Words, Pencils...aw, the whole kit n kaboodle: HPLL
Sorry it is so long, and I know I didn't get it in by midnight but still two in this short of time, and this late at night...Hell, I gotta get in bed! Later y'all
Heath Lail
Philosophy of Law
Rules vs. Principles: Dworkin’s Argument
After completing Ronald Dworkin’s Model of Rules article, it is clear that Dworkin separates “rules” from “principles” in a number of various ways. In describing this argument, I will begin by presenting his description of a “rule”, elaborate in short detail his definition, then contrast it with his definitive idea of “principle”. First, Dworkin says that a rule is applicable in an all-or-none fashion. He fleshes out this concise description by using the example that universally in the game of baseball, three strikes is the maximum number allotted per batter. Therefore, an umpire overseeing a game in Washington state can not randomly declare that a particular batter is to be given four strikes per his turn at bat anymore than an umpire in Nebraska may limit a batter in his game to two strikes at bat. This explanation is valid in a multitude of areas consistent with everyday life, for example: speed limits are not flexible, nor are library due dates (or class paper due dates, for that matter). Therefore, it can be said that a rule makes or busts the case in which it is applied.
Conversely, Dworkin’s first rule of “principle” states that a principle may or may not be the central aspect of a case and thus, is not all-or-none in application. Revisiting the area of traffic laws, principles could be said to relate to local rather than state traffic laws or statutes, such as rural towns enacting a curfew for those 18 years and younger in that community. In fact, such a law is enacted in my hometown of Byhalia, Mississippi. In the case of the principle “no man may profit from his wrong”, Dworkin is careful to point out adverse possession as an example of man profiting from wrongdoing.
Adverse possession states “if I trespass on your land enough, some day I will gain a right to cross your land whenever I please”. This is clearly a case of one man wrongfully depriving the owner of the land his full rights to said piece of land, thereby profiting through his own less than perfectly moral actions.
The second distinctive point of Dworkian “rule” is the inclusion of exceptions, which are “exhaustively articulable” or simply stated, quite malleable when used in arguments.That makes rules rather slimy when attempting to pin down situations where they can not be maneuvered around by legal means or otherwise. It could plausible be shown in many situations that rules are perhaps too rigid in some small aspects, while they are sorely lacking rigidity in areas of greater importance. In contrast, Dworkin pointedly stresses that principles are free from exception; in legal situations, they yield more strength and rigidity than rules. Also, a principle can be destroyed only by a principle of greater importance. This leads to the third point of contrast- the “weight” factor.
Dworkin states that rules simply lack “weight”. That said, one rule can not outweigh another in rank of importance. For example, Dworkin uses the “three strikes”baseball reference against “runners may advance on the ball”. If the “three strikes” rule were discarded, part of the governing universality of baseball would be thrown away, fundamentally changing how baseball itself is played. Yet throwing out the “runner advances” rule simply changes a small aspect of the game, leaving the nature of the game fully intact.
In response, principles do contain a certain weight to them, therefore seemingly creating a fusion of sorts between legal reasoning and moral reasoning. Finally, Dworkin points out that principles’ pedigrees alone are not sufficient to call these principles legal standards. Therefore, the author says that judges must choose whether to honor principles as legal or moral standards in handing out judgments, which leads us to the next point in the argument. Why is this distinction between rules and principles important?
Simply put, the distinction is rather important because the judge comes to an interesting intersection…are these principles to be considered legal or moral? If they choose the stance of legal standard, they could then be used to set judicial precedence, causing many repercussions in later cases. Yet, the moral argument could be equally volatile, as it is seen as nothing more than judges using moral ideals and personal discretion when the letter of the law is unclear or simply not stated. If our own moral judgments are constantly contested, why should the moral ideals of a judge be placed higher than that of his fellow man, and remain unquestioned? Dworkin then points out two distinct kinds of discretion: strong and weak.
He describes strong discretion as “no decision one makes is wrong, as long as obvious standards of rationality and fairness are observed”. Under this statement, if a judge is fair and rational, then his decision should not be contested. Weak discretion he describes as such: “where one has certain duty to apply certain standards, which in the case can’t be applied ‘mechanically’”. That places the responsibility in the hands of the one who is duty bound to the action asked of him. Now, one must ask how this differs from Hartian Positivism.
In Positivist thought, Hart says four things: One, any legal system is composed of rules that are law due to their pedigree, save the master rule, or rule of recognition. Nonmoral rules (such as judicial precedents) are instead valid, which is inapplicable to moral standards of any kind. Secondly, Hart says the status of the master rule is continued due to consistent application by judges to identify and interpret law. It has become judicial custom. Third, Hart states X has a legal obligation to do Y’s bidding only if a valid rule is applicable stating that those in X’s status must submit to Y’s request or command. Hartian Positivism concludes by stating that rules, including the master rule, have a “core of settled meaning” and are open in texture, thereby allowing judges to use strong discretion
to create new law or amend a previous law. Hart differs from Dworkin by saying first that there is a “master” rule, because under Dworkin, rules lack weight and as such, are all equal. Dworkin also says that rules are all-or-nothing, and that conflicts with Hart’s comments concerning discretion by judges in applying rules. In discussion of possible ramifications of asking if legal parties have rights or duties before court judgement, two answers presented themselves.
First, principles are powered by the sense of appropriateness being sustained by the courts, and were not created as part of a particular decision of the legislature or a court, states Dworkin. Therefore, should the court cease to see a certain principle as appropriate, should it then change its’ stance on the issue at hand simply due to a different view on the subject? Secondly, Dworkin mentions, how is one to know the particular level of strength or support necessary to change a simple principle into a legal principle? After all, different social activities or actions have varying levels of support from multiple age, gender and racial groups. Now, we will examine thesefactors in the case of Riggs v. Palmer.
It appears that the view of the majority in this case reflected Dworkin’s ideals of law and adjudication. The first specific that sticks out is the strong attention given to Dworkin’s principle “rule” (for lack of better term) that states “no man shall profit from his own wrong“. On page 102, the majority judge states “Just before the murder he was not an heir, and it was not certain that he ever would be. He might have died before his grandfather….”. This statement shows that the majority felt that Palmer had no cause for action until such time that he was included in his grandfather’s will, and then became concerned that his portion of the will would be stripped from him. Secondly, they show that Dworkin’s “all-or-none” fashion applies on the same page…”My view of this case does not inflict upon Elmer any greater or other punishment for his crime other than the law specifies”. The majority says here that the law is punishing Elmer Palmer only for the murder of his grandfather, as is the law in the territory, and that his case is not special in that respect. The opinion of the dissenters, however, is different.
The dissenters use the Hartian argument that the decision in this case was based upon moral rules, not valid rules or the rule of recognition on page 103...”But the matter does not lie within the domain of conscience. We are bound by the rigid rules of law, which have been established by the legislature, and within the limits of which the determination of this question is defined.” Here, the dissenters state that moral values were levied in this case, and there was no place for morals when handing down the judgement of Elmer Palmer. This also appears to say that since the judges are X, they must follow the laws of the court and legislation, who act as Y, as the law requires equality in judgments handed down throughout the ages. In closing, I will present my personal feelings on the correct opinion: Dworkin or Hart?
I feel that Ronald Dworkin presented the more correct of the two arguments, because he argued a stronger case overall, and presented not one but both sides of the argument in well thought-out terms, with highly relevant examples and non-biased positions on each piece presented. His argument was clear, precise and intelligently written, and therefore I believe Dworkin to be more competent in arguing his case. I argue against Holmes in this case because of his sense of legal duty. The case was not whether Palmer had a legal duty to the state, but instead the case revolved around the ability of Palmer to collect goods from a evil acted upon his grandfather. Should Palmer collect the property stated in the will even though he acted unlawfully is clearly detached from the argument that he had any sort of moral duty to uphold the law’s statutes. Therefore, I think Holmes’s is not a strong argument for this particular case.
