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


Carl said...

Why do you consider a view on which judges are instructed to decide hard cases in accordance with the spirit of the law (or however Dworkin characterizes it) as inherently more activist than a view on which judges are given free to decide hard cases however they see fit? Is the discretion positivists grant judges in these cases tempered with a corresponding duty to exercise that discretion conservatively? If so, is that not just the type of normative consideration that positivists wish to excise from their account of the law?

Michael C. Dorf said...

Nice question Carl. As I said, positivism is (or aims to be) a descriptive view of law, and so one can be a positivist---and thus think that judges in hard cases exercise discretion---without taking any particular view about how they SHOULD exercise that discretion. However, if one thinks (as positivists do) that judges in hard cases exercise discretion rather than are guided by law (as Dworkin thinks), then one is also more likely to be skeptical of the exercise of judicial power than a Dworkinian is. You are right that this normative view---i.e., the one says that judges should exercise their discretion so as to minimize occasions for judicial lawmaking---is not part of positivism. My claim is that people who are positivists are more likely to hold it than people who aren't positivists.

Ori H. said...

Positioning Dworkin’s approach against Positivism entails a comparison between two competing theories about the nature of law.

For judges who wish to exercise wide interpretive discretion the main attraction of Dworkin’s approach to the nature of law is that it allows them to create new law under the cloak of “mere interpretation”. It is a theory of the nature of law that makes for good political cover. In this respect, it is more appealing to judges than positivism. This being said, I do not see why Dworkin’s theory of law is uniquely appealing to judges who are seeking guidance as to how to treat hard cases. It seems to me that this last issue turns on a theory of judicial legislation/interpretation and not on this or that theory of law.

There is a distinction to be drawn between a theory of interpretation and a theory of the nature of law. Dworkin’s theory is a theory of the nature of law that includes an interpretive approach as a way to handle hard cases. Positivism, in and of itself, is “only” a theory about the nature of law. It does not come with a theory of interpretation or with a built in scheme of how to deal with hard cases. This does not mean that positivism cannot be tailor with such theories that will be just as good as Dworkin’s interpretive approach and will offer just as much, and maybe more, guidance as to how to handle such cases.

For example, when a judge reaches a point in which there is no one correct legal answer or interpretation she must choose the solution that is the most moral or just. In doing so, she creates the best law she could have under the circumstances where there was once ambiguity or a lacuna. This description is compatible with positivism. Now, if you give a nice theory of policy etc, which many have, you can come up with a nice theory for judges on how to fill in the holes in the law or in Hart’s terms how to continue filling in the “open texture” of the law. We can do all this without Dworkin's interpretive conception of the nature of law.

Dworkin would claim that all the judge really did was interpret the law according to morality, rather than create the law according to morality. But aside for this difference the outcome and processes the judge would go through would be quite similar under both approaches. So in terms of guidance for judges I do not think Dworkin’s theory of interpretation offers anything that positivism cannot allow. Perhaps Dworkin’s interpretive approach is appealing, but it can be severed from his theory of law and with several alterations made compatible with positivism.

The only difference in terms of which theory is more suitable for judges, in my eyes, is that Dworkin’s theory of the nature of law is suited for the wily judge and positivism is more suitable for the honest judge.

Paul said...

Of course, the only way you can reach your final descriptors is if you start from a position that law - or at least proper law - is created only by the legislative process. That is you have already concluded that nature and morality are not legitimate sources of law.

Once that is accepted, the rest of your presentation is mere tautology.

** said...

The law pretends to be democratic but in fact entails considerable judicial over-reaching -- sounds Dworkinian to me!!

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