Effect of Dworkin's Human Rights - Essay Example

Dworkin: Positivist or Natural? In answering the question “What is law?” Saint Augustine d: “Lex iniustanon est lex” (Unjust law is not law). This attributes a moral dimension to the law, which is disputed in the positivist approach that postulates legal validity as being conditioned by social facts rather than moral content. Natural law however, holds that moral content has a bearing upon legal validity. Dworkin subscribes to the view that the law is a seamless system within which there will be found a relevant solution for every possible legal problem. Dworkin cannot be classified as a classical Natural lawyer because he does not equate morally unjust law with bad law, although he does highlight the value of the moral dimension to law when he states: “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness and procedural due process that provide the best constructive interpretation of the community’s legal practice.”1 Although Dworkin also endorses some of the Positivist views such that the fact that law is guided by a wide framework of social conventions or rules, he could best be classified as a natural lawyer since he suggests that every legal action has a moral dimension. This aspect assumes special importance in the context of human rights, which are enshrined in international human rights treaties, since human rights are not confined within the limits of a particular state. The universal nature of human rights ascribes to it a moral foundation in its interpretation, since the moral aspect of human rights involves an identification of the minimum requirements for human beings to lead a good life. Human rights are deemed to be universal in the sense that all human beings have these rights and should be able to enjoy them.2 Natural Law and Human Rights: The idea of law being “natural” implies that it is derived from the basis of morality. The foundation of natural law is that a putative norm cannot be considered legally valid, unless and until it is able to pass the moral threshold. The utilitarian position on liberty is based upon the proposition that the value of individual freedom is generally associated with that of greater good for society as a whole.3 Therefore, as stated by Feldman, “once something has been identified as a good, it must prima facie be made available to all without differentiating with reference to preferred outcomes.4 Fuller highlights this aspect of “good” in attributing an internal system of rules in framing the law. He contends that framing of rules of law is inevitably linked to morality, since (a) it is geared towards achieving the end result of social order and (b) it achieves this social order through a respect for individual autonomy, thus a failure to introduce principles conditioned by morality could produce a bad system of law, one that may be disputed as being law at all.5 Most of the principles Fuller advocates are based upon the idea of moral fairness and internal morality. According to John Austin, “a law may be defined as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”6 Austin drew support from views advocated by Bentham7 and stated that every legal norm needs to constitute a threat that is backed up by a sanction. It is this coercive aspect of the law that was clearly differentiated by Dworkin. Dworkin distinguishes between the rules that constitute the law and the principles that are used in the application of the law as follows: “Rules are applicable in an all or nothing fashion…..either the rule is valid in which case the answer it supplies must be accepted or it is not….but this is not the way principles operate…..[a principle] states a reason that argues in one direction but does not necessitate a particular decision.”8 Therefore, on this basis, Dworkin advances the proposition that in deciding difficult cases for which no effective legislation is found to exist, judges may invoke legal principles that are derived from a broad based framework of principles, which must also be considered to be equivalent to law although they may suggest rather than force a particular outcome.9 In the application of principles, judges may often use a moral basis in law which is conditioned by universal beliefs of fairness and equity. For example Dworkin cites the case of Riggs v Palmer 10as an example of the moral framework that forms the basis of application of principles when deciding hard cases. In this case, a defendant who killed his father due to the fear that he might change his will and disinherit him, was considered to have committed an immoral act that could not be condoned although from a legal perspective, the defendant had every right to inherit the property. Dworkin states that the Court decided the case on the basis of “the principle that no man may profit from his own wrong as a background standard against which to read the statute of wills.”11 This case is important because it establishes the fact that judicial activity sometimes requires an application of principles that may extend beyond those strictly promulgated under the law and such binding principles are derived from their contributions in terms of providing the best moral justification for society’s legal practices. On this basis, Dworkin states that “if we treat principles as law we must reject the positivists first tenet, that the law of a community is distinguished from other social standards by some test in the form of a master rule.”12 In order to ensure that individual rights are accorded importance in the framework of UK administration and law, the Bill of Rights was passed in the country in 1689. However, the provisions of the European Convention of Human Rights have stipulated certain fundamental rights for individuals with the aim of securing to all EU citizens, the rights guaranteed under the EC Treaty. Article 14 of the European Convention states that “the enjoyment of these rights and freedoms” is to be secured without discrimination.13. These rights are based upon universal criteria conditioned by morality, and since the UK has become a part of the European Commonwealth, the doctrine of primacy of community law has mandated the inclusion of these principles into the law of the country. Accordingly in 1998, the Human Rights Act was passed and under Section 3 of this Act, UK Parliament legislation must be read and given effect to in a way that will be compatible with Convention rights “so far as it is possible to do so.”14 The introduction of the Human Rights Act of 1988 is therefore intended to give the provisions of the European Convention “teeth that can bite” 15 in order to ensure compliance within the UK and provide scope for juridical interpretation through the application of universal standards. In 1978, the practice of judicial birching of juveniles that was in practice in the Island of Man was deemed to be a breach of Article 3 of the European Convention that prohibits cruel and inhuman punishment16. The practice of Birching was acceptable in the island of Man and was deemed to constitute a reasonable chastisement as established under common law in 1850 by the Chief Justice of England.17 But the European Commission and the Court of Human Rights in Strasbourg deemed it unacceptably cruel to young people18. Therefore in the adjudication of such cases, a universal standard conditioned by natural law was applied, rather than the positivist approach where law is conditioned by the social context. In the decision of the House of Lords in the recent case of A and Others v Secretary of State for the Home Department, the House of Lords rejected the use of evidence obtained through torture, and in its judgment stated: “The use of torture is dishonorable. It corrupts and degrades the state which uses it and the legal system which accepts it.”19 By attributing the use of torture to be “dishonorable”, there is a clear indication that it is the moral aspects of the law that are noteworthy in issues of human rights. In the application of the law, the judges have been guided by the principles of fairness, justice and morality as opposed to the restriction of the issue to the validity of the evidence. The demands of human rights must take precedence over social goals and in this context, Dworkin’s view is that “rights are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole.”20 Hence, Dworkin uses this as the basis for his argument that where the issue of claims under human rights arises, then the rights of the minorities to be protected from discriminatory treatment would trump over all considerations of advantages to the majority that are acquired through the discriminatory treatment21. The concept of trumps therefore overrides utilitarian concepts, because trumps express the fundamental basis of equality upon which the doctrine of human rights rests, and such equality must take precedence over social and political considerations. Such protection for individuals against discrimination has “trumped” in several cases before the European Courts, where issues such as homosexuality and individual freedom are involved.22 The validity of human rights will however depend upon the legal codification of these rights, since the pure ascribing of a moral basis cannot be effective in law, because morality is too broad based and law requires the development of specific norms. Positivism and Human Rights: The word “positivism” implies that law is “posited” or derived from legislative bodies who frame the laws. Therefore it emphasizes the conventional nature of law, being generated from social conventions. The Positivist approach to approach to law is not based upon any supreme authority without legal limitation, rather the constitutional and procedural requirements promulgated by law making authorities are deemed to establish legal validity with constraints where necessary. For example in the case of Norton v Shelby County23 the Supreme Court held that “an unconstitutional act is not a law, it confers no rights; it imposes no duties; it is, in legal contemplation, as inoperative as though it had never been passed.” According to Hart, a full blown system of law must be equipped with more than mere rules, since these are only “concerned with the actions that individuals must or must not do”, while secondary meta rules that have the primary rules as their subject matter help to “specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.”24 Thus, while primary rules spell out the obligations of the individual, secondary rules help courts to resolve disputes over the application and interpretation of those primary rules and may therefore be classified as rules of recognition. However, the important aspect that distinguishes positivism from natural law is the fact that the law and morality are viewed as strictly separate. According to Klaus F, the definition of law must be completely free from moral notions25, while Hart questions whether law should be conceptualized as coercive mandates or moral commands and concludes that there may be no moral justification mandated through legal rights and duties26. But he does not completely dismiss the moral aspect, he admits that in certain cases, a determination of the validity of a legal rule may involve its compatibility with moral values.27 The Positivist theory also allows for judicial interpretation of the law which may even extend to the evolving of new statues where necessary. The application of the law to an individual case could form the precedent for a general rule of law. As explained by Raz, “Many legal systems recognize that both rules and principles can be made into law or lose their status as law through precedent.”28 Therefore, there is room for interpretation in some cases. Applying the principle of positivism to the case of Riggs v Palmer28, the decision of the Court to eschew promulgated law and set a new precedent may be seen to be a function of its discretion in interpretation, rather than any moral basis. Dworkin however, rejects Hart’s positivist approach that is based on the rules of recognition and adopts a combined approach that combines jurisprudence and adjudication. He rejects the concept of judicial discretion as being inclusive of the facility of formulating new laws, but views it as being restricted to the determination of legal principles in accordance with the existing laws.29 He rejects the social rules basis of the theory and states “…two people whose rules differ ... cannot be appealing to the same social rule, and at least one of them cannot be appealing to any social rule at all"30 Hart states that all rights are reducible to one basic fundamental right, which is the right of all men to be free. However, unlike Dworkin, he does not subscribe to the view that international law such as that involving human rights form the basis of an effective legal system. He points out ascribing a moral basis to the execution of law results in too many ambiguities and makes it difficult to set out well defined limits, which can however be successfully implemented within a particular social context. Hart points out that international laws may lack the secondary rules of recognition that create well defined frameworks for the execution of jurisdictional aspects that are involved. Therefore, administration of international law may be difficult and international legal tribunals will find it difficult to take legal action against erring nations. According to Feldman, “rights represent a balance between potentially conflicting interests, some individual, some social.” 31 The development of human rights therefore represents a political judgment about the extent to which rights may be restricted for social purposes and the extent to which such a justification would be acceptable. Such social contexts govern law that is administered according to the Positivist theory. While the rules of recognition do allow for the consideration of moral aspects in certain cases and allow for judicial flexibility and the formulation of new laws, they may not be subject to implementation on a universal basis. This may be noted particularly in the case of the Human Rights Act of 1998. The Positivist aspects of judicial interpretation are included with section 4 of the Act that allows judges to suggest amendment of an existing legislation that is found to be incompatible with the requirements of the European Convention of Human Rights. The laws of England have been formulated on the basis of common law and the system of Parliamentary sovereignty has formed the basis for the formulation and execution of law, whereby Parliament is the source of all authority.32 Therefore this has often raised the jurisdictional problems that Hart has foreseen in international law. For example, in the case of Ghaidan v Godin Mendoza33 Mr. Mendoza’s application against discriminatory treatment was granted by the Courts, however the applicant’s request that the Court make the tenancy laws universally applicable to all homosexual couples was not granted, in view of the fact that this required a violation of the Parliamentary sovereignty that dictated the formulation of legislation in the U.K. The diversity in moral beliefs renders it difficult to derive a common standard. But the single most important ground for opposition of application of a moral perspective on human rights is the difficulty in application of the rules of recognition and adjudication. In pointing out the conflicts that arise in an application of social rules to an interpolation of national and international laws, Dworkin points out that Hart’s qualification about his rule of recognition being flexible at some points in fact undermines his theory. “ If judges are in fact divided about what they must do if a subsequent Parliament tries to repeal an entrenched rule, then it is not uncertain whether any social rule [of recognition] governs that decision; on the contrary, it is certain that none does.34 Therefore the difficulty in the acceptance of a uniform rule of recognition is what Dworkin points to as the greatest difficulty in the applicability of human rights to positivist principles of law. Conclusion: As far as the issue of human rights is concerned, the conflict between universalists and relativists is based upon the former accepting a moral standard as the governing factor in execution of human rights while the relativists/positivists argue that universally valid moral truths do not exist at all. Dworkin’s theories do not fit completely into either the Positivist or the Natural mold, but the salient principle of his theory is the conception of law as a malleable system wherein a solution is pre-existent, to every problem. However the fact that he ascribes a moral perspective to every legal problem would place him more closely in the natural lawyer mold than a positivist lawyer. In special reference to the concept of human rights, Dowrkin firmly puts forth the proposition of individual rights functioning as trumps overriding the interests of the majority. This is in direct opposition to the Positivist theory which places great importance upon the social element as a determinative factor in the formulation and implementation of laws and therefore ascribes greater important to the interests of the social group. Hart’s rule of recognition allows for some flexibility in the interpretation of the law, even to the point where judicial discretion could potentially permit the formulation of new laws. This is also mandated through Section 4 of the Human Rights Act that allows for judicial recommendations on incompatibility of a UK legislation with the provisions of the European Convention on Human Rights. However Dworkin’s views do not permit the formulation of new law by the judges, although positivists argue that it may concern only the particular case involved. Dworkin’s ideas therefore follow a middle path between the two theories of natural law and positivist theory, based upon the belief that solutions to every law problem exist within the frameworks that are already in place and that it is only a matter of applying the relevant law to discover the solution to the problem. However, Dworkin’s theory is opposed to positivist theories in that it ascribes the moral basis to every legal problem. Therefore the conclusion that may be drawn is that although Dworkin also acknowledges the value of the social context in the formulation of law, this does not make him positivist enough. However the moral basis does place him firmly in the natural law camp, therefore it is concluded that Dworkin is a natural lawyer. Bibliography * A and Others v Secretary of State for the Home Department, December 8, 2005 * A v The United Kingdom (100/1997/884/1096) [Online] Available at: http://hudoc/echr.coe.int/hudoc/, application no: 25599/94 * Austin, John, 1977. Lectures on jurisprudence and the philosophy of positive law. MI: Scholarly Press. * Bentham, Jeremy, 1970. Of Laws in general. London: Athlone Press * Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, 1914. Oxford: Oxford University Press, pp 470-471. * Dworkin, Ronald, 1984. Rights as Trumps In Jeremy Waldron ed. Theories of Rights. Oxford: Oxford University Press. * Dworkin, Ronald, 1977. Taking Rights Seriously. Cambridge: Harvard University Press, pp 24-25 * Dworkin, Ronald, 1986. Law’s Empire London: Fontana, pp 225 * European Convention of Human Rights and Fundamental Freedoms. [Online] Available at: http://www.pfc.org.uk/legal/echrtext.htm * Fuller, Lon L, 1964 . The Morality of Law. New Haven: Yale University Press, pp 39 * Feldman, David, 2000. Civil Liberties and Human Rights in England and Wales. 2nd edn. Oxford: Oxford University Press, pp 6 * Hart, H.L.A., 1994. The concept of law. 2nd edn. Oxford: Clarendon Press, pp 92. * Klaus, F Per, 1996. Farewell to legal Positivism: The separation thesis unraveling In George, Robert P. The autonomy of law: Essays on legal Positivism Oxford: Clarendon Press, pp 321-334 * Karner v Austria (2003) 2 FLR 623 [Online] Available at: http://www.coe.int/t/e/legal_affairs/legal_co-operation/Family_law_and_children%27s_rights/ Judgments/karner%20-%2040016jv.chb1%2024072003e.asp#TopOfPage * Ghaidan v Godin Mendoza (2004) UKHL 30 * Mill, J.S., 1962. On liberty In M Warnock (edn) Utilitarianism” London: Fontana, pp 126-250 * Norton v Shelby County, 118 U.S. 425 (1886) * Nickel, James 1992. Making sense of human rights: Philosophical reflections on the Universal declaration of Human Rights. Berkeley: University of California Press, pp 561-2 * Raz, Joseph, 1972. Legal Principles and the limits of law 81, Yale Law Review, 823, pp 848 * Tyrer v UK 2 EHRR 1 (25/4/1978) #28 * Report of the Committee on the Rights of the Child. Violence against children in the family and in schools , pp 3. [Online] Available at: http://www.crin.org/docs/resources/treaties/crc.28/Childrenareunbeatable.pdf * Ridall, G.J. 1999. Jurisprudence 2nd edn. London: Butterworths * Riggs v Palmer (1889) 115 NY 506 * Section 3(1) of the Human Rights Act of 1998 [Online] Available at: http://www.opsi.gov.uk/acts/acts1998/80042--a.htm#3 Read More