Response to Dworkin

The problem

The success of Dworkin’s argument seems to hinge on this question: is it appropriate for judges to accept principles as legally binding when no “other” specific rules apply? If the answer is “yes,” then principles, despite being murkier then law, are given the same weight as law, provided that no specific laws apply. The upshot? Law remains a coherent whole and lives to fight the nominalists another day. If the answer is “no” then either some other standard must discovered so that judges can adjudicate these kinds of cases or alternately, if there is no standard, then we should simply recognize the law for what it is; the defunct product of a forced marriage between miscellaneous parts. Dworkin, of course, answers yes to the above question and goes on to argue that legal principles are both accessible to judges and that recourse to them beats the alternative; naked judicial discretion. While upgrading principles to the status of “actual law” makes law “as a whole” less firm and predictable, at least it hems in judicial discretion with longstanding principles.

If the choice is then between naked judicial discretion or discretion guided by principles, I reluctantly side with Dworkin. But I’m reluctant because I think Dworkin’s position forces us to be complicit in a legal fiction, which is, that while he recognizes a difference between rules and principles, he expects (in cases where specific rules do not apply) courts to apply some cosmetics and brush over the differences between the two. But rules and principles are not the same and he acknowledges this when he says, “It is true that generally we cannot demonstrate the authority or weight of a particular principle as we can sometimes demonstrate the validity of a rule […]” (p. 59). It is then an odd situation that while the law deliberates on what exactly the law is, we hold defendants hostage, and upon discerning what the law is (after all of the relevant legal principles have been ferreted out) proudly pronounce a verdict, as if the court’s sudden epiphany should have been known to the defendant all along. There are, I think, other problems with the Dworkin’s position, but in the remaining space I want to propose a solution and get your thoughts on it.

A Solution

Suppose that as society evolves with time, we develop an institutions means of handling the so-called furry edges of the law? We might, for instance, begin by creating another tier in our legal system exclusively designed to handle these sorts of cases. Here’s how it might work. A regular court, confronts a case like Riggs v. Palmer. Upon realizing that no law applies, the court turns the case over to our new court, which is designed to handle such cases. Trained specifically about legal principles, the justices of this new court decide the outcome of the trial based purely on a review of principles and arguments by the defense and the prosecution. If the verdict results in innocence, then nothing more comes of the case. If it results in guilt, however, then the defendant receives a symbolic censure. The heir in Riggs case, for instance, would still receive his inheritance but confront public shaming when the verdict became public knowledge. Of course, the guilty verdict would signify that while a rule did not apply to the defendant, the defendant nonetheless violated a certain moral or legal principle. That legal principle, which was not adequately represented in law, would then be sent to the legislature (a state legislature for cases tried in state courts and likewise for federal) in the form of a bill. With any luck, the bill would become law and a new rule representing that principle would become codified and binding. The beauty of this solution is that it eliminates the need for a legal fiction that has a distorting effect on the law. Either the defendant did violate the law or he did not, and because we recognize the law in those black and white terms, we don’t have to force the law to extend where it naturally does not. And this forges a kind of dialectic in legal field between two sets of intuitions that overtime allow legal and moral principles to organically grow and develop until finally they reach the status of mature law. Of course this idea would radically alter the preexisting court system, reduce workloads and generally streamline the process. Further, the advantage to the defendant is that he is warned of what the legal principle is without at the same time being punished by ex-post-facto law. In conclusion, I do find my idea more appealing than Dworkin’s but I’m also aware of that old adage, “The devil is in the details.” Hopefully the problems with my model are manageable and nothing that a little exorcism can’t fix.