Hart maintains judges decide cases in one of two ways:
Dworkin seeks to show that there is a third thing judges do to decide cases: they use what he calls principles.
Dworkin also maintains that Hart’s theory that the law is the union of primary and secondary rules cannot accommodate principles. This is because, he says, principles are not rules themselves and they cannot be identified using a rule of recognition.
If Dworkin can prove all of these points, he will have shown that Hart’s theory is incomplete.
Here are some examples of principles.
Principles thus range over the topics of justice (i), the role of judicial precedents (ii), and good policy (iii).
In addition to examples, Dworkin gives us two abstract differences between principles and rules (Dworkin 1967, 25–27).
At the end of the day, I think this is going to be the most important point about principles. Dworkin thinks that the substance or “appropriateness” of principles is what matters and their origins are largely irrelevant. For Hart, it’s the other way around: origins matter more than substance. For Hart, a law is a rule that comes from a source that can make laws, no matter how stupid the rule is. For Dworkin, a principle has to make sense, no matter what its source is or even if it has no identifiable source at all.
Dworkin tries to show that Hart has to choose between saying one of two things:
He maintains that this is a dilemma because neither alternative is palatable for Hart and there is no third option.
We will be quick with the first option, that principles are not part of the law, because I know that Hart thought the second option was better. He had drafted a response to Dworkin that was published in the postscript of the second edition of The Concept of Law (Hart [1961] 1994). While Hart’s remarks were incomplete, his comments all concerned the second option and ignored the first. So that’s where we will concentrate our attention.
If Hart says that principles are part of the law, then he would have to show that there is a rule of recognition that we can use to identify the principles that are part of the law and distinguish them from the principles that are not part of the law. Dworkin denies that this can be done.
There could be a rule of recognition about statutes: we recognize them as law if they are passed by the legislature and signed by the executive. We could also have a rule for judicial precedents: we recognize past judicial rulings as part of the law that judges use to decide cases. But what feature of principles would we single out in a rule that we would then use to say “these principles are part of the law and those are not?”
You could say “our rule is that whatever principles are appropriate to a case are part of the law governing that case.” But that’s a useless rule. It doesn’t tell us anything about which principles are or are not part of the law. A judge would have to determine what counts as appropriate to make that determination; the rule itself wouldn’t do anything.
So it appears to be difficult to identify principles using a rule of recognition. If you’re persuaded that principles play an important role in the law, that seems to show that Hart’s theory is incomplete.
What would Hart’s best answer to this problem be? How could a rule of recognition identify the principles that are part of the law? That is the question that will occupy us for most of our time.
In discussing this, I think it would help to pay special attention to these two paragraphs from Dworkin’s article.
First, Dworkin concedes that principle have to have some institutional grounding in statutes or past court decisions.
if we were challenged to back up our claim that some principle is a principle of law, we would mention any prior cases in which that principle was cited, or figured in the argument. We would also mention any statute that seemed to exemplify that principle (even better if the principle was cited in the preamble of the statute, or in the committee reports or other legislative documents that accompanied it). Unless we could find some such institutional support, we would probably fail to make out our case, and the more support we found, the more weight we could claim for the principle. (Dworkin 1967, 41)
However, it’s pretty clear that Dworkin thinks that identifying principles involves a lot more than looking backwards to find their institutional origin in a statute or judicial decision. This paragraph comes immediately after the previous one.
Yet we could not devise any formula for testing how much and what kind of institutional support is necessary to make a principle a legal principle, still less to fix its weight at a particular order of magnitude. We argue for a particular principle by grappling with a whole set of shifting, developing and interacting standards (themselves principles rather than rules) about institutional responsibility, statutory interpretation, the persuasive force of various sorts of precedent, the relation of all these to contemporary moral practices, and hosts of other such standards. We could not bolt all of these together into a single “rule,” even a complex one, and if we could the result would bear little relation to Hart’s picture of a rule of recognition (Dworkin 1967, 41)
Katya did not see why it was a problem for Hart if principles were outside the law and judges used them to settle cases. That’s the whole point of what Hart had said about judicial legislation, isn’t it? When rules don’t determine an answer, as in the penumbral cases, judges have to rely on extra-legal considerations to reach a decision. And when they do, they have effectively legislated by refining the meaning of the law.
The objection to this was that if judges could use principles from outside the law to overrule legal rules, then there would not be much point in holding that the law is a system of rules. That’s a little different from using principles from outside the law to clarify rules or determine their exact meaning. (I did not say that at the time.)
In any event, no matter how judges use principles, Soo Bin said that he can cover it using a rule of recognition. As long as a society’s rule of recognition allows judges to legislate, that’s what they have the power to do and when they exercise that power, the rule of recognition tells us that they have made law. If memory serves, this is a point that Max and Nico made last time when I put them on hold for today. Credit where it’s due!
One other thing. If you look closely, you will see that Hart said that rules of adjudication are implicitly rules of recognition since they instruct us to regard the rulings of judges as an authoritative source on what the law means (Hart [1961] 1994, 97).
Xiya was unhappy with Dworkin’s idea that principles have to be judged “appropriate” in order to be part of the law. What does that mean? Lola worried that different judges have such different principles that this would be a recipe for disaster. I think that Dworkin suggested some limits on the kinds of principles judges can use in the paragraphs I quoted above from page 41. But I think it’s also fair to say that he didn’t really complete the job. He wrote a very large book on this topic, so he evidently agreed that there was more to say.
Lilly brought up the Nazi case from last time. When the German court said that a statute was too immoral to be law, isn’t that like saying that no one can profit from their own wrongdoing, even when the statute governing wills doesn’t mention anything about that? Yes indeed! Dworkin is comfortable with the idea that law and morality are deeply connected.
One formulation we ended up with is that for Dworkin judges discover the principles that are part of the law whereas for Hart judges make principles part of the law. For Dworkin, a judge finds that a principle is part of the law by finding that it is appropriate for a given case. For Hart, judges can make principles part of the law by issuing decisions that use principles. These decisions will, in turn, bind future judges and, in that way, they become part of the law.
There are two things that nag at me about this debate between Dworkin and Hart.
First, it seems to me that there is a mismatch between cases like the one about the vehicles in the park and the suggestion that principles play an important role in judicial decisions.
Is there a principle that tells us what the right answer to the vehicles case is? Maybe if we take “principle” to mean “policy consideration” there is. But I wonder if there are always clear social advantages from deciding a case one way or the other. If not, bringing principles into the law won’t be enough to show that there is no need for judges to legislate in at least some cases.
My second point is about retrospective or ex post facto legislation. What we said last time is that judicial legislation is bad because it means someone gets fined or punished for doing something that was not clearly against the law when it was done.
Would adding principles to the law help? The idea is supposed to be that the principles are already part of the law, so when judges make their decisions they are appealing to what is in the law rather than changing the law. But I’m not sure that this works. Since it is hard to tell how principles are weighed against one another, even according to Dworkin, it seems to me quite unlikely that an average citizen would know which principles apply to which cases. But if you can’t figure out what the law is, how could it be fair to punish you for violating it? Isn’t that the real problem with ex post facto laws?
I am left with the disconcerting feeling that this is a problem that simply cannot be solved. We are always going to be liable for prosecution for violating laws that we could not have known about.