Daina Goldenberg
University of Washington Honors Program
PHIL 414: Philosophy of Law
​
Now - this assignment is included in the archive because it represents the only true all-nighter that I spent during my time at the UW (thus far) in order to complete it. In this class the (frankly legendary) Dr. Ron Moore sought to give us an overview of the philosophical approaches to law (starting with Aristotle and the concept of eudaemonia to the Magna Carta, to discussion surrounding utilitarianism and legal positivism to legal realism and beyond). This was my first time engaging solely with philosophical texts - true, they were dense and hard to understand, but often, they seemed unnecessarily verbose as well! When I managed to labor through these texts, I realized what truly fascinating insights and conclusions they yielded - but it was a challenge. So it should come as no surprise then, that when I sat down to think through my short (5-page) midterm paper, the evening before it was due, I was in for a long night. I did not expect to start at 9PM only to complete the process at 6AM the next morning. The funny thing is - there was no way to shortcut legal philosophy; it is built upon logical arguments that must be carefully reasoned and analyzed, and though the language can appear flowery, it is also extremely intentional. I needed to approach my responses to this take-home midterm in the same way, and so I hit the books once more, trying to put forth my own opinions in a language that was consistent with what I had been reading and discussing in class. It was one of the most challenging pieces of writing I ever needed to complete in school, and by 6AM, I was deeply resentful of my time management practice. This paper was, ultimately, effective in expressing my view: however, it deeply solidified an important life skill that I vowed to carry forward - don't do philosophy at the last minute.
​
​
Here's a look at the infamous (to me) essay:
​
5. In The Model of Rules, and Law as Interpretation, Dworkin demonstrates how decision makers consider the social and political context in which laws are to be changed or created, allowing a reflective look at the environments in which previous laws were conceived. Hart’s positivist theory is more objective, and its rationale more easily deducible in logical form. However, it may not serve as a realistic model of law, as it is too rigid to yield to the idea of living, changing rules. In the United States, common law dominates legal jurisprudence and demands flexibility in establishing and maintaining law. In my brief analysis, I assert that Dworkin’s theory of law as interpretation is a stronger model for the current practice of law, by emphasizing that his core notions of policy and principle underlie the standards by which decision-makers interpret law; subsequently, acknowledgment of the power of these principles helps to refute Hart’s ideas of secondary rules as determinants of law.
​
It is useful to reconstruct elements of both Hart’s and Dworkin’s schemas of law. Hart’s neo-positivist theory is concerned with the notion of primary and secondary rules, that primary rules form a clear core which is supported by secondary rules (which include a community-accepted “rule of recognition”), which inform judicial decision-makers whom are faced with the challenge of navigating a rule’s ambiguities. He leaves it up to the judge’s discretion in applying the rules of recognition to determine a law’s course. In Positivism and the Separation of Law and Morals, Hart argues that “fiats of the will”, or subjective principles involved in legal decision-making, would simply be able to demonstrate whether a law ought to be a law, but would still lack authority in saying that the law is a law. He additionally states that,
​
Proof that the principles by which we evaluate or condemn laws are rationally discoverable, and not mere “fiats of the will”, leaves untouched the fact that there are laws which may have any degree of iniquity…and still be laws” (Hart, 2009, p. 42).
​
Dworkin circumvents Hart’s skepticism by asserting that these principles and policies are themselves creating, and not simply responding to, laws. Using the 1960 court case Henningsen v. Bloomfield Motors, Inc., concerning limited manufacturer liability, Dworkin demonstrates many balancing principles, including “freedom of competent parties to contract”, unjust enrichment, and “special obligation” on the part of the defendant (Dworkin, 2009, p.76). It is his reference to the balancing act of this court decision, as well as the concept that principles lack the “all-or-nothing” functional value of rules, that helps us accept Dworkin’s idea of principles actively carrying relative weights in judicial decisions. As Dworkin points out, “the rule does not exist before the case is decided; the court cites principles as its justification for adopting and applying a new rule” (Dworkin, 2009, p. 80).
​
Dworkin also challenges Hart’s “master rule of recognition” using Henningsen, implying that, far from being institutionally created, the fundamental principles in the case had arisen from moral ideas and standards regarding what is fair and right. He even tweaks Hart’s idea of social custom being able to establish a master rule, raising the possibility that if “the master rule says merely that whatever other rules the community accepts as legally binding are legally binding, then it provides no such test at all...” (Dworkin, 2009, p. 89). The reasonable absence of the “rule of recognition” allows Dworkin to propose principles as the guiding rules of law.
​
Having suggested Dworkin’s power of principle over Hart’s “rules of recognition”, illuminating the relationship between policies, principles and interpretation is slightly more straightforward. Dworkin focuses on “the meaning of the work as a whole”, particularly its best meaning, using the “aesthetic hypothesis” (Dworkin, 2009, p. 133). Importantly, he describes the relationship between a theory of art and theory of interpretation as “reciprocal…anyone called upon to defend a particular approach to interpretation would be forced to rely on more general aspects of a theory of art” (Dworkin, 2009, p.133). Using this claim in partnership with Dworkin’s notion of interpretation as a public entity, we may extrapolate a “general theory” of legal interpretation, derived from the common and accepted views and goals which society may advance through its constant action and interaction. These views inform the standards, the principles (and policies), upon which legal interpretation would be based.
The idea that interpretation can be effective and efficient in determining law is also suggested by Dworkin’s metaphor of interpretation as the cooperative chain novel, in which friends write harmonious chapters of a book; similarly, adjudicators decide cases in manners that are consistent with one another and enhance the process and definition of a law over time, where “the judge’s duty is to interpret the legal history he finds, not to invent a better history” (Dworkin, 2009, p. 138).
To see the strength in Dworkin’s “law as interpretation”, we can revisit the case of the “Pernicious Housewife”. During WWII, a German housewife turned her own husband in to authorities, on the grounds that he had spoken unfavorably about the Nazi party; his action was illegal in Nazi Germany (Hart, 2009, p. 37). Following the war, the wife would find herself in court, where a judge would be faced with the task of sentencing this woman who had behaved inhumanely, yet legally, during the war. Hart’s concessions reveal the gaps in his theory, requiring him either to advocate a retroactive law (which is unacceptable when considering general structures of law as proactively publicly known), or letting the woman go, proving the legal system dysfunctional. Dworkin’s theory, on the other hand, offers the flexibility to accommodate the tricky case. Interpretation allows this judge not to be “mechanical”, but to demonstrate his consistent legal philosophy and work towards the best use of the law in a complex circumstance. (Moore, 2015).
Dworkin strives to be thoroughly non-arbitrary in his system of law, by showing us what it is that judges do in the hard cases; they balance priorities and observe rules of policy and principle as these standards are followed. His system does not attract the structural flaws that Hart’s does when we consider the issue of the “pernicious housewife”. The flexibility its model allows may render it less deductively formulaic. However, this does not necessarily weaken its logical strength. It is the notion of building complex interpretations and decisions that creates, realistically, what will be read as law in the future. In accepting Dworkin’s view over Hart’s, we may view a law as a prime number, one that fits into a large set of related elements, but which, after a certain point, is no longer neatly reducible all by itself. Dworkin is correct in using interpretation and accompanying standards of interpretation (principles) to free the concept of law from a rigid formula in which it cannot be entirely satisfied and practiced.
​
4. The decision upheld in Lochner v. New York (1905) seems to demonstrate several inefficiencies of the Neo-Naturalist theory of law expounded by Lon Fuller. In rendering a 5-4 decision that invalidated a 60-hour workweek labor regulation (the Bakeshop Act), Lochner heavily applied the principle of “right to contract”, effectively “unwritten” with respect to the Due Process Clause of the 14th amendment. I will assert that in this instance, a Legal Interpretivist approach, created by Dworkin, may have yielded better results – upholding of the labor regulation – as it would likely have weighed the principles present in the case toward a more effective and humanitarian balance of interests. I will also briefly analyze Holmes’ Lochner dissent to highlight its adherence to his Legal Realist philosophy.
​
Under Fuller’s theory, law possesses an “internal morality” that justifies the individual’s adherence to the system. Neo-Naturalism utilizes the idea of law as unwritten, as including tacit expectations that further informs one’s interpretation of the law, allowing him to give the law value. In his essay Positivism and Fidelity to Law, Fuller posits:
No written constitution can be self-executing. To be effective it requires not merely the respectful deference we show for ordinary legal enactments, but that willing convergence of effort we give to moral principles in which we have an active belief (Fuller, 2009 p. 55).
​
Though Fuller’s theory and notion of constitutional interpretation grants generous flexibility in defining rules, its resulting vagueness seems to allow for an inappropriate extension of judiciary overreach when considered in context of Lochner. Justice Rufus Peckham noted “freedom to contract” as an essentially unwritten right conferred under the Due Process Clause; in his majority opinion, he stated that the baking trade “is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual” (Lochner v. New York, 198 U.S. 45). In interpreting the law, the majority regarded the fixed rule (the legislation) as flexible, by analyzing the levels of health risks posed in the trade at issue, whereas the ambiguous, penumbral area of the 14th amendment was inundated with a very powerful unwritten principle and left unrefuted by the majority. Dworkin’s notion of “law as interpretation” may shift the balance of priorities more equitably in the case.
​
Ronald Dworkin famously encourages an equitable interpretation in determining the best results in the law. Dworkin’s Doctrine of Abstract Equality establishes two important rules: 1) citizens are owed equal shares of concern, and 2) citizens are owed equal shares of respect (Moore, 2015). In this case, the vulnerable parties owed more concern were the bakery employees (their immediate health needs are arguably more important than the employer’s economic desires); this may have established a rebalancing of legal principles. The principle guiding the exercise of state powers would more likely have been given weightier consideration, whereas the bakery employer’s right to contract may have enjoyed very little relevance. It is important to re-emphasize that in Dworkin’s theory, judges are “not mechanical”; they will act as philosophers, expressing their standards as they make decisions (Moore, 2015). We cannot say conclusively, then, that the interests of the bakery employees would have been upheld if the majority judges maintained similar views despite the decreased importance of the “right to contract” principle. However, Dworkin’s theory would still have been worth pursuing for increased odds of an arguably more humanitarian result.
​