We welcome this guest post from Dr. Tom Hickey a lecturer in the School of Law at NUI Galway.  In this guest post Dr. Hickey reflects on the work of Ronald Dworkin.  Dr. Hickey lectures in the areas of constitutional law, jurisprudence and administrative law at NUI Galway.

The passing last week of Ronald Dworkin, Professor of Law at New York University and Professor of Jurisprudence at University College London, will have struck a chord with many in the academic human rights community. With contributions such as Taking Rights Seriously (1977), Law’s Empire (1986) and Sovereign Virtue: The Theory and Practice of Equality (1996), Dworkin stands amongst the most influential legal philosophers of the past few centuries. The scope of his work is considerable, but his most enduring legacy is likely to be his theory of adjudication: his account of how judges decide “hard cases.” On this question Dworkin challenged his great 20th century rival H.L.A. Hart (and Legal Positivism generally) by insisting that there is a necessary connection between law and morality. This connection, Dworkin argued, is attributable to the fact that in engaging in the process of adjudication judges necessarily draw on moral considerations. They do so not because of some irresistable impulse on their parts to change the law so that it better fits with their own moral or political tastes but rather because drawing on evaluative considerations is an unavoidable part of any interpretive enterprise, whether it be interpreting a piece of literature or art, a particular social practice, or a set of legal provisions.

Dworkin was a master of the punchy phrase or analogy. He used the image of a right as a “trump card” that automatically defeats cards from other suits as a means of explaining his account of rights as special claims that defeat ordinary political claims based on utilitarian calculations.  Similarly in respect of his argument concerning “constructive interpretation” and how judges decide cases: he frequently used productions of great plays as an illustration.

And so how do we interpret social practices or texts? Imagine you are a music teacher in a secondary school tasked with putting on a version of West Side Story. You must interpret that musical. This is quite a task, given that it is based on a book written by an author, with music written by someone else, lyrics by another, and choreogrpahy by yet another!

You would probably begin by familiarising yourself with the text and the music. You could not reasonably claim that yours was a production of West Side Story if you had instructed your actors to act lines from The Sound of Music. As well as using the text, you will probably consider previous productions of West Side Story. In fact these previous productions will heavily influence your decisions – both consciously and otherwise – as you set about your task. In other words, in putting on the production you will have fidelity to the text and music as well as to previous interpretations.

But this will only get you part of the way. You cannot magically reproduce the text without any creative input from yourself or your actors or your production team. You will have countless details to consider with all kinds of implications for the quality of your production. You will consider the size of your stage before deciding the details of your choreogrpahy, the various talents of your students and who might thus play which role, the best way of emphasising a particular line to convey the meaning of that line. And so on. You aim to give your audience your interpretation of West Side Story. You cannot offer anything else. You cannot pronounce to your audience on the opening night that you have achieved something no producer has ever previously achieved: that yours is not merely an interpretation, it is, in some deeper sense, the actual version!

The point here is that these kinds of considerations are necessarily evaluative. The world of fact cannot provide you with all of the answers that determine how you put on the production (the fact/value distinction, so central to Legal Positivism, breaks down). And further, you will interpret the play in a constructive way. You will not direct your lead actor, for instance, to deliver a particular line with her mouth closed and facing the back of the stage, at least not for the sake of it. You would only do so if you felt it might have some value in the particular context. Your aim, in other words, is to make the musical the best it can be: to cast it in its best light.

And so it is, Dworkin insisted, with the cases that come before the appellate courts. Each judge must interpret the law. They must have fidelity to the text – constitutional or legislative provisions – and to previous interpretations. They cannot decide, for instance, that the consititutional right to free primary education requires the State to provide caviar to each child each lunchtime, even if they think that that ought to be the case, morally. But judges, like the music teacher, are engaged in what is fundamentally an interpretive enterprise and so there is an inescapable evaluative element in law: what the law is is necessarily connected with what the law ought to be.

And so suppose a judge is confronted with a case concerning a young married mother who has been told by her doctors that becoming pregnant again would place her life at risk but who is prevented from using contraceptives because of a legislative provision that prohibits their sale or importation. There are various constitutional provisions that seem to bear on the case: a strong protection of the marital family, a right to freedom of conscience, personal rights (which are unenumerated but constitutionally protected and may or may not include a right to marital privacy) and so on. How does a judge decide that  case?

For Dworkin, this is where Legal Positivism – with its emphasis on “rules” (law is simply a “union of primary and secondary rules”) – is at its weakest. For Hart, the job of the judge is simply to apply the rules to the case at hand. Hart almost entirely dismissed the idea that there might be “gaps” in the rules, suggesting that the problem arose only very rarely and that, when it did, the judge should simply use her discretion.

Dworkin insisted that legal rules left “gaps” not merely in exceptional cases, but all of the time. This was the definition of a “hard case” (by which Dworkin meant any case, more or less, that comes before an appellate court or any case mentioned in any legal textbook). These hard cases illustrate simply that the law consists of more than rules: it consists of principles that undergird and justify those legal rules. The job of the judge, therefore, is to find the legal principle that best fits with the various legal rules and casts those rules in their best moral light. This is what the judges do, Dworkin would argue, in all cases, and it is what a judge would do if she were confronted with a case such as that concerning the woman who is effectively in a position whereby she must abstain from sexual relations with her husband.

It is hard to imagine that there has been a legal philosopher whose work has attracted as much criticism as Dworkin’s. Amongst the most compelling objections perhaps is his seeming elevation of law over politics. That is, for Dworkin, the appellate court is the great “forum of principle” in which judges reach the uniquely “right answer” on the disputes that come before them. Politics, on the other hand, is a dirty old world riddled with familiar vices: the influence of big business and party competition, partisanship and short-sighted electoral motivations. It is a forum of populism, one might say, in which actors reach the invariably wrong answer. This line in Dworkin’s work is particularly troubling in light of his enourmous influence amongst contemporary legal scholars. We might all think of the kinds of “right answers” that a principled judiciary might develop: on marriage equality or the death penalty or on the extent of the state’s duties with regard to children with special needs and so on. We all favour an active judiciary for ends that we happen to value. Dworkin’s scholarship generally (not only with respect to his theory of adjudication, but with resect to his philosophical account of rights too, for example) overlooks the one simple trump card that politics has over law: the democratic legitimacy stemming from the equal right to vote.

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Written by Charles O’Mahony

Charles O’Mahony is a lecturer in Public Law at the School of Law, NUI Galway. His research is primarily in the area of mental health law and policy. Charles previously worked as Amnesty International Ireland’s Legal Officer on its mental health campaign. You can contact him at charles.omahony[at]nuigalway.ie