Transcript of Dworkin's Jurisprudence

so in the previous lesson we discussed some of the jurist Prudential theories which were associated closely with that of HLA har we talked about some of the general rules and implications of heart's jurist Prudence which is a more modern upto-date version of legal positivism where Harts essentially makes a delineation between what he describes as primary rules which are the rules of law which essentially are required for the operationalization of society and then the various different secondary rules which relate to those primary rules this lesson is going to talk about the critiques that have been levied against HLA Hart by the philosopher Ronald dworin we'll talk about dworin in terms of his career as a philosopher as a as a jurist Prudential theorist and then we'll start to talk about the application of dworkin's jurist prudence to that of essentially critiquing some of the more modern theories and modern forms of legal positivism so this is essentially dworkin's critique of legal positivism and really we are talking mainly about the debates that were had between Hart and dworin around the philosophy of Law and essentially jurist Prudential ideas so like I said beginning first then we'll talk about essentially the career of Ronald Walkin as a as a philosopher as a legal philosopher and as a Juris Prudential theorist he was a legal theorist who lived between 1931 and 2013 he was a professor of Law and philosophy at NYU and then also at UCL University uh so these are two relatively prestigious universities in the United States and he was also the chair of jurist prudence at the University of Oxford which is of course a very prestigious position within the University of Oxford his philosophical influence can really be situated in the times in which he was doing his philosophy so people like Hart were writing at the time that dworin was writing but then if you look at philosophers from other different uh uh philosophical disciplines to people like Quin um they were also quite influential of course Quin was more influential in terms of his development of modal logic his development of metaphysics and also his development on the philosophy of language all of which we have lessons on in and over on the philosophy Academy YouTube channel where we were actually at the moment at the time of recording at least um uh talking about and discussing quin's theories of ontological commitments so we describe a lot of the work pertaining to dworin as something of a response to the legal positivism of HLA har because essentially you can't really detach the two from each other because dworkin's development of his own theories of of Law and Juris Prudence were that of a response to people like HLA Hart and so the back and forth debate that was had between these two uh philosophers uh which was in some cases actually a debate that was back and forth um were were essentially allowing for us to intertwine these two philosophers such that such that you can't really talk about heart Without Really referencing dworin and you can't reference dworin without talking about Hart so with that being said then if you haven't seen our video on legal positivism from uh the perspective of HLA heart and the modern forms of positivism um then I would highly recommend you go and look at that first it will be in order in the in the playlist but let's just do a recap of Hart's legal positivism so what Hart does is describe law as a set of rules okay and we remember that this is something where we see a Detachment from morality which is of course how Hart delineates himself as a positivist away from the the natural law theories that were beginning to wne in terms of their popularity according to Hart's concept of law he says that the rule of recognition providing the criteria by which the Val validity of other rules of the system is assessed as an ultimate Rule and where there are several criteria ranked in order or relative subordination and Primacy of one of them is supreme this is his explanation of what he describes as the rule of recognition which is described and defined as one of the major secondary rules of heart's jurist Prudence if you remember with talking about uh rules of adjudication for example rules of change I I in order for a primary rule to be a law it ought to have the ability to change and be reformed to better reflect societal standards adjudication refers to the idea that law in order for it to a rule for it in order for a rule sorry to be law it should have the ability to or there should be some mechanism by which an individual can actually go about and adjudicate on the disputes arising out of those law uh those laws and then you also have this idea that is recognized In this passage here which is of course the rule of recognition so what dworin does is he begins by critiquing the positivist conception that law contains rules and that law can be represented as a set of rules and because of the the reason for this is because according to dworin law can also contain non-rule standards so to suggest that law is just a collection of rules and law is best to be perceived as rules is something that dworin critiques and he essentially issues a counter example to this particular conception arguing that okay well if that's the case then why does law contain nonr standards so therefore as a result of which you would conclude that Hart's legal positivism is um is is incomplete or it is lacking in some way what dworin does then in building his his conception is that firstly recognizing that law contains non-rule standards first of all but then suggesting that these non-rule standards could be considered to be principles so the existence of these principles are not necessar to not necessarily to advance some kind of sociopolitical or economic end goal remember the word Telos is just a translation of ancient Greek for for the word end when we talk about something having a teleology or having a Telos we're talking about the end goal so when we think about the Arista tilian influences on natural law that we did earlier on in this series of lessons we talked about the fact that uh Aristotle was very te logical in his perspectives of law or at least his perspectives of rules and actually his perspective of morality more generally and so the existence of principles when it comes to dworkin's conception is not to advance some kind of end goal some kind of sociopolitical end uh but rather to fulfill some requirement of Justice or fairness I.E or some other dimension of morality so really in this sense the the the TS of a particular legal principle is not relevant in terms of what dworin would describe as these principles rather the the point of it is the idea and the requirement of Justice or fairness itself what happens here is that uh dworin will discuss a number of cases which illustrate this Point uh and one of the very very key cases that is very interesting in this regard that that illustrates this point perfectly is the case from 1889 of Rigs and Palmer ultimately the defendant in this case murdered the testator of an estate remember or for anybody who has not studied the law of trusts a testator is uh the person is a person who will transfer legal title in the creation of a trust a testator is um dead and the settler would be somebody who is alive who does uh who creates a trust so the settler and the testator are the same person but we Define them as a settler or a testator depending on whether or not they're dead or alive now the interesting thing here was that the estate was due to be inherited by the murderer upon the death of the testator so they the testator had in the state and um essentially the person who was going to inherit seted estate was um the murderer of this particular um particular uh particular uh individual or at least uh or at least more specifically um the law at the time meant that according to the law of succession at the time uh the the murderer would actually have inherited the estate of the um of the murdered person okay so they may not have been directly um in the estate at the time of the murder but they would have inherited the estate upon the death of the testator um and so the law of succession meant that essentially what we have here um is an individual who is a murderer who is now inheriting the state of the victim and of course this is not doesn't sit particularly well in a number of different instances the courts held in this case that no one shall be permitted to profit by his own fraud or to acquire property of his own crime so what this is essentially suggesting is that even though upon an ordinary understanding and reading of the law of succession in this case the person who was the murderer should have inherited the uh should have inherited the estate because of the fact that an individual should not have profited from their own fraud or have acquired property by their own crime it meant that they were not going to get the estate in question so this is an example that dworin uses to illustrate the fact that there are some principles that don't necessarily adhere to uh a rule uh and therefore a law as a rule as as Hart would have suggested but rather um fits certain circumstances to deliver Justice or fairness in individual cases so like uh like uh uh like dworin says here he talks about the idea of there being um a principle that will um serve or fulfill the requirement of some other dimension of morality and he uses this example here of the case of Rigs and Palmer to illustrate this point essentially dorin then argues that this is how a principle operates essentially he says that a principal should be able to override an established rule that is a legal rule because if we go back to this case of Rigs and pment the established legal rule of the law of succession was that the murderer would have actually inherited the estate of the victim and so therefore would have killed the person and and would have gotten all this person's money and been very very happy probably and so as a result of this that is the rule but the court overruled that rule essentially they said that um this would override the established Rule and that's what dworin argues is a principle the different the difference between legal rules and legal principles is actually one according to dorin of a logical distinction they can both um point to particular decisions about legal obligations but what they will do is differ in their character so legal principles as we've mentioned aim to achieve Justice or fairness or other moral uh Dimensions um without consideration necessary necessarily for the teleological perspective of society the teleological end goal whether that be socioeconomic or political continuing then and and going back to heart's uh principles of uh of jurist prudence um we have to think about uh the concept of the rule of recognition which is one that heart develops but also one that dworin will reject he rejects the notion that there exists some kind of Mass rule for in every legal system that is utilized to identify the validity of law which is what the rule of recognition is and if you want to know more go back to the previous lesson and the reason why he comes to this conclusion uh is because the idea of a rule of recognition would actually lead to a situation where we actually develop a process of identifying law um but we have to think about this in a as something which would be of relative ease and so he rejects this he rejects that the idea of that the rule of recognition entailing that the process of identifying law must be an easy process actually dwen argues that people still have legal rights even in cases where the correct legal outcome is disputed so whereas heart would suggest that according to the rule of recognition we should be able to identify law within a particular situation with relative ease and bear in mind that is not just recognizing that a thing is law that that for example if Parliament passes um legislation that that law but talking about legal judgments in in adjudicative cases so even where the correct legal outcome is disputed in those situations some of the really complicated and difficult and often heavily critiqued situations dkin suggests that I mean if we were to if we were to follow the the rule of recognition by heart then this would be a difficult thing to reconcile but according to dworim those people still have legal rights the law exists somewhere in this particular set of circumstances and this is the case even where the correct legal outcome is disputed finally then I just want to talk a little bit about the interrelationship between law and morality something that we have uh really been coming back to as a major theme throughout this series of lessons specifically looking at when we talk about uh positivism well this is one of the areas where dworin actually agrees to an extent with the writings of HLA Hart he um argues against the view um that law and morality are to be completely separate okay and what he does is cite a constructive interpretation of the law and suggest that this constructive interpretation of the law must necessarily implicate moral judgments when it comes to decisions about what the law is and what the law isn't so again when I say that a positivist can um develop a theory of law which which does uh give rise to considerations of morality this is not suggesting that uh legal positivism or at least these theories of legal positivism can be reduced to natural law because what natural law does is Place morality front and center and suggest that it is morality or the the moral law from which all legal principles derive out of a legal positivist doesn't believe that but a legal positivist doesn't necessarily mean that you have to uh disregard and have no interconnection between law and morality whatsoever because you can have law and morality having some kind of relationship with each other and still be a legal positivist and that's really what dworin and as does Hart also um suggest when they develop their theories of law