Who cares about love when you can have philosophy instead? What is even better? Philosophy and law. I know it. You know it. Everybody loves it. There you go. Love is in the air and these words as well. Behold, February 14 marks the death of the legal scholar and philosopher Ronald Dworkin who died in 2013.
Two schools of thought
What many people don’t know: I once studied law. Not for long, but my interest in legal philosophy never disappeared. And now you get a taste of it, too.
Basically, theories of legal philosophy can be divided into two broad categories: legal positivist and natural law schools of thought.
This approach assumes that all questions concerning legislation as well as law enforcement can only be traced back to the state as a determining power. This means that all laws originate from and are legitimized by the state. Accordingly, superior moral norms or universal rights do not exist.
The term can be somewhat misleading, as it does not mean that we should all submit to a law of nature, but that man creates rules for peaceful coexistence on the basis of his nature. The decisive difference to legal positivism is that here the existence of supranational rights is justified, which still possess their validity even if a state declares them illegal.
Now, both approaches can be rightly criticized at many points, but that should not be the topic here. What is important for you are the basics, so that you can understand why Ronald Dworkin plays such a prominent role in the philosophy of law.
Interpretivism – A Third Way
In 1986, Dworkin published what is probably his most famous work, Law’s Empire. In this book, he joins a large number of critics who do not leave a good mark on legal positivist considerations – without, however, professing an explicite position on natural law. Instead, he proposes a third way: Interpretivism.
This theory of law can be divided into three central theses:
- Law is what the lawyer makes of it. This means that there is no overarching, universal legal system in the form of natural law, nor do laws represent a kind of data or fact that a state casts into legal form. Laws are always part of an interpretative process, whereby moral and legal principles are to be recognized.
- There is no artificial separation between law and morality. The two aspects are inseparable, as each society creates laws based on its moral concepts.
- Laws are not an inherent part of nature. Likewise, legal values do not exist outside the practice of law per se. A natural law system of superordinate, universal and all-time valid values therefore does not exist.
What does this mean in practice?
Interpretivism can be seen as a kind of reconciliation between legal positivism and natural law. While laws are still based on legal systems within a specific society, these laws can still be unjust.
Dworkin argues that justice is ultimately a matter of consequences. That is, in the end, it does not matter how fair the process of lawmaking was if, as a consequence, some people are harmed by it and their options for agency are diminished. Accordingly, a law may be legal in the legal sense, but still unjust in the moral sense. The interpretivist approach now tries to reconcile both aspects and, ideally, to find legal principles that combine justice and law. According to Dworkin’s conviction, it is important that no court establishes a theory of justice that is so detailed that it no longer needs improvement. Instead, these laws are to be understood more as guidelines that should serve as orientation but can also be adapted in favor of a better solution that makes more sense for the specific individual case.
Whether Dworkin has thus found the key to universal justice and happiness is, however, a different matter and will probably continue to be part of lively debates in the world of legal philosophy in the future.
My name is Nathan Reed and this short piece is part of a new series I am writing. Snapshots of philosophy on a particular date, so to speak. I will try my best to give you some new bites every notable day.