The Soundest Theory of Law C. L. Ten



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I Lon L. Fuller, The Morality of Law, revised ed. (New Haven and London;

Yale University Press, 1969).
of the legal system. This is unexciting because we can, by a

suitably broad definition of moral standards, ensure that the

claim is true, even though its truth is consistent with the fact that

these moral standards fall far short of acceptable or sound stand-

ards of morality.

Underlying the separation thesis is the belief that the law of

a society can in principle be distinguished from its non-legal

standards, and in particular from the positive morality of society,

i.e. the widely shared moral standards of the community. A rule

is a legal rule if it satisfies certain tests incorporated in what

Hart calls 'the rule of recognition'.1 The rule of recognition is a

rule, or a set of rules, which lays down the ultimate basis for

identifying other rules as legally valid, and therefore as rules of

a particular legal system. The rule of recognition can be simple

or complex. It may incorporate moral criteria or it may not. The

point is that it is not required to have a specific moral content. A

simplified example of a rule of recognition is the rule, 'What the

Queen enacts in Parliament is law'. So if law can be identified in

terms of some such rule of recognition, then it is always possible

in principle to distinguish law from the rules of positive morality

even though law and positive morality may influence each other,

and may overlap to a considerable degree. A standard of positive

morality is not automatically a legal standard, and a legal standard

does not have to satisfy the requirements of positive morality, or

even of a sound and correct critical morality.
II
Dworkin's attack on legal positivism centres round his rejection

of Hart's analysis of law as a system of different types of rules. He

maintains that Hart has overlooked the vital role played by legal

principles in adjudication. He refers to cases where the literal

interpretation of a legal rule will yield a certain result, but the

correct judicial decision is based on the application of legal

principles which give a different result. He also cites hard cases

where no clear legal rules apply, and, on a positivist account,

judges reach their decisions by invoking extra-legal considerations.

But on his view, even when no legal rules apply, there are still


1 H. L. A. Hart. The Concept of Law (Oxford: Clarendon Press, 1961),

cbs. V and VI.
relevant legal principles which judges have a legal duty to apply,

just as they have a duty to apply legal rules.

For Dworkin legal principles lay down standards which are to

be observed because they are required by 'justice or fairness or

some other dimension of morality' (p. 22). Principles are to be

distinguished from rules in that rules apply in an all-or-nothing

manner, whereas principles have a dimension of weight or

importance. Where a rule applies, it conclusively determines a

case. Two rules cannot both properly apply to the same case. If

they appear to do so, it will be because one rule is invalid, or else

one, or both, rules have not been exhaustively stated. The com-

plete statement of both valid rules will show that there is no real

conflict between them. Principles, on the other hand, merely

state reasons for a particular decision, but they do not state

conclusive reasons. Two legal principles can both apply to the

same case. One principle may be more important than another

in the sense that where they clash in a particular case, and other

things are equal, the decision will be made in accordance with the

more important principle. Dworkin cites a whole range of legal

principles. They include rather specific principles like that about

the special obligations of car manufacturers, as well as very

general principles like 'No man may profit from his own wrong'.

There are also principles about the role and functions of Congress.

But so far, Dworkin's notion of legal principles is quite con-

sistent with legal positivism, for he does not wish to maintain

that all moral principles are legal principles although he regards

all legal principles as moral principles. So he still has to distin-

guish between legal and non-legal principles, and it appears that

Hart's rule of recognition can be used for this purpose. But

Dworkin denies the relevance of the rule of recognition here

because he argues that certain principles are legal not because

they are identified as such by the rule of recognition, but rather

because they are accepted as appropriate by the legal community

and by the general public. If this is so, then any principle can,

simply through general acceptance, become a legal principle.

However Dworkin points out that if someone challenges our

claim that a principle is a legal principle, we would have to back

it up with 'institutional support'. In other words, we would have

to refer to prior cases where the principle was cited, or to some

statute in which the principle was embodied. He adds: '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 one could claim for the principle' (p. 40).

But this notion of 'institutional support' gives the positivist all

that he needs, for what Dworkin has admitted is that there is a

general, although perhaps complicated, test for distinguishing

legal from non-legal principles. Moral principles, whether they

belong to positive morality, or to an acceptable critical morality,

are not legal principles unless they are cited in prior cases or

embodied in some statute.

However, in his later papers, Dworkin develops the test of

institutional support in a way that provides what appears to be a

different basis for identifying legal principles. Briefly, legal

principles are now all those principles which feature in 'the

soundest theory of law' which explains and justifies a society's

settled rules of law (pp. 66-68). The settled law consists of the

various constitutional provisions, the statutes and the authoritative

judicial decisions. But in addition the law includes those principles

which are presupposed by the settled law and which together

best explain, unify, and justify the settled law.

Dworkin believes that the soundest theory of law identifies

legal principles in a way that is inconsistent with Hart's theory

of the rule of recognition. He also points out that in determining

which is the soundest theory of law, and therefore in deciding

which principles are legal, a judge has to decide on moral issues

in a manner incompatible with the separation thesis.

Dworkin maintains that the rule of recognition is a social rule

theory whereas his own soundest theory of law is a normative

theory (ch. 3). According to him, Hart analyses the notion of

duties, including the legal duties of the judge, by appealing to

the existence of a social rule in the community. And a social rule

exists when most of the members of that community act in accord-

ance with the rule, and appeal to it to evaluate, justify and criticize

their own behaviour and the behaviour of others. In other words,

there is a uniform pattern of behaviour, and appeals are made to

the rule to justify conformity to that pattern of behaviour, and

to criticize deviations from the pattern. When the sociologist

reports the existence of such a rule he is in fact maintaining that

members of the society behave in a certain way-that is, there is

uniformity of behaviour, and there are appeals to the rule to

justify or criticize one's own and other people's conduct. When

however someone says that we have a certain duty, he is not

simply reporting the presence of certain social practices. What he

is saying is that there is a social rule, and he indicates his own

acceptance of the social practices which constitute the rule. The

social rule theory applies not only to legal duties or obligations

but also to moral duties and obligations. But it does not apply to

more general moral judgements about the rightness or wrongness

of actions, or about what one ought to do.

Hart's rule of recognition, being a social rule, is constituted

by certain social practices. Suppose the rule of recognition states

that judges have a duty to apply rules and principles enacted by

the legislature, or embodied in past judicial decisions. On the

social rule theory what this means is that judges regularly act in

accordance with these rules and principles, and they criticize and

justify each other's conduct by reference to legislative enactments

and past judicial decisions. In the absence of such social practices,

a social rule theory will deny that judges have the duty in question.

For example, everyone might agree that men have a duty to take

off their hats in church, but there is disagreement about whether

or not parents should take off the bonnets of male babies. On the

social rule theory, what follows is that parents do not have the

duty to take off their babies' bonnets. So whenever there is

widespread disagreement about the scope of a duty, the social

rule theory is committed to saying that there is no duty in the

area of disagreement. Now if one applies the social rule theory to

judicial decisions in hard cases, then it is obvious that one is

committed to maintaining that judges do not have the legal duty

to apply a certain principle because they disagree about the

relevance of the principle. One might still wish to say that judges

ought to apply the principle, since 'ought'-statements are not

analysable in terms of a social rule. But Dworkin points out that

if judges do not have a duty to apply the principle, then it follows

that the principle is not a legal principle, but is something outside

the law. In this way Dworkin tries to link the positivist's appeal

to a rule of recognition for identifying the law of a society, to the

positivist's belief in judicial discretion. For if judges apply a

controversial principle which is extra-legal, then they exercise

discretion in applying a principle that they are permitted to

apply, and perhaps ought to apply, but are not legally required

to do so.

Dworkin has no difficulty in disposing of the social rule theory.

He points out that when a vegetarian claims that we have a moral

duty not to kill animals for food, he is not appealing to a social

rule, but rather to a normative rule. A normative rule exists when

someone accepts the rule as the basis for justifying and evaluating

his own conduct and the conduct of others. A normative rule

embodies a person's views about what rights and duties he and

others have, and these rights and duties need not be socially

recognized.

Dworkin claims that his soundest theory of law is a normative

theory. He denies that there is in every legal system a social rule

of recognition for identifying all the legal rules and principles in

that system. But he claims that in every legal system there is a

normative theory, or a set of moral standards which provides the

proper standards for judges to use in identifying rules and prin-

ciples of law.

Now I shall argue that, on the one hand, the legal positivists

are committed to a much weaker version of the social rule theory,

and that, on the other hand, Dworkin's soundest theory of law

is not a clear case of a normative theory. I shall therefore try to

show that even if there are still differences between Dworkin and

the legal positivist, these differences are much less than Dworkin

supposes. Later, I shall suggest that any remaining differences

between them should be resolved in favour of the positivists.

Let us begin by distinguishing between two kinds of vegetarian.

The conservative vegetarian argues to the conclusion that we have

a moral duty not to kill animals for food by appealing to principles

which are embedded in the positive morality of his society. Of

course he is not saying that society explicitly believes in, or

practises, vegetarianism. But he appeals from the explicit beliefs,

attitudes and conduct of members of the community to what is

implicit or presupposed by these beliefs and attitudes. He claims

that, whether they know it or not, and whether they like it or not,

the majority in society are committed to the vegetarian principle.

On the other hand, the radical vegetarian believes that we have

a moral duty not to kill animals for food, irrespective of whether

or not society's positive morality explicitly or implicitly supports

his belief. It is the radical vegetarian who clearly subscribes to a

normative rule because his vegetarianism is part of his view of

what moral rights and duties people really have. And this view

is held in complete independence of whether or not the rights

and duties are explicitly or implicitly recognized in social prac-

tices and beliefs.

A legal positivist cannot identify law in terms of a normative

rule like that of the radical vegetarian. For suppose a judge says

that the vegetarian principle is part of the law simply because

it is a principle which forms part of his theory of what rights and

duties we all have. His fellow judges do not share his view, and

the principle cannot be traced to any legal source like the constitu-

tion, or legislative enactment, or past judicial decisions. If the

judge is allowed to get away with his claim, then all the so-called

settled rules of law will be overturned as each judge in turn

appeals to his own normative theory. There is no way in which

one can distinguish between the law as it is and a particular

judge's conception of what the law morally ought to be. Every

case of judicial interpretation will include an attempt to arrive

at what the judge regards as the correct moral position.

However, the legal positivist can adopt a version of the con-

servative vegetarian's position and apply it to the law. He can

say that law consists not just of explicitly adopted rules and

principles but also of whatever rules and principles are embedded

in constitutional provisions, legislative enactments, and authorita-

tive judicial decisions. Indeed some such theory has recently

been suggested by Rolf Sartorius, who certainly regards his

theory as a version of legal positivism.1 The theory can be formu-

lated in terms of a complex rule of recognition which will not be

a social rule in Dworkin’s sense of the term. For there may be

considerable disagreement among judges about what rules and

principles are embedded in the legal sources. But even so, the

rule of recognition is dependent on social practice-the practice

of recognizing constitutional provisions, legislative enactments

and judicial decisions, as well as what is embedded in them, as

legal standards. The rule of recognition exists because there is

general agreement among judges that legal standards are to be

extracted from these sources, but there is no need for general

agreement about whether or not a particular standard is embedded

in the relevant legal sources. The agreement is about the procedure

to be followed for identifying legal standards, and not necessarily

about whether certain standards are in fact implicit in certain

legal sources. For in the cases of disagreement about such stand-

ards, the procedure further lays down, for example, that the





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