Ian McLeod

Policies, Principles, Rights and Interpretation: Dworkin’s Theory of Adjudication

You will recall from the end of Chapter 4 that Ronald Dworkin (b. 1931), an American working in both England and America, is one of the most significant critics of Hart’s concept of law. We will consider Dworkin’s theory in three main stages, namely the inadequacy of viewing law as a system of rules, the importance of individual rights, and the idea that law is essentially an interpretive process, but before doing so three matters may usefully be emphasized.

English Analytical Positivism

This chapter identifies that part of legal theory which is known as analytical positivism, and considers the work of two of its leading English exponents, namely Austin and Hart. More particularly, it will show how the work of the latter remedies certain deficiencies in the work of the former.

The Natural Law Tradition

This chapter explains the evolution of the natural law tradition from Ancient Greece 10 the 18th century and shows how some of the ideas underlying this tradition have been of enduring practical significance in terms of legal doctrine.

The Protection of Human Rights and Fundamental Freedoms

This chapter considers the way in which English law deals with the protection of human rights and fundamental freedoms (a phrase which is usually abbreviated simply to ‘human rights’). More particularly, it emphasizes the position as it will be after the partial incorporation of the European Convention on Human Rights (commonly known simply as the ECHR), which will be effected when the Human Rights Act 1998 comes into force, probably during 2001. (Delays in bringing statutes into force are common: see p. 291.) However, by way of establishing the context into which the Act will be received, but without wishing to pre-empt Chapter 16’s wider discussion of the suitability of the common law as a vehicle for law reform, it will be useful to begin by illustrating the rather haphazard way in which English law has protected human rights in the past. (Although such haphazardness may continue into the future in those cases which fall outwith the scope of the Act, there is probably a greater likelihood that increasing familiarity with the ECHR will sharpen the judges’ perception of their role in protecting human rights in all cases.)

The Nature of Legal Theory: From Laws to Law

This chapter begins with a discussion of the relationship between law and legal theory and continues by clarifying some basic problems of terminology and methodology before concluding with an explanation of why it is useful to study legal theory, both from the perspective of legal practice and within the wider context of the academic study of law.

The Nature and Functions of Law

Pausing only to repeat the warning against the danger of being seduced into Procrustean beds (seep. 9), this chapter will provide an overview of two of the major ways in which legal theories can be classified, in order to provide a framework to help you relate the contents of Chapters 3, 4, 5 and 6 to each other. More particularly, you will see that one way in which legal theories may be classified is into those which belong to the natural law tradition and those which belong to the positivist tradition, while another classification proceeds according to the functions which the law, in its various manifestations, pet forms.

Legislative Interpretation in the European Court of Justice

Historically it may have been legitimate to characterize the principal distinction between common law and civil law styles of interpretation in terms of the contrast between simple literalism and purposivism. Also historically, the matter was of largely academic interest, since very few practitioners of English law would ever come across laws originating from civil law jurisdictions. However, the reception of Community law into English law has meant that the civil law style of interpretation as practised by the Court of Justice (which, for the present purposes, includes the Court of First Instance, as it did in Chapter 17), is now of immediately practical importance to English lawyers. As Lord Denning MR said in Bulmer (HP) Ltd v. Bollinger SA [1974] 2 All ER 1226: ‘It is apparent that in very many cases the English courts will interpret the Treaty themselves…. Beyond doubt the English courts must follow the same principles as the European court. Otherwise there would be differences between [the member states]… ‘ Perhaps fortunately, the English judiciary’s widespread conversion to purposive interpretation means that the gap between the two styles of interpretation has narrowed very considerably. Nevertheless, it is worth giving some attention to the Community law style of interpretation, and this chapter will do so. As a preliminary, however, it may be useful to offer some general observations on those characteristics of Community law which have the greatest influence on how it is interpreted.

Legal Regulation of Morality

Having considered the relevance of morality to the distinction between natural law and positivist theories, it is now appropriate to come down to the more immediate and specific question of the extent (if any) to which the law may properly seek to enforce individual morality. Admittedly, the central question discussed in this chapter is sometimes expressed rather differently, in terms of the legal enforcement of private morality, but this formulation is best avoided, at least as a starting point, because it assumes that there is such a thing as private morality; and, as this chapter will demonstrate, the question of the validity of this assumption may well be at the heart of the debate.

Kelsen’s Hierarchy of Norms

Having considered the English tradition of positivism in the form of both Austin’s command theory and Hart’s concept of law as a system of rules, it is appropriate to discuss what Harris terms ‘the most famous contribution to legal philosophy of our century’. (Legal Philosophies 2nd edn, 1997, p. 65.) This is t:he pure theory of law expounded by Hans Kelsen (1881–1973), an Austrian who settled in America.

Modern Interpretation in Practice

As we saw in Chapter 19, the technique which we labelled simple literalism is seriously defective and no longer characterizes the judicial approach to statutory interpretation. As we also saw, there is a greatly increased perception of the significance of the context within which words are used, and more particularly, of the purpose underlying the enactment. The contemporary approach is, therefore, sometimes called either contextualism, or, more usually, purposivism, but the alternative label of enlightened literalism is also useful, because it recognizes the evolutionary development of the modern approach, whilst at the same time clearly differentiating it from its predecessor.