Monday, April 25, 2011

Book Review: Justice for Hedgehogs by Ronald Dworkin

Even lawyers who are not interested in ethics and morals should be fascinated by the brilliant book Justice for Hedgehogs (2011) by Ronald Dworkin.

His treatment of parliamentary sovereignty points the way for twenty-first century policy in the light of law as an interpretive concept. This contrasts to Lord Neuberger MR's recent conservative treatment of sovereignty which may leave us wondering why history stopped after the civil war, the Glorious Revolution of 1688, the Bill of Rights 1689, and the Act of Settlement 1701. Has nothing happened since? Wasn't there a Holocaust? Do people not need protection against abuses by majorities? What if Parliament abolished judicial review or the ordinary role of the courts? Neuberger refuses to test the need for change against hard cases, saying that such arguments are unreal, they involve "postulating a wholly different Parliament from that which we have ever known" and – I sarcastically interpose - everyone in Northern Ireland would cheer to that, but he adds "and, if that arose, there would presumably be a very different judiciary from that which we have ever known." Amazingly, he continues "Further, a Parliament which was prepared to prevent citizens having access to the courts would presumably be unconcerned about the rule of law, in which case questions of constitutional sovereignty would be of no real significance in practice." Well, no, not if the judges sat on their hands. The issue would have to be fought out in the streets.

For those who dislike the idea of revolution as the only answer to a moral crisis of that magnitude, Dworkin's argument is compelling. His thinking has developed since (brace yourself, I'm going to use the cliché seminal) his seminal "Taking Rights Seriously" (1977). He now sees law as a branch of politics, rather than as a system separate from but interacting with morality. The change is because Dworkin has recognised the circularity of treating law and morality as separate but interrelated systems. How would they interrelate? If that is a legal question, the answer depends on an assumption about the role of morality in reading legal material; the alternative is to assume it is a moral question. This logical difficulty, says Dworkin, is what led to the "concept of law" jurisprudence, which treated the relationship between law and morality as neither a legal nor a moral question, but as a "conceptual" one. Here the problem is that people don't agree on which propositions of law are true. That, however, is unavoidable, and Dworkin looks to an integrated network of political value to construct a conception of law. Ethics produces personal morality which produces, as a subdivision, political morality which produces, as a subdivision, law. There may be, therefore, some valid laws that are too unjust to enforce.

But I have focused here on his final chapter, while on the way Dworkin has discussed a huge range of fascinating ethical and moral questions. His aim is to demonstrate how we can coherently think about questions of values. The integration of our understanding of interpretive concepts produces a unity of values. Interpretive concepts are those about which we share a general understanding, but we may disagree about their application in particular cases. Justice, right or wrong, helping, harming, keeping promises, obligations arising from relationships, equality, liberty, democracy, and law are all interpretive. The truth of an interpretation is determined by its consistency with the two principles of dignity. The first principle of dignity is that the success of one's own life has objective importance, and, as a corollary, all lives are equally important. The second principle of dignity is that we each have personal responsibility for our own life; we must each make our own decisions and so lead authentic lives. Self-respect comes from taking our own life seriously and in that sense living well: we must strive to make our own life a successful performance by creating value in it. The two principles of dignity interact to guide ethics (how to live well) and morality (how to treat others), which in turn are mutually reinforcing: living well requires treating others well, and respect for others enhances self-respect.

That is an outline of the skeleton of Dworkin's conception of the unity of value. There have been times when, as a lawyer, I have wished that the people who write complicated statutes would reveal the whiteboard diagram which they devised to guide their drafting. So too with this book. It has to be worked at rather than skim-read. Notes have to be scribbled in margins and end pages filled with references. Yes, the first chapter serves as a travel guide to the journey ahead, but there are times when Part One (Chapters 2 to 5) slows down while Dworkin deals with anticipated challenges from academic philosophers, requiring detailed conceptual distinctions on issues that most of us, since we have bought the book, will be prepared to take on trust just for the sake of getting to his point. But it would be wrong to be discouraged by the initial labours, as once we have appreciated the book as a whole we can go back to the details. Some readers might think a glossary would have been useful, but the index is a well designed work-around.

For an indication of what you will find in Justice for Hedgehogs, here is Dworkin's essay from a recent issue of the New York Review of Books (10 February, 2011).

This wonderful book will delight anyone who wants a systematic approach to deciding what is right. It would be a dull person indeed who did not feel the resonance of Dworkin's conclusion:

"Without dignity our lives are only blinks of duration. But if we manage to lead a good life well, we create something more. We write a subscript to our mortality. We make our lives tiny diamonds in the cosmic sands."

[Update] For a critique of Dworkin’s early work on rights and principles, see Roger Scruton, Fools, Frauds and Firebrands – Thinkers of the New Left (2015), Chapter 3. Of Dworkin’s style of argument, he says:

 “ … While purporting to give a general theory of law, Dworkin’s real interest is one of advocacy, on behalf of a political position towards which, in the conservative view of things, the law is at most neutral, and in some respects deeply opposed.” 

 “… he assumed that it was never he but always his opponent who bore the onus of proof. For Dworkin, as for the writers for the New York Review of Books generally, the left-liberal position was so obviously right that it was for the conservative to refute it.”

 “… For a conservative it is a matter of common sense that constant liberalization, constant remaking of law in the image of the elite lifestyles of New York, may eventually threaten the community with harm.”

 In contrast to Dworkin’s principles, Scruton places the common law:

 “…the knowledge that we need in the unforeseeable circumstances of human life … is bequeathed to us by customs, institutions and habits of thought that have shaped themselves over generations, through the trials and errors of people many of whom have perished in the course of acquiring it. Such is the knowledge contained in the common law, which is a social bequest that could never be adequately replaced by a doctrine, a plan or a constitution, however entrenched that constitution may be in a vision of individual rights. … The common law is concerned to do justice in the individual case, not to pursue some far-reaching reform of the manners, morals and customs of the community as a whole.”

 Whereas Dworkin sees law as emerging from a political morality that is part of personal morality which in turn is a product of ethics, Scruton’s view is more recognisable:

 “…the common law of the English-speaking people … [has] been in existence for a thousand years, with precedents from the twelfth century still authoritative in our twenty-first-century courts. It has developed according to an internal logic of its own, maintaining continuity in the midst of change and welding English society together through all national and international emergencies. It has shown itself to be the motor of history and the initiator of economic change ….” 

The opposing camps – conservatives and new leftists (to follow the terminology of Scruton’s title) – have set up conceptual frameworks for working out their positions on issues. Are the positions fixed for all time? I doubt that conservatives now oppose women having the vote. If agreement can come with time, are values relative to social conditions? Not all conservatives would, I surmise, now side with Devlin against Hart on the issue of the lawfulness of homosexual practices, although many might. Some conservatives may accept laws for abortion procedures, just as some new leftists may be against them. The methods for working out positions on contentious issues do not dictate answers. Dworkin may only support legalisation of homosexual practices because of the weights he gives to the values he recognises, and Scruton may take the opposite view because of his individualised weightings. A person may be conservative in some ways and new leftist in others. Answers to social issues are individualised, even where people approach them in the same way. A vote count, or a dictator, may determine the course society will take.

What to make of all this arguing

Can a government be forced to avoid making immoral laws? Who is to say what is moral? 


One way of settling this is by warfare. In the immediate aftermath of the Second World War the trials at Nuremburg imposed penalties on leaders who had acted according to the laws of the defeated government.


As a preferred alternative to warfare, is there a way, internal to the legal system under which it exists, of constraining the acts of a government?


To some extent, if there is a written constitution, government powers can be constrained, but only if the courts have the power to declare infringing legislation and governmental actions invalid.


Dworkin’s task was to find a way of extending the courts’ powers to hold immoral laws and governmental actions invalid.


The obstacle he faced, voiced by so-called conservatives, is the interpretation of history that recognises parliament as sovereign. This means that enacted laws are valid. There is no reasoning with such a position, because it takes sovereignty to be axiomatic.


Equally stubborn is Dworkin’s stance: laws are only valid if they are both properly enacted and morally right.


The difficulty with axioms is in proving that they are correct. You don’t have to be Gödel to realise that some things just can’t be proved using the methods of argument accepted within a system. Hence, warfare.


Dworkin can only attempt to persuade us that he is right. Many of his examples used to illustrate the unattractiveness of his opponents’ positions are appeals to emotion. But, the conservatives may say, just because an outcome is unattractive doesn’t mean it is illegal.


At its highest, Dworkin’s argument is that law and morality are not separate things. They are interpretive concepts.


Why, then, are people ordinarily punished for disobeying laws that they think are wrong? When does the majority view, expressed through the government, of what is a just law, become subject to the views of a small group, such as judges?


International laws try to provide an answer, through conventions and declarations. If governments accept these by ratification, they acknowledge that the final interpretation of their laws may be decided by international courts. But governments may refuse to ratify these conventions and declarations, or may “exit” from their jurisdiction.


The effort to get governments to do what they don’t want to do really comes down to political pressure, economic sanctions, and if all else fails, the horrifying disaster of warfare.

Friday, April 08, 2011

Interpretation of unfettered powers

The granting by the legislature of unfettered powers on a court does not destroy all lawful restraint. In Lacey v Attorney-General of Queensland [2011] HCA 10 (7 April 2011) the High Court considered statutory interpretation, legislative purpose, jurisdiction, power, and the kinds of appeals that can exist.

The majority, French CJ, Gummow,Hayne, Crennan, Kiefel and Bell JJ, held that a provision saying an appellate court "may in its unfettered discretion vary the sentence and impose such sentence as to the Court seems proper" means that the appellate court must first be able to identify an error in the decision of the court below, and then the "unfettered discretion" gives the appellate court the power to do what it considers the lower court should have done [62].

The principle of legality is "the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities" [43], and "judicial findings as to legislative intention are an expression of the constitutional relationship between the arms of government with respect to the making, interpretation and application of laws" [ibid].

The distinction between a power and the jurisdiction to exercise it is such that "The power given to the Court may inform the characterisation of its jurisdiction but does not necessarily define its content" [48].

Here the jurisdiction was indicated by the heading to the relevant provision, here simply the word "appeal". This encompasses the jurisdiction, and the question is, what kind of jurisdiction does it create? [56].

The majority set out the relevant classes of appeal for present purposes [57] (footnotes omitted):

"1. Appeal in the strict sense – in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance.
2. Appeal de novo – where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.
3. Appeal by way of rehearing – where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance."
Here the appeal was of the third kind [60] where the jurisdiction arose once the appellate court determined that an error had occurred in the court below.

Heydon J dissented, holding that the appellate court had first to decide whether it disagreed with the sentence imposed by the lower court to the extent that interference was merited, and if it did, then to vary the sentence in accordance with its perception of what was appropriate [94].

So the difference here was in practical terms about which sort of appeal was created by the legislation, and this difference was reflected in different use of legislative materials (here, speeches in Parliament). The majority noted [61] (footnote omitted):

"The Minister's words ... cannot be substituted for the text of the law, particularly where the Minister's intention, not expressed in the law, affects the liberty of the subject. In any event the Minister's Speech left open the question of the content to be given to the word "appeal" and thereby to the jurisdiction conferred upon the Court."

The last thing I want to do is to reveal my unsubtle mind, but I must be frank and admit I find the distinction between the first and third classes of appeal as described by the majority rather elusive, apart from the possible add-ons in the third. This, I trust, is the judges' fault, not mine. More clarity in future please.

Thursday, April 07, 2011

Dangerous hypotheticals

One of the common judicial rear-protecting stratagems is to reason in the form "even if I'm wrong, I'm right."

That is, a decision on the basis of particular assumptions would be the same if those assumptions were wrong.

For example, if evidence is ruled admissible on the basis that there was no impropriety in the way it was obtained, a judge may say that even if the alleged impropriety had existed the evidence would still have been excluded.

I criticised that sort of reasoning a while ago: "Shaheed balancing: three propositions" [2004] New Zealand Law Journal 475. So did the Chief Justice last month, when with Blanchard, Tipping and McGrath JJ she delivered the reasons for granting leave to appeal in Hamed v R [2011] NZSC 27 (24 March 2011) at [15]:

"[15] Although the Court of Appeal indicated its view, in application of s 30 of the Evidence Act, that all the evidence should be admitted even if unlawfully obtained or obtained in breach of s 21 of the New Zealand Bill of Rights Act, we have some doubts as to whether it was in a position to express a view on the proportionality of exclusion. An assessment of this kind requires the gravity of the infringement to be carefully balanced against the benefits of admission of the evidence. Since the Court of Appeal took the view that there was no infringement, it was an unnecessary and perhaps artificial exercise for it to undertake the s 30 assessment in respect of the evidence it considered to have been lawfully obtained under s 198 warrants."
The misuse of hypotheticals is quite common. The Supreme Court did it itself in a passage that I have only now noticed: in Condon v R[2006] NZSC 62, an important decision on the status of the right to a fair trial, noted here in August 2006. In its penultimate paragraph the Court says [89]:

"After considering all of these matters, we have not been persuaded that the outcome of the trial would necessarily have been the same if Mr Condon had been legally represented. In our view there was therefore unfairness in the trial and accordingly a substantial miscarriage of justice has occurred."
The trouble here is that the result if there had been no error (ie if legal representation had been obtained), that is, if the trial had been fair, is irrelevant to the question of whether the trial had been fair. If the trial was unfair the conviction had to be quashed, regardless of the strength of the prosecution evidence. If an error at trial caused a real risk that the jury would not be impartial, that would render the trial unfair. A partial jury could nevertheless reach a correct verdict, but it would still be a partial jury delivering a verdict at an unfair trial.

On this point the Court had reasoned better in Sungsuwan v R [2005] NZSC 57, which was noted here in August 2005, and I observed that the majority of the Privy Council in Howse v R (New Zealand) [2005] UKPC 31 had fallaciously asked what course the trial would have taken if the relevant errors had not occurred. The way to avoid this artificial exercise is to ask, given that the errors occurred, what was their effect on the fairness of the trial.

In Sungsuwan the effect of the error on the verdict was a sufficient, but not a necessary, condition for a finding that the trial was unfair. It is one of the ways in which unfairness may be manifest. Another is where partiality existed although the verdict was inevitable. The sufficient condition should not be treated as if it was a necessary condition, as occurred in Matenga v R [2009] NZSC 18 at [31] footnote 39 where the Court defined a substantial miscarriage of justice as one which affects the result of the trial.