case the car crashes, and not this stipulation. The Court, agreeing with Henningsen, stated that freedom of competent parties to contract is a paramount legal principle. The Court also observed the requirement to churn out principles that would specifically set precedence in these situations than using the principle of Courts being the harbingers of justice would prevent inequities and injustice.
Prof. Dworkin goes on to differentiate between legal principle and legal rule from a logical standpoint, by pointing that the basis of difference is on their characterization. To which, he states that rules are applicable in what he calls, “an all-or-nothing fashion.”[x] He uses the example of a will that requires the signature of three witnesses for it to be valid. If the will is signed by two witnesses, it would be outright invalid. However, Prof. Dworkin does say that if there are exceptions to this rule, then it is required to be listed. While explaining legal principles, Prof. Dworkin, has denied considering counter-instances, like adverse possession in case of Riggs v. Palmer,[xi] as extension of principles. The argument he puts is that it would create conflicting principles, wherein the principle of the legal system, so desired would lose its relevance.
Another difference that Prof. Dworkin points out is that principles have a dimension. This is to say that when there would be conflicting principles; the conflict must be resolved taking into consideration both their weights of importance. Yet, he claims this to be not a full-proof method to assess the importance, yet he does not discard it. Rules, on the other hand, do not have this dimension of weight. But the rules are to be assessed from the perspective of their functional importance. So for example, in the unorganized sector, the rule of earning a minimum wage would be more important than the rule of working hours. The characterizing basis, in this regard is the purpose with which behaviour is regulated. In case of conflict, weight of importance, however, cannot be attached. As per Prof. Dworkin, the conflict must be resolved by considerations beyond rules. Therefore, he suggests that it should be resolved in a legal system, by a different enactment of rule preferably by a higher authority, or the rule enacted later, or a rule that is more specific than the other, or preferred by more weighty principles.
Prof. Dworkin, while elucidating the differences between rules and principles, has also pointed out the contextual similarities. He states that, “a rule and a principle can play much the same role and the difference between them is almost a matter of form alone.”[xii] He uses the example of First Amendment to the United States Constitution, to point out the provision containing preclusion of making laws curtailing freedom of speech, by making it unconstitutional. The proponents who claim this provision to be absolute would take it as a rule. On the other hand, there are proponents, who interpret this provision as principle to state that when an abridgement of speech is discovered, it would be unconstitutional unless the context otherwise provide other principles or policies that are weighty enough to permit the curtailment. This is what these proponents call the “clear and present danger” test or “balancing”.[xiii] To explain the similarity further, Prof. Dworkin uses the example of the first section of the Sherman Act, which states that the every contract restraining trade shall be void. Supreme Court was tasked with deciding whether the provision needs to be treated as a rule to strike down any contract that restrains trade or as a principle that it should be used a reason to strike down contract when there is lack of any other effective weightier principles or contrary policies. However, Supreme Court construed the provision as a rule by prohibiting only unreasonable restraints of trade.[xiv]
Prof. Dworkin, stated that it “allowed the provision to function logically as a rule (whenever a court finds that the restraint is “unreasonable” it is bound to hold the contract invalid) and substantially as a principle (a court must take into account a variety of other principles and policies in determining whether a particular restraint in particular economic circumstances is “unreasonable”).”[xv] In these situations where harmonization of rules and principles are done, Prof. Dworkin has still clarified that rules would not essentially turn into a principle. To expound upon, he considers a scenario where considerations of principles are undertaken to suggest that a contract needs to be enforced even though the restraint is unreasonable. In such a case, going strictly by rules, enforcement of such contracts would not be allowed. Then, he suggests an arguendo, whereby if the unreasonable contracts were to considered as one of the element in determining a principle that ought not to ensure unfair contracts be allowed, can still be enforced without the alteration of law.
This is the first article in series of 6 articles dealing with the Hart-Dworkin debate. In the next article, the author will discuss Prof. Dworkin’s concept of “discretion”.
[i] Ronald M. Dworkin, The Model of Rules, 17 Univ. of Chicago L. Rev 35, 1, (1967), https://chicagounbound.uchicago.edu/uclrev/vol35/iss1/3
[ii] HLA Hart, The Concept of Law, Oxford University Press, 99.
[iii] Ronald M. Dworkin, Taking Rights Seriously, Harvard University Press, 36.
[iv]Supra note 1 at 19.
[v]Riggs v. Palmer 115 N.Y.506, 22 188 (1889).
[vi]Henningsen v. Bloomfield Motors, Inc. 32 N.J. 358, 161 A.2d 69 (1960).
[vii]Supra note 3.
[viii]Broom’s Legal Maxims, 10th Ed., p.191.
[ix]Supra note 4.
[x]Supra note 1 at 25.
[xi]Supra note 3.
[xii] Supra note 1 at 28.
[xiii] Supra note 1 at 28.
[xiv] Standard Oil v. United States, 221 U.S. 1, 60 (1911); United States v. American Tobacco Co., 221 U.S. 106, 180 (1911).
[xv] Supra note 1 at 28.
Mr. Sayak Banerjee is a 3rd Year Student at National Law University, Jodhpur.