ldsphilosopher

Jeffrey Thayne

Emmanuel Levinas was a Lithuanian Jew who lived from 1906 to 1995, and studied under some of the most influential thinkers in Europe. He later moved to France and authored one of the most exciting and original philosophies of the 20^th Century. He lived for a time as a prisoner of war during World War 2. After the war he responded with force against what he saw as the movement of western philosophy.

In Contrast with Western Philosophy

What is Western philosophy? Western philosophy traces its ancestry to ancient Europe, to countries such as Greece and Rome. It is the philosophy that you and I are already familiar with. It permeates our thoughts, ideas, and even how we make sense of the world. In Western philosophy, truth is generally considered to be the unchanging, foundational principles of the Universe. Philosophy itself is thought to be the method of reducing the flux of everyday experience to a set of static principles. For Western philosophy, there is no loss in this “reduction,” because we are making the world intelligible, or reducing the chaos we find in experience to unchanging unity.

In simple terms, in order to be truth, it has to be true everywhere, all of the time. Mathematical abstractions are the perfect example of Western truth. The equation c² = a² + b² seems to be true everywhere and everytime, regardless of the particular circumstances, and thus Pythagoras and subsequent Greek philosophers regarded it as truth. Thus, for Western thinking, all things that are dynamic, that are in motion, and that change can be accounted for by the few things that fundamentally do not change. The few things that are always the same govern or explain the many things that are in flux.

A perfect example of this Western way of thinking is in the scientific discipline. Scientists observe change in the world—be it objects falling or creatures evolving—and attempt to discover the unchanging principle to account for that change. For example, they develop a law of gravity to explain why things fall, and thus all the many instances of falling objects can be explained by the one law of gravity. They also formulate the law of natural selection to explain why creatures evolve. Both these laws are considered unchanging and static. Because these principles never change, scientists assume that they are more fundamental than what does change.

We can see that this idea of truth is everywhere in our society. Of course, this does not perfectly capture the thoughts of all Western philosophers. There are many variants and deviations from this worldview. We have summarized enough, however, to see what it is that Levinas responds to in his writings.

Reducing the Other to a Totality

Levinas claimed that there are two ways to know the world, or two ways that we can approach a phenomenon. Another way to say this is that there are two ways that we can know what is Other. The first way of knowing the world is the way that Western philosophy has adopted since its beginning. In order to describe this way of knowing the world, it may be best to use a metaphor. Consider a fruit, like an apple. The apple, upon first encounter, is not part of me; it is something other than me. However, when I eat the apple, it then becomes a part of me. When we consume food, we make it part of us, or part of the Same.

According to Levinas, Western philosophy does the same thing when it encounters the Other. It makes sense of the Other in a way that turns it into the Same. It destroys the otherness of the Other by reducing it to the Same. When we describe the Other in words or abstractions, we turn it into something that we can grasp, understand, encapsulate in words, and remake it in our own image. We use the idiomatic phrase, “I get it!” or, “I’ve got it!” to describe the way we know the phenomenon we’ve encountered. We thus take possession of the Other, and it thus becomes part of us. We become masters of the Other, because the Other has surrendered to us and has lost its alterity. The word alterity means “the state of being other, or different.” “Percieved in this way,” said Levinas, “philosophy would be engaged in reducing to the Same all that is opposed to it as other.” In essence, the goal of Western philosophy is to turn that which is alien into that which is familiar. Levinas continued, “Western philosophy coincides with the unveiling of the other in which the Other … loses its alterity. Philosophy is afflicted, from its childhood, with an insurmountable allergy: a horror of the Other which remains Other.”

There are many experiences that are perfectly compatible with this way of knowing the world. For example, descriptions of how things fall, mathematical principles, even bacterial infections are encounters with the world that are not distorted when enframed into a Totality.

Approaching the Other as the Infinite

However, there are many experiences where this process of subsuming the Other does distort the reality of the Other. For example, people are foremost and always an irreducible Other that must be approached differently. The second way Levinas said that we can know the world can be illustrated with another metaphor. Like the apple, when we drink from a spring, that which we drink becomes a part of us. But unlike the apple, we cannot drink all of the water that flows from the spring. Not only is there more to the phenomenon than we can consume, but there will always be more than we can consume, because it is an inexhaustible source. Thus, the Other is not something that we can encapsulate in words, take possession of, or make part of ourselves. There will always be something genuinely and irreducibly Other about it.

Levinas said, “The relation with infinity cannot, to be sure, be stated in terms of experience, for infinity overflows the thought that thinks it.” Let’s consider another example: when we think of the ocean, we have an idea what the ocean is and what it is like. However, there is always more about the ocean that we do not know. There will likely always be more in the ocean than what we know. Perhaps an even better metaphor is an idea of the cosmos: no matter what is contained in our idea, the reality of the cosmos is inexhaustible. It can never be fully encapsulated into words. The reality of the infinite will always be able to shatter whatever conceptions we make about it. We can never make the Infinite into a Totality. It can never be fully consumed, tamed, mastered, or made a part of us. In this mode of approaching the Other, we cannot make the Other into the Same. The Other is always in flux, because of its inexhaustible nature.

Because people are foremost and always an irreducible Other, they escape any attempt to  reduce them into a totality or to make them into the Same. C. S. Lewis wrote that when his wife died, he would remake the images and memories he had of her in his own image. He said, “Although ten minutes—ten seconds—of the real Helen would correct all this, the rough, sharp, cleansing tang of her otherness [was] gone. … The reality is no longer there to check me, to pull me up short, as the real Helen so often did, so unexpectedly, by being so thoroughly herself and not me.” This experience shows that there is something about the Other that is always in flux, that will always shatter whatever conceptions we form about it, that is inexhaustible in its presence as a spring of water. C. S. Lewis described God in a similar way: “My idea of God … has to be shattered time after time. He shatters it Himself. He is the great iconoclast. Could we not almost say that this shattering is one of the marks of His presence?” Levinas described this shattering as the other’s face: “The way in which the other presents himself, exceeding the idea of the other in me, we here name face. … The face of the Other at each moment destroys and overflows the plastic image it leaves me.” In other words, the Otherness of the Other cannot be made perfectly familiar without destroying its alterity.

When we make the Other into a Totality, the Other surrenders to us, and we take possession of it. When we approach the Other as the Infinite, something different happens; the Other inevitably pulls us into a relationship of obligation. “The face resists possession, resists my powers.” When we totalize another person, we do violence to that person. Only when we approach the Other as Infinite can we reduce the violence we do to them.

Conclusion

Human beings are inescapably an Infinity, not a totality. We see this in the way we approach others. Even when we are in a position to treat another person as an object, we inevitably acknowledge their humanity. For example, if a scientist wants to see what is inside a fruit, he simply slices it open and looks inside. However, few people would simply slice a living human being merely to satisfy a scientific curiosity. Even when we mistreat another person and treat them as objects, we acknowledge their humanity. We may laugh maliciously when we mischievously trip our friend, but no one laughs when a chair falls.

We see here a contrast between two different approaches: The reducing of the Other into a Totality, and the reverent approaching of the Other as the Infinite. Emmanuel Levinas worked to rupture the way we make sense of the world, to question the assumptions we make, and to create space for the second way of approaching the Other. According to Levinas, the reduction of what is infinite and Other to a totality and the Same is sometimes, if not often, a lesser and destructive method that mangles the phenomena we seek to understand. When we approach people as a totality, we can mask the genuine Otherness of those around us.

Jeffrey Thayne

I recently encountered an incredibly well-thought out critique of philosophy. I actually agree with this man. This does not mean that I don’t see value in studying philosophy. It is incontrovertible that philosophers have profoundly affected the way we see the world, and there is value in studying their ideas and investigating alternative worldviews. I agree, however, that philosophy (as an intellectual pursuit of knowledge) will never bring us to eternal truth.

This, of course, does not change the mission of this site: to contrast, in a simple and understandable way, the philosophies of the world with revealed truth. I believe one of the best reasons to study philosophy is to provide a context for revealed truth. When we understand how revealed truth differs from ideas and worldviews invented by people, we can be more wise in our choices and decisions. However, philosophy itself will rarely lead us to revelation.

Jeffrey Thayne

Hayek begins his analysis of law by reminding us that the rule of law implies certain restrictions on government action. This makes the rule of law something distinct from legislation in general. Hayek explains: “From the fact that the rule of law is a limitation upon all legislation, it follows that it cannot itself be a law in the same sense as the laws passed by the legislator.” The conclusion here is that rule of law cannot be guaranteed or mandated by legislative enactment. In other words, when Hayek talks about the rule of law, he isn’t referring merely to constitutions or judicial procedures. Certainly, he says,

constitutional provisions may make infringements of the rule of law more difficult. They may help to prevent inadvertent infringements by routine legislation. But the ultimate legislator can never limit his own powers by law, because he can always abrogate any law he has made. The rule of law is therefore not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal. It will be effective only in so far as the legislator feels bound by it. In a democracy this means that it will not prevail unless it forms part of the moral tradition of the community, a common ideal shared ad unquestioningly accepted by the majority.

Thus, the rule of law is a meta-legal doctrine or ideal that places restrictions on a legislator’s actions.

The Difference Between Coercion and Administration

Hayek distinguishes between coercive activities of government and other administrative activities of government. Hayek felt that it is important to remember that “not every enactment of the legislative authority is a law.” He also noted that not every act of government is coercive. “It is equally important,” he said, “to remember that the rule of law restricts government only in its coercive activities.”

“The great majority of the so-called laws,” Hayek said, “are rather instructions issued by the sate to its servants concerning the manner in which they are to direct the apparatus of government and the means which are at their disposal.” Hayek suggested that some problems may be solved by separating the coercive aspects of government from other more administrative aspects of government. He continued,

Today it is everywhere the task of the same legislature to direct the use of these means and to law down the rules which the ordinary citizen must observe. This, though the established practice, is not a necessary state of affairs. I cannot help wondering whether it might not be desirable to prevent the two types of decisions from being confused by entrusting the task of laying down general rules and the task of issuing orders to the administration to distinct representative bodies and by subjecting their decisions to independent judicial review so that neither will overstep its bounds.

… The present arrangements help to obscure the fact that, though government has to administer means which have been put at its disposal (including the services of all those whom it has hired to carry out its instructions), this does not mean that it should similarly administer the efforts of private citizens. What distinguishes a free from an unfree society is that in the former each individual has a recognized private sphere clearly distinct from the public sphere, and the private individual cannot be ordered about but is expected to obey only the rules which are equally applicable to all. It used to be the boast of free men that, so long as they kept within the bounds of known law, there was no need to ask anybody’s permission or to obey anybody’s orders.

Central to the rule of law, according to Hayek, is that government “must never coerce an individual except in the enforcement of a known rule” and “can infringe a person’s protected private sphere only as punishment for breaking an announced general rule.” For these reasons, “under the rule of law the private citizen and his property are not an object of administration by the government, not a means to be used for its purposes. … the principle of the rule of law, in effect, means that administrative authorities should have no discretionary powers in this respect.” On the question of the legal limits of administrative discretion, Hayek explained:

As Dicey has pointed out, ‘in the management of its own business, properly so called, the government will be found to need that freedom of action, necessarily possessed by every private person in the management of his own personal concerns.’ It may well be that legislative bodies are often overzealous in limiting the discretion of the administrative agencies and necessarily hamper their efficiency. This may be unavoidable to some degree; and it is probably necessary that bureaucratic organizations should be bound by rule to a greater extent than business concerns, as they lack that test of efficiency which profits provide in commercial affairs.

Again, Hayek tempers this claim with the provision that the private citizen is not considered an “object of administration” of the government.

Restrictions on Law

Hayek outlined several basic requirements for the rule of law.

1. Generality and Prospectivity. Hayek believed that laws need to be abstract in some sense. Some have claimed that this means that laws cannot contain proper nouns. The principle of generality does have this effect; laws cannot name particular people, places, etc. Heyek explained, “The general, abstract rules, which are laws in the substantive sense, are, as we have seen, essentially long-term measures, referring to yet unknown cases and containing no references to particular persons, places, or objects.” Lumped with the generality principle is the idea that “laws must always be prospective, never retrospective, in their effect.”

2. Publicity and Understandability. According to Hayek, “[another] chief attribute which must be required of true laws is that they be known and certain.” Some scholars, such as legal realists and Critical Legal Studies, claim that court rulings are never certain and often inconsistent. The claim is that the rules or principles on which judges base their decisions often differ from the written words of the law, and therefore the rules that really matter in a legal case are not public or understandable. Hayek believed that those who critique the certainty of law are mistaken. “The modern tendency to exaggerate this uncertainty,” he said, “is part of the campaign against the rule of law.” Laws are generally good at this: “It is the cases that never come before the courts, not those that do, that are the measure of the certainty of the law.”

Hayek did acknowledge, in response to these critical theorists, that judicial reasoning isn’t perfectly predictable. He said, “Psychologically, legal reasoning does not, of course, consist in explicit syllogisms, and the major premises will often not be explicit.” What is important, he said, is that the public is able to know what is expected of them, and if a judge’s decision can be reviewed and, in turn, replicated by an independent court, the rule of law can be preserved.

3. Equality. Hayek felt that there was no room for class distinctions in the rule of law. “That any law should apply equally to all,” he explained, “means more than that it should be general in the sense we have [previously] defined. A law may be perfectly general in referring only to formal characteristics of the persons involved and yet make different provisions for the different classes of people.” Hayek sees this as one of the greatest protection against infringements on individual liberty. This is because legislators and government officials often exempt themselves from the obligation to obey the laws they enact, thus creating for themselves a protected or special class. The equality principle forbids this kind of legislation, and requires that officials be subject to the same laws they enact.

4. Separation of legislative and judicial powers. This follows from the generality principle. Hayek explained, “Rules must not be made with particular cases in mind, nor must particular cases be decided in the light of anything but the general rule… This requires independent judges who are not concerned with any temporary ends of government.”

Summary

In summary, Hayek was firm defender of the rule of law, which he considered a political ideal. He understood the rule of law as a set of restrictions on the legislative powers of any government, and outlined a few of those restrictions. He strongly believed in a separation of the private affairs of the populace and the administrative affairs of the government. He did not believe that government should have any discretion to coerce private citizens, unless done by laws that meet the rule of law criteria.

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Notes:
All quotations drawn from F. A. Hayek, The Constitution of Liberty (Chicago: University of Chicago Press, 1960).

Jeffrey Thayne

H. L. A. Hart criticized the theory that law is simply the coercive orders of the sovereign to his subjects. He shows that this theory cannot explain the many facets of modern law, and concludes that a fresh start is needed. He said that the reason that the “conception of law as the sovereign’s coercive orders” fails is because it does not include the concept of a rule.

The External and Internal Points of View

Some theorists have developed what Hart called the “predictive theory of law,” which claims that law is a way for human beings to predict the actions of the fellow beings, particularly which of their own actions will bring upon themselves a hostile reaction from their peers. Laws give them guidelines to follow that will help them evade potential punitive consequences.

Hart feels as though this is an inadequate theory of law. Let’s try a thought experiment. Imagine an alien race studying the human species as a naturalist would study the meanderings of a colony of ants. The alien creatures would, eventually, discover a pattern of behavior; everyone people performed a certain act, others would detain or hurt them in some way. Through observation, they could eventually discover a rule that governed this behavior—every time a person does X, others respond with punishment Y. Another example: every time a light turns red, people will stop.

The alien creatures would have thus discovered among the human species a law and its associated enforcement. They could predict human action, to an extent, based upon these laws. They could treat traffic lights as signals that help them predict the behavior of motor vehicles, in the same way that “clouds are a sign that rain will come.” Then could even conclude that if an individual does not want punishment Y, he should not perform X. Hart calls this predictive vantage point the external point of view.

From this external point of view, if a law is not enforced, it doesn’t really exist at all. It would be undetectable to the external observer. An external observer would conclude that legal obligation is inextricably tied to enforcement and coercion. If someone can get away with breaking the law, they are not obligated to follow it. This is the implication of the statement that law is merely the coercive commands of the sovereign.

External Point of View

Law is useful for predicting the behavior of others and predicting potential punitive consequences of action.

Internal Point of View

Law is a reason for action, and justification for punitive consequences of action.

Hart’s “fundamental objection” to this external point of view is that “the predictive interpretation obscures the fact that, where rules exist, deviations from them are not merely grounds for a prediction that hostile reactions will follow or that a court will apply sanctions to those who break them, but are also a reason or justification for such a reaction and for applying the sanctions.” Simply put, breaking a rule does not simply allow us to predict that punishment will follow, it gives us grounds to say that punishment should follow.

Hart described this perspective as the internal point of view. This insight is something that can never be discovered by someone from the external point of view. Hart said that someone from the external point of view “will miss out a whole dimension of the social life of those whom he is watching, since for them the red light is not merely a sign that others will stop: they look upon it as a signal for them to stop, and so a reason for stopping in conformity to rules which make stopping when the light is red a standard of behaviour and an obligation.”

In essence, Hart claimed that legal theorists need to acknowledge both the external and internal points of view, and that the predictive theory of law defines the internal point of view out of existence. A theory of law needs not only to describe law as it is, but also the existence of legal obligation. In other words, a legal theory needs to account for the fact that law gives us a reason for acting, and that reason for acting cannot just be coercion or the avoidance of punishment.

Obligation

Another reason that Hart criticizes legal theories that base obligation in coercion is that they fail to describe real obligation at all. “Let us recall the gunman situation,” he said. “A orders B to hand over his money and threatens to shoot him if he does not comply.” We often, mistakenly, describe this situation in terms of obligation because this situation is “certainly one in which we would say that B, if he obeyed, was ‘obliged’ to hand over the money.” This, however, fails to account for legal obligation. “It is, however,” he continued, “equally certain that we should misdescribe the situation if we said, on these facts, that B ‘had an obligation’ or a ‘duty’ to hand over the money.” Clearly, he concluded, “we need something else for an understanding of the idea of obligation. … To feel obliged and to have an obligation are different though frequently concomitant things.” Coercion cannot be the source of legal obligation.

Neither do prescriptive rules, simply by their nature, carry an obligation. Hart described some kinds of rules that do not seem to carry the weight of obligation, such as table manners, for example, or the rules of grammar. He said, “To use in connection with rules of this kind the words ‘obligation’ or ‘duty’ would be misleading and not merely stylistically odd. It would misdescribe a social situation.”

Primary and Secondary Rules

Primary Rules

Require or forbid certain actions

Secondary Rules

Instructions for adding or altering primary rules

Hart described two basic types of rules. Under the primary type of rules, he said, “human beings are required to do or abstain from certain actions, whether they wish to or not.” Rules of the secondary type “provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations.”

Weaknesses in Primary Rules

Hart invited his readers to envision a primitive society without “a legislature, courts, or officials of any kind.” This society would certainly have customs, norms, and rules to live by, but they would all be rules of the primary type. Hart described three central weakness that these primary rules would have.

First, if doubts arise as to the actual nature of these rules, there would be no authority to turn to to settle those doubts. Thus, the rules would always be subject to an element of uncertainty.

Second, “there will be no means, in such a society, of deliberately adapting the rules to changing circumstances, either by eliminating old rules or introducing new ones.” Thus, the second defect of these primary rules would be that they are static.

Third, these primary rules would inevitably be applied inefficiently, because there is no one who can authoritatively discern if a rule has been broken. There is no way to diffuse the responsibility for enforcing them. For this reason, the third defect in these primary rules would be that they are inefficient.

Consequently, rules of an entirely different type are needed. Hart explains, “The remedy for each of these three main defects in this simplest form of social structure consists in supplementing the primary rules of obligation with secondary rules… The introduction of the remedy for each defect might, in itself, be considered a step from the pre-legal into the legal world.”

Secondary Rules that Remedy Them

The secondary rules that remedy uncertainty in primary rules are called rules of recognition. These rules describe the means by which rules become authoritative. In primitive societies, Hart explains, these may simply be that the rules are listed in a book, or a stone tablet. “In a developed legal system,” he continued, “This may be the fact of their having been enacted by a specific body, or their long customary practice, or their relation to judicial decisions.”

The secondary rules that remedy the static quality of primary rules are called rules of change. “The simplest form of such a rule,” said Hart, “is that which empowers an individual or body of persons to introduce new primary rules for the conduct of the life of the group … and to eliminate old rules.” These rules are closely connected with the first set of secondary rules, because the changes made in accordance with the rules of change must be authoritative according to the rules of recognition.

Weaknesses	Secondary Rules
Uncertainty	Rules of Recognition
Static	Rules of Change
Inefficient	Rules of Adjudication

The secondary rules which remedy the inefficiency in primary rules are called rules of adjudication. These rules empower “individuals to make authoritative determinations of the question whether, on a particular occasion, a primary rule has been broken.” The reason these are secondary rules is because the don’t “impose duties” as primary rules do, but instead “confer judicial powers and a special status on judicial declarations about the breach of obligations.”

What the Realists Are Wrong

Hart disagreed with legal realists who claimed that law is made by judges, not legislatures. He said that realists fail to distinguish “between the ‘core’ and the ‘penumbra’ of a law.”¹ The core of a law consists of those particular circumstances known to the legislature and which the law was designed to address. On those issues, said Hart, the judges decision was bound by the written law. It is only in the ‘penumbra’ of a law, which consists in those “particulars which were not in the minds of the legislators but are offered later as new candidates for inclusion.”¹ It is only in those cases that the claims of the legal realists apply.

Summary

Hart felt that the distinction between primary and secondary rules helps resolve many confusions in legal theory. He said,

If we stand back and consider the structure which has resulted from the combination of primary rules of obligation with the secondary rules of recognition, change, and adjudication, it is plain that we have here not only the heart of a legal system, but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist.

Hart believed that the reason that theorists have struggled to understand legal obligations is because “these essentially involve reference to what we have called the internal point of view: the view of those who do not merely record and predict behavior conforming to rules, but use the rules as standards for the appraisal of their own and other’s behavior.” Many theorists ignore the internal point of view because “there is a constant pull towards an analysis of these in the terms of ordinary or ’scientific’, fact-stating or predictive discourse. But this can only reproduce their external aspect.”

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Notes:

1. Shirley Robin Letwin, On the History of the Idea of Law, (Cambridge: Camrbidge University Press, 2005).
All other quotations taken from H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1994).

Jeffrey Thayne

How should judges make their decisions? Should they base it on their own beliefs, historical precedence, or purely on the plain wording of legislation?

Dr. Reynolds describes Dworkin as a very enigmatic figure. According to Dr. Reynolds, Dworkin would publicly present a treatise on law, but would never participate in the subsequent public discussion about his views. He would rarely respond to the questions, critiques, or criticisms of his views. His philosophy has been very influential, but not always understandable or consistent.

Some of those criticisms are well founded. This presentation of Dworkin will be taken entirely from Shirley Robin Letwin’s critique of his philosophy. I do not have any original sources in front of me, so Letwin’s analysis will have to suffice for now. She does not approve at all of Dworkin. In fact, she sees Dworkin’s writings as a “thorough attack on the idea of law.” Of course, Dworkin himself would claim that he is revising the idea of law in order to preserve it from its weaknesses, but Letwin does not see it that way.

According to Letwin, Dworkin’s philosophy of law was presented primarily in three publications: Taking Rights Seriously, A Matter of Principle, and Law’s Empire. This is important because each publication presents a slightly different point of view, and it is difficult to meld all three into a coherent whole, because they sometimes contradict each other and use very different rhetoric. “However,” says Letwin, “the moral of his story has remained the same in all—law and political theory are so inexorably intertwined that law and politics are essentially one.” We will discuss the views presented in each of Dworkin’s publications in sequence.

Taking Rights Seriously

It is difficult to place Dworkin on either side of the Natural Law vs. Positivism debate, because both sides regularly claim him as their own. While Dworkin claims that his philosophy is an alternative to positivism, natural law theorists are very uneasy with his claims. Letwin explains, “Natural lawyers accuse him of arguing against fixed morality in law, while many claim his theories are most properly described as natural law.” In the end, the best label to attach to him is exactly how Dr. Reynolds describes him: an enigma.

Dworkin argues that positivism gives judges too much of a free reign in interpreting law in “hard cases.” Hard cases are those cases in which a judge must interpret a law in circumstances with little or no precedence, as well as cases which are politically charged and in which the law is ambiguous. The reason positivists give judges too much discretion in these cases, says Dworkin, is because of their separation of “legal rules from non-legal standards.” Positivists believe that the legality and the validity of law is unrelated to its desirability and morality. Therefore, in hard cases in which the law is ambiguous or their is no clear precedent, the judge must appeal to extra-legal standards in order to make a ruling, such as a judge’s political or moral ideals.

Dworkin feels as though this gives judges too long of a leash. He claims to solve this problem by re-construing the nature of law to include principles traditionally thought of as extra-legal principles. For example, a judge may look to historical precedent, and observe an over-arching pattern to legislation and adjudication, and from this pattern articulate a principle on which he should base his present ruling. Because the judge is bound by these legal principles, his discretionary leash is shortened.

Dworkin felt, however, that these overarching legal principles should have a voice even in cases that are not difficult, or when the law is unambiguous. For example, because the Fugitive Slave Act unambiguously stated that escaped slaves were to be returned to their owners, the Supreme Court ordered slaves to be returned in accordance with the law, “even though they themselves were strongly opposed to slavery.” Dworkin felt as though this ruling was in error, for even though the law was unambiguous, the United States Constitution and subsequent legislation established an over-arching principle of freedom and human dignity which the judges ignored.

Thus, it seems that although Dworkin claims to restrict judicial discretion, he encouraged it even more by claiming that judges were not required to adhere to written law, but to unwritten principles they can discern from the overall body and history of law. Letwin continues, “Dworkin thus moves from an apparently technical discussion of ‘hard’ cases to the conclusion that it is normal and desirable for legal decisions to be political decisions.”

As indicated by the title of his first publication, these legal principles on which Dworkin believes judges should base their rulings are largely articulated in the rhetoric of legal rights and equality. Letwin explains:

In fact, as Dworkin himself says bluntly, he is out to defend equality, which, he maintains, cannot be reconciled with liberty. “The idea of a right to liberty is a misconceived concept that does dis-service to political thought,” Dworkin declares. The “idea of a right to liberty” creates “a false sense of a necessary conflict between liberty and other values when social regulation, like the busing program, is proposed.” The law ought to be based, Dworkin says, on the principle of “equal concern and respect,” and he regards the requirements of this principle as so self-evident that he sees no need to defend it.

A Matter of Principle

Dworking’s second publication is dedicated more to the way in which judges interpret the law and discern the overarching legal principles he espouses. Consider, Dworkin said, a critic interpreting a work of art or literature. The way he interprets the work of art will largely depend on what he sees as important in not only art, but the world around him. Because of this, according to Letwin, “we cannot separate interpreting a work of art from ‘evaluating’ it. … Interpretation has normative presuppositions.” Dworkin goes even further, and claims that “the artist can create nothing without interpreting as he creates, [and the critic] creates as he interprets.” Letwin continues, “By equating ‘normative beliefs’ with every sort of presupposition, Dworkin makes it impossible to distinguish interpretation from evaluation and thus converts interpretation into a synonym for evaluation.”

Dworkin used these facts to justify the possibility that judges may seem to create new laws as they interpret law. For Dworkin, “adjudication is likened to producing a novel by a chain of authors. Just as each author has to construct a unifying conception of what his predecessors have written, so the judge has to determine what ‘the point or theme of the practice so far, taken as a whole, really is.’” As Dworkin argued in Taking Rights Seriously, what authors have written before can be pieced together into an overarching plot-line, and the judge must rule accordingly. As there are many possible interpretations of the story so far, each judge must choose an interpretation of the story that he determines as “a sounder principle of justice.” Again, as he argued in his first publication, Dworkin believes that the sounder principle of justice that is often ignored is the principle of equality. Letwin says,

Not many conservatives would agree, but according to Dworkin conservatives value the ideals of liberty over those of equality, and believe that it is possible to uniformly determine the ideals of a good life and therefore to expect the government to promote them. As liberals claim no such pretensions to the proper mode of life, they recognize the prominence of the moral principle of equality, “that human beings must be treated as equals by their government,” over that of liberty. …

From his principle of equal concern and respect, the liberal derives a number of practical and inescapable conclusions. Unlike the conservative, he would qualify the decisions of the market, as well as rights to property and freedom of contract, in order to produce a more equal distribution of wealth. Where people have different talents and handicaps and inherit more or less wealth, “It is obviously obnoxious to the liberal conception” to allow one man to own more because “his father had superior skill or luck.” The liberal therefore supports government intervention for the redistribution of goods. And if he finds that an adequate distribution cannot be achieved within a capitalist economy, the liberal would be forced to reluctantly substitute “socialist for market decisions over a large part of the economy.”

That the written law may contradict the decisions of a judge does not concern Dworkin so much as whether judge’s decisions meet the demands of over-arching legal principles. Dworkin opposes what he calls a “rule book conception” of law, which, according to Letwin,

he describes as the belief that “the power of the state should never be exercised against individual citizens except in accordance with rules explicitly set out in a public rule book available to all. The government as well as ordinary citizens must play by these public rules until they are changed, in accordance with further rules about how they are to be changed, which are also set out in the rule book.”

Dworkin explicitly said, “My point was not that ‘the law’ contains a fixed number of standards, some of which are rules and others principles. Indeed, I want to oppose the idea that ‘the law’ is a fixed set of standards of any sort.” Instead, he proposed his “rights conception” of law. Each individual has moral duties to each other and rights against the government, and the judge must rule according to these duties and rights, without giving undue preference to the written verbage of the law. According to Letwin, “By abandoning the rule book conception and allowing, indeed encouraging, the political decisions required by his rights conception, Dworkin plainly rejects the traditional insistence on the separation of powers between judges and legislators.” Dworkin contends that the rule-book conception of law places too much emphasis on liberty rather than equality, and he argues that “‘liberty’ is not a right, but should always give way to ‘equality,’ and that injustice consists wholly in a denial of equality, not liberty.”

Law’s Empire

Dworkin’s third publication is less radical than his previous two. In fact, he even contradicts many of the claims he had previously made. For example, he made the opposite claim with regards to the Supreme Court’s decision on the Fugitive Slave Act. He said, “If a judge’s own sense of justice condemned that act as deeply immoral . . . he would have to consider whether he should actually enforce it on the demand of a slave owner, or whether he should lie and say that this was not the law after all, or whether he should resign.” This statement shows much more respect for the written law than his previous claim that the judges should have simply disregarded the law. According to Letwin,

Dworkin even goes so far as to deny that he has any quarrel with the view “of most laymen,” which is also “the anthem of the legal conservative,” that “The law is the law” and that “It is not what judges think it is, but what it really is. Their job is to apply it, not to change it to fit their own ethics or politics.” This view, “read word by word,” Dworkin pronounces as “nothing controversial.” And he condemns “activism” in constitutional adjudication on the grounds that justices should “enforce the Constitution through interpretation,” not “fiat,” and that their decisions “must fit constitutional practice, not ignore it.”

While these statements imply that Dworkin has renounced his earlier claims, the overall message of his third publication is the same as the first two, but simply presented in more appealing rhetoric. He presents his theory of “law as integrity.” In order for people to see law as legitimate, law has to be coherent, and this means that law must coincide with the overall voice of the overarching principle. Letwin explains that in Dworkin’s view, “the coherence of the law becomes synonymous with “the state speaking with a single voice,” with seeing the law in terms of a single principle, or as the work of a single author.” This does not mean that a judge is bound by precedence; he may depart from the written law if doing so will satisfy the demands of principle that the written law or precedence does not.

Summary

Dworkin sees the purpose of law as preventing injustice; he defines injustice as inequality. Judges should rule based upon the demands of legal principles, which require that the judges rule in such a way as to promote overall equality, without regard to written law or liberty. “In plain words,” Letwin says, “Dworkin is advocating that the law be used as an instrument for redistributing resources so as to secure equality.” He describes this as the goal of an “organic” community, and thus believes that the rule of law is thus “compatible with a community understood as an enterprise pursuing a single objective.” In conclusion, says Letwin,

Where there is an enterprise, there must be an objective that the enterprise is seeking to achieve. In other words, an organic community has to have a single objective. There is no such objective for the kind of community postulated by the traditional idea of law because it does not seek to order the activities of its members so as to promote a superior unitary good, but to allow each peacefully to pursue, either alone or in association with others, whatever projects one chooses.

For this reason, Letwin believes that Dworkin’s theory is attack on the idea of the rule of law. Dworkin blurs the distinction between legislation and adjudication, and turns law into an instrument of coercion in service of a particular political ideology.

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Notes

All quotations taken from Shirley Robin Letwin, On the History of the Idea of Law (Cambridge: Cambridge University Press, 2005).