Monday, December 8, 2008

Ronald Dworkin on Affirmative Action - Part I

Focussing on two US Supreme Court decisions, Sweatt v. Painter and DeFunis v. Odegaard, Ronald Dworkin examines the constitutionality of reverse discrimination and affirmative action. This analysis is undertaken within the framework of the Fourteenth Amendment, which provides that no state shall deny any man the equal protection of its laws. The issue of the constitutionality of reverse discrimination, thereofore, hinges upon the idea, or the conception, of equality. (Chapter 9, Taking Rights Seriously)

In Sweatt v. Painter, a Texas law providing that only whites coculd attend the University of Texas Law School was struck down as being violative of the Fourteenth Amendment. In DeFunis v. Odegaard, a Jewish student was rejected from the Washington Law School because his test scores and college grades were not high enough to secure admission; however, had he belonged to a designated minority group, for whom lower scores were required for admission, he would have been selected.

Dworkin begins with an examination of the DeFunis case. He points out that the argument against reverse discrimination is simply that distinctions of race violate the right to equality of those of individual members of non-favoured groups. The right to equality itself, however, comprises of two separate rights: the right to equal treatment, i.e., the right to an equal distribution of opportunities, resources or burdens (Dworkin takes the example of one-man-one-vote); and the right to treatment as an equal, i.e., the right to be treates with the same concern and respect as everyone else.

Dworkin argues that DeFunis does not have a right to equal treatment with regard to admission into Law School, i.e., he cannot claim a seat on the ground that other people are getting seats. This is premised upon the idea that a legal education is not as vital as, say, voting, or even a primary education. DeFunis does, however, have the right to treatment as an equal. Here, however, Dworkin points out that admissions policies by their very nature will always result in disadvantage to a certain group of people. If an admissions policy is based on intelligence tests, then can less intelligent people claim that they are not being treated as equals with more intelligent people? The answer is no, because the loss to these less intelligent people is outweighed by the collective gain to the community, that is, of having more intelligent law students. Similarly, the loss to DeFunis is outweighed by the broader gain to the community of having more black students, e.g., a general reduction of inequality, a reduction of social tensions etc.

It seems, however, that this same argument can be applied to the Sweatt case. For if it can be proved that the loss to Sweatt, and others like him, is outweighed by the collective gain to the community in having more white law students, then Sweatt can be denied admission on the basis of his race.

In response to this, Dworkin argues that there are two ways of justifying collective welfare over individual rights: a utilitarian sense, i.e. when the average level of welfare in a community improves, even though the welfare of some individuals is compromised; and an ideal sense, i.e., when the society becomes more just, or moves closer to an ideal society. He points out that whereas in the DeFunis case, Washington Law School's policy can be justified on ideal as well as utilitarian grounds, Sweatt's denial of admission can be justified only on utilitarian grounds. The burden therefore lies on Dworkin to show that utilitarianism is not a good enough justification to override the individual right to equal treatment.

Dworkin shows this by poining out that when utilitarianism speaks of policy-justification on the grounds of satisfying more preferences overall, it ignores a crucial distinction: that between personal preference, i.e. a preference for certain goods and services, and external preferences, i.e. preference for the assignment of goods and services to others in a certain manner. In the instant case, as a white law aspirant, I may have a personal preference for the Texas policy as it makes it easier for me to get into Law School; and I may also have an external preference for the same, as I am racist and believe that Blacks are inferior to Whites. Dworkin argues that the presence of external preferences strikes a fatal blow to utilitarianism. This is because one of the major features of utilitarianism is egalitarianism: the idea that each citizen is treates as the equal of all others, and that the chance of his preference succeeding depends upon how important it is to him, along with how many others share it with him. However, with the undeniable existence of external preferences, the chance of my preference succeeding depends not only on the demands of the personal preferences of others taken in conjunction with mine, but also upon the respect or affection others have for me, and their preference of the manner in which goods should be allocated to me.

Therefore, Dworkin argues that as Texas' utilitarian arguments in favour of segregation are invalid, as in this case personal preferences are inextricably linked with external preferences. This is not true for intelligence-based tests, as the reason for choosing those is that intelligent lawyers are more likely to satisfy their clients' personal preferences of wealth, or winning law suits.

On that ground, Dworkin distinguished between DeFunis and Sweatt, on the ground that admissions programs that discriminate in favour of blacks can be justified both in the ideal as well as the utilitarian senses of collective benefit overriding individual rights, whereas discrimination against blacks is inextricably premised upon external preferences, and therefore must fail.

The following hypothetical, however, may serve to illustrate a possible flaw in the line of argumentation. Suppose that the State passes a law prohibiting admission to Law School for all people below five and a half feet in height. Suppose further that these people are in a minority. Now in this case, it may so happen that the majority of people above five and a half feet in height, will personall prefer this, as it improves their chances of getting into Law School. They may not be prejudiced against short people, or consider them inferior, or in anyway wish for an unequal distribution of goods to them. In such an event, external preferences are wholly absent from the picture, and therefore, the argument for prefering the ideal sense over the utilitarian sense is also no longer valid. Is such a discrimination valid?

Friday, August 8, 2008

H.L.A. Hart, Laws and Morals, and the Minimum Content of Natural Law

When laying down the framework for the basic debate between positivism and natural law, Hart thinks it necessary to clarify, first, what the debate is not about. He does not contest the truistic claim that the development of law, at all times and places, has been profoundly influenced by conventional (and, for that matter, unconventional) morals. However, that does not necessarily imply that a legal system must exhibit some specific conformity with morality or justice.

Hart's argument is essentially a response to classical natural law theorists. Such theorists believe that there is a specific system of morality, consisting of certain principles, discoverable by reason, that any law must conform with if it is to have the status of law. This viewpoint is grounded in the basic idea that Hart defines as the "teleological view of nature"; namely, that everything in nature, including man, is moving towards a teleos, a specific end. The teleos of an acorn would be the culmination of its growth into a full-fledged, healthy oak tree. The teleos of human beings is a condition of bilogical maturity coupled with an excellence of mind and character. And natural law must promote, by its directives, the achievement of this teleos.

The idea of what forms teleos for mankind has been violently disputed and debated over the centuries. Taking on from Hobbes and Hume, Hart chooses what he feels is the lowest common denominator, the basic indisputable minimum which (almost!) all people will agree on: survival, nothing more, nothing less.

There are two reasons that Hart provides for picking survival as the basic end for humankind. First, that not only do almost all men wish, above all else, to continue living, but the very structures of our thought and language (words like harm and benefit, illness and cure, disease and safety) embody this desire. Second, while specifically discussing law, we are discussing how best to govern the conduct of people who are living together; and to achieve that, they must be living in the first place!

Therefore, given that survival is an undisputed end, laws must contain certain content to make sure that that end is realised. This Hart calls the minimum content of natural law.

Therefore, Hart's idea of the minimum content of natural law can be defined in the following manner:

"Proposition 1: Given that law is a mechanism for regulating the behaviour of individuals in a social association, it must have a certain basic, minimal content in order that the association be viable.

Proposition 2: In turn, for the ssociation to be viable, the survival and continued existence of at least some of its members must be ensured.*

Proposition 3: The content which ensures such survival is called the minimum content of natural law."

Obviously, the content of such law is based on certain facts grounded in human nature and the state of human existence. Hart lists five such facts:

Human vulnerability, which entails a restriction on the free use of violence;

Approximate equality, which again, restricts the use of aggression;

Limited altruism, which requires systems of mutual forbearancec;

Limited resources, which require some system of property;

Limited understanding and strength of will, which require some form of sanctions.

These five truisms about human nature, claims Hart, makes it a "natural necessity" that law has a certain content that embodies the minimum forms of protection for persons, property and promises.

Lastly, it may be noted that Hart's idea of there being a minimum content of natural law strongly resembles Fuller's idea of a "morality of duty," and the "eight desiderata" of law that make a legal system possible.

Does Hart make an impermissible leap from the "is" of human nature to the "ought" of the minimum content of natural law while grounding this content in the human condition? One may argue that the minimum content of natural law is dependant upon survival being an end; and that, in turn, is dependant upon the five facts that Hart has pointed out; and therefore, in the latter part of the argument, the impermissible leap from fact to normative claim has taken place.

It is important to note, however, that a certain proposition may be contingent upon another, but there need not be a causal link between the two. Consider the following:

Proposition A: I will have tea with X at his home tomorrow evening at 5 PM.

Proposition B: X will be at home tomorrow evening at 5 PM.

The truth value of the first statement will change in accordance with a change in the truth value of the second statement. However, my having tea with X is not "caused" by X being at home. Therefore (as Finnis points out), while it is true that the moral content of law is contingent upon the nature of human existence, and would change as the latter changes, that does not equate to deriving morals out of facts.

* Because then no man would voluntarily cooperate within the system, and for a legal system to survive, there must be the cooperation of at least some of its members (for whatever reasons) in order to oppress the coerced majority.

Thursday, July 31, 2008

H.L.A. Hart: A Skeleton Outline

1. Law is a union of primary and secondary rules.

2. A primary rule is one that imposes an obligation or a duty.

3. A rule is said to impose an obligation or a duty when the demand for conformity is insistent and the social pressure brought to bear upon those who deviate is great.

4. A secondary rule is one that confers a power of introduces/changes/modifies primary rules.

5. There are three types of secondary rules: the rule of change, the rule of adjudication and the rule of recognition.

6. The rule of recognition is the ultimate criterion for validity in a legal system. A rule is legally valid and therefore law, if it conforms to the requirements set forth in the rule of recognition.

7. The rule of recognition itself can neither be valid nor invalid. The proof of its existene is in the fact of its acceptance.

8. There are two ways of looking at rules: the external point of view and the internal point of view. The external point of view merely analyses the convergence of habit and behaviour. The internal point of view looks at rules as standards governing behaviour, and endorses them.

9. For a legal system to exist, it is a sufficient condition that citizens take an external point of view towards primary rules; and a necessary condition that officials take the internal point of view towards secondary rules.

10. The rules of a legal system are ascertainable, yet in certain 'penumbral' cases - are indeterminate. In such cases, judicial discretion is necessary.

Sunday, May 11, 2008

Hart and the Internal Aspect of Rules: A Summary

While formulating his theory of law, it was one of Hart’s primary concerns to address the deficiencies in John Austin’s “command theory.” Austin and the positivist school viewed statements of obligation not as psychological statements, but as predictions of chances of incurring punishment or evil. To this Hart put forth two fundamental objections: first, that deviations from obligations are not only grounds for prediction that harm will follow, but also grounds for justification for that harm. And second, that evasion of obligation does not necessarily mean dissolution of the obligation itself, something that would be a necessary (and absurd) corollary of the Austinian definition.

According to Hart, rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent, and the social pressure brought to bear upon those who deviate, or threaten to deviate, is great.

It is crucial to distinguish rules from mere habits, or convergence of behaviour, and this is the point at which Hart departs from the Austinian viewpoint. Hart argues that the predictive theory looks merely at the external aspect of rules, and makes statements about habit (somewhat similar to the American legal realist concept of the bad man). However, there exists a second aspect of rules, namely, the internal aspect. Rules are viewed as standards governing behaviour, and therefore, deviation is a reason for criticism, and not merely the basis for a prediction. For Hart, therefore, the concept of rules encapsulates not only convergence of behaviour (the external viewpoint), but also the convergence of attitudes.

Using the internal viewpoint, people within the legal system judge, evaluate and criticise their conduct and that of their peers. While the external viewpoint is purely descriptive, made by an observer outside the system (“In England, they recognize as law…”), the internal viewpoint is evaluative (“It is the law that…”).

Hart connects the concept of “efficacy” with external statements about the legal system – for instance, an external observer would obviously talk about the legal system from the point of view of its practical working. Similarly, the concept of “validity” is connected with the internal statement, where rules are viewed as standards, and deviation is a reason for criticism. There is, however, a contextual connection between the internal statement of validity and the external statement of efficacy. This is because if within a legal system, internal statements cease altogether, this will have so great an impact upon efficacy, that for all practical purposes, the legal system may as well be treated as dissolved and extinct.

Having developed this concept of the internal aspect of rules, Hart now ascribes to it its place in a legal system. Law is a union of primary and secondary rules; primary rules confer obligations upon citizens, and secondary rules are directions to officials authorizing them to change, recognize (create) or adjudicate upon the primary rules. Hart argues that it is a sufficient condition that the citizenry, which is subject to the primary rules, need only take an external viewpoint towards primary rules. They may not view the rules as standards; they may not consider themselves obligated to obey them; and they may not even make a moral commitment to follow the law. All that, however, is irrelevant with regard to the existence of a legal system. All that is needed is the existence of the external viewpoint, so that the detached observer can look upon the behaviour of the citizenry, and on that basis alone, find the legal system to be in good, practical working order.

It is at the level of secondary rules that the internal aspect comes in. Hart argues that it is a necessary condition for the existence of the legal system that the officials directed to identify and apply the primary rules through the means of secondary rules, take the internal viewpoint towards those. This is so because it is the only way in which reasons or justifications of enforcing, creating or changing obligations can be given, a concept which is parasitic upon Hart’s idea of the “social rule.”

Two powerful criticisms have been made to Hart’s idea of the internal aspect of rules. The first is by John Finnis. Finnis argues that when Hart uses the idea of primary and secondary rules to distinguish a developed legal system from a primitive legal system, he is using a philosophical tool called “the central case” (an idea bearing close resemblance to the Weberian ideal type). The central case is one which, within a certain paradigm, best fulfills the characteristics of that paradigm. Finnis then argues that Hart should not have stopped at the level of the existence of the internal aspect of rules as a means of differentiating the central case from other, peripheral cases. He should have further differentiated the notion of the internal aspect itself. What this means is that there are many reasons or motivations behind people viewing rules as standards (using the internal point of view), including self-interest, a detached interest in the well-being of others etc. Finnis argues that all these are “watered-down” notions of the internal aspect of rules: the central case is the viewpoint of the moral man, the one who views the law as a moral standard. Finnis does not explain further as to why the moral man standard is to be the central case for legal systems, and this is a weakness that has been pointed out by some scholars.

The second criticism is one made by Joseph Raz. Raz argues that Hart’s dichotomy between internal and external aspects of rules commits him to a position where either one must be a detached observer commenting upon the efficacy of the legal system, or an internal actor who is endorsing the law’s moral authority. According to Raz, however, there is a third category of statements, that of lawyers, or law teachers explaining the law to others. This allows an internal statement to be made without espousing it as a normative standard; for instance, I may be a vehement opponent of capital punishment, but within the framework of my country’s legal system, I may end up writing a legal opinion with the statement, “Given the law on this point, he ought to be hanged.” The use of the word ought in this sentence does not commit me to an endorsement of the moral content of the rule itself.

This supposed contradiction in Hart’s theory of rules has been elegantly explained by Neil MacCormick. MacCormick argues that understanding, and not will, determines the internality of a statement. It is possible to understand a norm, to be able to frame judgments in terms of it, and yet remain hostile or indifferent to it. Therefore, according to MacCormick, the internal point of view should be further classified into two categories: merely an understanding of what the rule requires, and volitional commitment to upholding the rule. MacCormick concludes with the reasonable assumption that no legal system can exist without at least some people who do care about the maintenance of patterns of conduct, who do have volitional commitment towards the rule.

In summation, therefore, Hart views the internal aspect of rules as providing reasons, or justifications for criticism in case of deviation, as opposed to the external aspect, which merely predicts consequences. In a legal system, it is a necessary condition that officials take an internal view towards secondary rules. Such an internal view, however, may be restricted to only an understanding of what the rule requires, or could extend to a volitional commitment towards upholding the rule.

Monday, May 5, 2008

The Command Theory of Law: A Brief Summary, and Hart's Objections

This essay will focus on the nature and adequacy of Hart’s objections to Austin’s “command theory of law.” Austin defined the law as “the command of the sovereign, backed up by sanctions.” The three crucial components of this definition are the words command, sanction and sovereign. This essay will analyze, in turn, the scope and meaning of each of these terms, as envisioned by Austin, and Hart’s criticism of each of these conceptions.

Austin believed that law is a species of command. He further defined a command as “an intimation or expression of a wish to do or forbear from doing something, backed up by the power to do harm to the actor in case he disobeys.” Furthermore, the person to whom the command is given is under a "duty" to obey it, and the threatened harm is defined as a "sanction."

According to Hart, the idea that law consists merely of orders backed by threats is inadequate to explain modern legal systems. Modern legal systems have laws governing the formation and implementation of contracts, of wills, marriages and other executory instruments. Hart calls these types of laws “power conferring rules,” and argues that they are less in the nature of orders backed by threats, and more in the nature of rules creating a framework within which individuals can define the scope and limit of their rights, obligations and liabilities.

Hart also considers another variety of laws, laws which define the scope and limitations of judicial and legislative power, laws which confer jurisdiction upon courts and govern the functioning of governmental institutions. He argues that it is impossible to view these laws as mere orders backed by threats either.

Attempts, however, have been made to assimilate power-conferring rules within the broad ambit of orders backed by threats. According to the first of these theories, the nullity that is a consequence of not complying with the framework established by power-conferring rules is the Austininan sanction. However, Hart argues that the two are fundamentally different in nature: in a criminal statute, which is more in the nature of an order backed up by threats, the sanction is necessarily consequent upon the forbidden action (it is possible, for instance, to conceive of an order that prohibits something without imposing a sanction); however, in the case of power-conferring rules, the provision for nullity is part of the rule itself. For instance, it would be impossible to conceive of the provisions that govern how to make a valid will without conceiving that the will cannot exist without these provisions. Hart has a number of subsidiary objections as well, such as nullity not always being a source of evil (for instance, to the judge who rules without jurisdiction).

A second theory argues that power-conferring rules are not genuine laws. This theory views as all laws as directions to officials to apply sanctions in case of non-compliance. A power-conferring rule, therefore, would be viewed as a direction to the requisite official not to confer validity upon a particular transaction if the rules of procedure are not adhered to. Hart argues, however, that such a theory achieves uniformity at the high price of distorting the true nature of laws. For instance, the point of criminal law is to establish certain standards of behaviour, which the citizens are expected to conform to. Sanctions are there only as ancillary measures in case the system breaks down. It is therefore misleading to consider criminal law as directions to officials to apply sanctions. The same logic applies to power-conferring rules as well.

The second basic objection Hart has to Austin is regarding the range of application of laws. As Hart points out, the word “command” implies a top-down stable hierarchy of men, with rules being purely other-regarding. However, this is not true in modern legal systems, as legislations often have a self-binding force. In an attempt to respond to this, it has been argued that a legislator has two personalities: his legislative personality, which gives the command, and his ordinary personality, as a citizen, which is bound to obey. However, Hart argues that such a complicated device is unnecessary to explain the self-binding nature of legislation. A legislation can be viewed as a promise, which creates obligations upon the promisor. And in any event, much of legislation is done under the ambit of pre-existing rules of procedure, which bind the legislators.

Hart’s third objection to Austin is with regard to laws such as customary laws, whose mode or origin excludes them from being treated as commands. To this, it has been argued that the validity of customs depends upon tacit acceptance by the sovereign; that is, if Courts are implementing customary law, and the legislature does not repeal such laws, then this might be said to be an implied command that customary law is to be followed. However, Hart argues that absence of objection does not mean implied consent. It could equally well mean a lack of knowledge, or a lack of awareness, or numerous other reasons.

On the three grounds of content of laws, range of application, and mode of origin, Hart rejects the idea that law is merely an amalgamation of coercive orders backed up by threats.

The third important prong of the Austinian definition is the term “sovereign.” Austin defines a sovereign as “someone to whom the bulk of the given society are in a habit of obedience; and he is not in a habit of obedience to anyone.” Hart’s criticism is directed both at the idea of “habitual obedience,” and at the idea that the sovereign is an “uncommanded commander” of the society.

Hart argues that habitual obedience, which is merely convergence of behaviour, is inadequate to explain the continuity of laws. Mere habits of obedience to orders given by one legislator cannot confer on the next legislator any right to succeed the old, or to give orders in his place. Why is the law made by the successor to legislative office already law before even he has received habitual obedience? To answer this question, it becomes essential to distinguish between a habit and a rule. Rules require not only convergence of behaviour, but also convergence of attitude. That is to say, rules are viewed as standards of behaviour, where deviance is considered as meriting criticism.

Habits of obedience also fail to explain the persistence of laws. That is to say, how can a law made by an earlier legislator, long dead, still be law for a society that cannot be said to habitually obey him? Once again, this requires us to replace the notion of habits of obedience with a concept of rules that delineate rights of succession.

Hart’s final objection to Austin is that the sovereign does not possess, as Austin believed, a “legally untrammeled will.” Most modern legal systems have legal limitations upon the power of the sovereign (and this is not inconsistent with his supremacy within the legal system as the highest known legislative authority). Recognizing such a problem, Austin had argued that in democracies, it was the electorate that formed the sovereign. However, according to Hart this leads to the absurd conclusion of the “bulk” of the society habitually obeys itself. It may be argued that legislators make rules in their official capacity, rules which then apply to them in their personal capacity. However, the very notion of official capacity presupposes the existence of rules that confer such official capacity. This, therefore, is again incompatible with the Austinian idea of sovereignty.

On all these grounds, therefore, Hart rejects Austin’s “command theory of law” as sufficient to explain the legal systems of modern societies.