Saturday, January 26, 2008

Nonsense on Stilts No Longer

If he had been buried rather than preserved as a relic for University College London, Jeremy Bentham might well be spinning in his grave over recent developments at his home institution and in UK law. Or so I conclude based on my ever-so-brief trip across the pond.

Bentham famously referred to natural rights (and viewed deontological theories of justice more broadly) as "nonsense on stilts." His views on law ran strongly towards the replacement of the common law with statutes enacted by legislatures pursuing the greatest good for the greatest number. And in a country with a tradition of parliamentary supremacy, Bentham's work cast a long shadow over English jurisprudence. In modern times, H.L.A. Hart, Joseph Raz, and other positivists may be seen as the heirs to the Benthamite view. Very broadly speaking, positivists believe it is possible to give a descriptive account of the law without making normative judgments.

Positivism's fiercest and most determined critic has been Ronald Dworkin, who, in his book Taking Rights Seriously and in other writings, has directly challenged Bentham's rights-skepticism. Law, Dworkin says, is an interpretive process. The job of a judge in a hard case is not simply to figure out what the legislature or other sovereign lawgiver has said (because what makes the case hard is precisely the fact that the lawgiver did not clearly address the circumstances presented), but to give an answer that best "fits" and "justifies" the law as a whole, where justification invokes notions of political morality. By contrast, positivists say that in hard cases, where the law is, in Hart's term, "open textured," the judge has discretion to reach a variety of answers. Although Hart himself did not insist on this point, many positivists draw the conclusion that accordingly, judges should exercise such discretion cautiously. Thus, a rough but generally fair characterization of jurisprudence over the last half century is to say that Dworkinians have been more supportive of "activist" judging than have positivists.

It's also fair to say that, until recently, Dworkin had greater influence in the United States than in the UK, where the Bentham/Hart view tended to be the orthodox one. Yet over the last decade or so, Dworkin has gained influence with the Law Lords. There are a number of possible causes of this phenomenon, but I'll point to two, both somewhat ironic.

First, Dworkin left Oxford for University College London about a decade ago (while continuing to split his time with NYU), and in that time has had more opportunities to meet with, and thus exert influence on, the Law Lords. Holding (of all things!) the Bentham Chair, Dworkin has also moved UCL much closer to his own views. Bentham is spinning indeed.

Second, in exactly the same year (1998) that Dworkin left Oxford for UCL, the UK Human Rights Act became effective. To interpret its open-ended provisions, the Law Lords naturally looked for a theory of interpretation that would provide guidance, and as positivism could only instruct them to exercise their discretion, Dworkin's coherentism was a natural place to turn.

Why is that second development ironic? Because the Human Rights Act---while formally preserving parliamentary supremacy---moves the Law Lords into a more counter-majoritarian role than they played when their job was simply to interpret statutes and make common law decisions, each of which could be superseded by a simple Act of Parliament. Under the Human Rights Act, the government is not formally obligated to implement a Law Lords declaration of incompatibility between ordinary legislation and the Human Rights Act, but the Act places great pressure on the government to do just that. Thus, during just the period when the cost to democratic values of "activist" judging have increased, the Law Lords have moved towards a more activist methodology.

Finally, I should note that I point out these ironies without in any way meaning to suggest that the increased influence of Dworkin's views is unwarranted on balance.

Posted by Mike Dorf