Tuesday, 26 February 2013

Ronald Dworkin, Tom Bingham and the Rule of Law

Modern jurisprudence has lost one of its most renowned intellectual heavyweights. Ronald Dworkin was the legal philosopher who really challenged HLA Hart’s “Concept of Law”, and in so doing, shaped many theoretical debates from the 1970s onwards.
As an undergraduate, I did not subscribe to Dworkin’s beliefs. I must confess that it may well have been largely due to my inability to really grasp his arguments, and nail down how his views changed over the years. This is not a flaw in his writing; I am not sure I could promise I read his books with anything like the requisite diligence. As a full time working chap, I was delighted to come across this piece, which outlines the Hart v Dworkin debate; although I would caution that I think Shapiro’s proselytising at the end may go so far as to his view on what the debate is, not just his view in the debate.
Dworkin believed moral principles were part of the law and any theory of law had to account for them. Sometimes law runs out, and morality plugs the gaps. I hope I’ve not simplified too brutally.
I prefer, where possible, to keep law and morals separate (not in my day job, of course). As I’ve discussed before, what is legal and what is good form are not one and the same. I do not know how helpful it is to get bogged down in typographical issues of what can therefore be ‘law’ or (as Finnis would have it) the central case of law. I prefer to identify law, and then decide if it’s any good.
Which reminds me of a book by another legal superstar, Lord Bingham. In The Rule of Law, Bingham argues for a ‘thick’ ‘Rule of Law’. The rule of law, or the principle of legality, is a nebulous concept that many different authors have ascribed many different meanings. At its core, it’s about all people being subject to clear rules, applied by an independent judiciary. In this thin meaning, it is a sword that can cut both ways. It is feasible to have malicious, discriminatory laws that conform to the definition[1]. Bingham argues for a ‘thick’ definition, that includes the substantive protection of Human Rights.
For all that I disagree, I have sympathy with his view. Bingham had such an enormous impact on human rights protection in the UK, and if I were him, I’d include ‘human rights protection’ as part of my definition of ‘breakfast cereal’, never mind ‘the rule of law’. My point remains, however, that as the bare legality principle can be conceptually distinguished from the substantive protection of human rights, it should be. In legal theory, I don’t want catch-all handles. The more elements to a definition, the more utopian and inapplicable the definition becomes.

[1] And this is what Joseph Raz would tell you the Rule of Law is. 

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