Coursework

No account of law can succeed if it cannot explain the nature of authority

Dworkin’s account of law is in many ways a departure from much of legal theory. He rejects the more concrete theories of legal authority articulated by many of his colleagues in favour of an interpretative conceptualisation which many argue does not engage with the central questions with which other thinkers concern themselves one of which being the identification of that element or origin of law which gives it coercive authority.

This essay will seek to consider the truth of this, and whether such a lacuna would make Dworkin’s theories ‘a failure’. If not, what implications does this have for legal theory as a discipline?

Ronald Dworkin’s conception of legal theory rests on a rejection of the ‘Model of Rules’ put forward by Hart in particular. He considers Hart’s conception, where judges apply relevant rules where possible and create new rules where none apply, to be undemocratic and unethical in its effective retroactivity. In his view, judges cannot therefore make law, but are instead identifying the one correct answer that exists to any legal problem (the ‘Right Answer Thesis’). He has since resiled from this view and now argues that quality of judges’ decision-making itself, not its nature or technical function, should be the focus of consideration. He also identifies principles, requirements of justice or fairness which may ‘weight’ decision-making one way or another; policies, social goals to be borne in mind; and rights, which trump principles and policies and are determined by society’s conception of the good life. Judges should make decisions based on a creed of ‘integrity in adjudication’, which requires them to find ‘in some coherent set of principles the best constructive interpretation of the political structure and legal doctrine of their community’. The collective impetus toward this integrity should self-regulate against idiosyncratic judgements and maintain the coherence of the legal system as a whole.

We are asked to consider whether any account of law can be successful without providing an answer as to the nature and origin of the authority on which it rests its ability to restrict the freedoms of the citizens of its community. Comparing Dworkin’s theories with others, such as Kelsen, to take an extreme example it is clear that his focus is very different. Whereas Kelsen seeks to establish that a ‘hierarchy of norms’ leading to a ‘Grundnorm’ provides the foundation of legal authority, and Hart argues for a system of social recognition of rules in the Hobbesian tradition, Dworkin seeks to ground law’s authority in ideas of ‘justified coercion’ based on the conception of what is right and necessary stemming from the political values of the society. He rejects ‘value-free theorising of the kinds professedly set forth by Bentham, Austin, Kelsen and Hart.’

But does this mean that his account of law automatically fails? I would argue that this is not the case, for three reasons. Firstly, an account of law does not begin and end with its conception of the authority on which it is based. Although this is a valuable piece of the jigsaw, its absence cannot render Dworkin’s theory useless altogether it can still increase our understanding of other aspects of the law.

Secondly, Dworkin argues that legal theory often slips into the arcane, rendering it useless to practitioners. I am inclined to agree with Dworkin’s assertion that a more useful application of effort is into comprehending the operation of the law. Dworkin argues that his approach is more in tune with the realities of the practice of law, particularly by judges forced to use ideas of fairness and justice to help them make difficult decisions. He argues that concepts of law which excludes such factors cannot be helpful because they are patently unrealistic. Since resiling from his ‘Right Answer Thesis’ he has argued that much of legal theoretical argument is ‘a waste of important energy and resource’, and often get bogged down in semantic squabbles without providing clear answers to real questions, and that it is better to concentrate on how legal decisions should best be made, and considering and criticising their soundness.

And finally, I would argue that Dworkin does not leave us entirely without an origin for his conception of the law. He argues that judges must make decisions by identifying the ‘right answer’, within the law laid down by the government. This answer is that which will best ‘fit’ the demands of the situation and which fulfils principles, policies and rights to the greatest extent possible, giving due attention to the appropriate weight to be accorded to each consideration. All of these three categories are not delineated by Dworkin’s theory, which leaves them as a kind of empty vessel for the political values of the society. So judges are applying laws, created by a democratic legislature with a mandate from the citizens of the society, modulated by principles, policies and rights which are dependent on that society’s conception of the good life. I would argue that we can trace the authority for the ‘justified coercion’ Dworkin posits back to the people. The authority of Parliament, which makes law, derives from the collective will of the people, who are willing to suspend certain of their individual freedoms in the interests of a competent legal system which will protect them. So we see, finally, a conception of legal authority which draws together Kelsen’s Grundnorm, which arguably can be reduced in much the same way, and Rousseau’s ‘social contract’ theory.

I do not seek to suggest that the ideological differences which separate legal theorists can be so easily dismissed only to demonstrate that Dworkin’s theory arguably draws on the same source of authority as other theories the collective will of the people governed by that law, who have collectively instated the parliament which created it and whose values and morality should be in the minds of judges as they make their decisions. For all of these reasons, I do not think that Dworkin’s theory is a ‘failure’; rather, another idea to learn from.