30 October 2013

Dworkin and Gul Continued

This post readdresses the problem alluded to in my conclusion in 'R v Gul and Dworkin's Model': I admitted to a difficulty in applying a short paragraph in Law's Empire to R v Gul [2013] UKSC 64. This post does not go into as much depth as the topic allows, because I aim to develop the material into a (peer-review-worthy) article; if I write everything here, I preclude that option. Therefore I give just enough information to dissolve the previous difficulty and show my thought-process. This is, then, almost a long abstract for a future enquiry.

1. Dworkin's Project

1.1 The Problem Introduced

Dworkin's project is massive. He analyses law to discover its inner workings. What lawyers argue about becomes clear through his perspective. Case law records lawyers' arguments, which are theoretical disputes about law's assumed essence.

Gul illustrates Dworkin's propositions' overall truth because the lawyers disagree what principles law should uphold--legal certainty (clear statements of what is criminal) or national security (terrorists are creative and narrow crimes insufficiently protect the public). There is little attempt in Gul to disagree about what the law in question literally says: viz, uploading videos of terrorists is prohibited.

It is easy to explain a coincidence as a factual correlation, and derive conclusions from that position. (This, I think, is the problem with my previous post.) But to explain in this fashion is to use a logical fallacy, which is poor scholarship. That is, Dworkin's project must be explored and criticised in some detail before his thesis conclusively applies to law in every case. Without that analysis, one only shows there are enough similarities to suggest a relationship exists between Dworkin's words and law.

1.2 Some Exposition

The assumptions relied upon by lawyers about law's theoretical essence determine their arguments' successes. There are many such disputes. Dworkin highlights and groups these together.

2. Theoretical Differences Exposed

Some assume law is about 'plain facts':
'[Q]uestions of law can always be answered by looking in the books where the [authoritative] records of institutional decisions are kept' (p 7).
Others assume law concerns semantics--what specific words mean. This leads to the idea that law concerns interpretation.

Interpretation's role in law is generally accepted, but Dworkin shows most theories misunderstand its nature. There are two usual options:
  1. Law must be interpreted according to 'conventionalism': law rests on legal conventions--Parliament makes law and lower courts abide by higher court decisions about what laws Parliament has made (pp 114–5); or, in contrast,
  2. Law must be interpreted according to 'pragmatism': past decisions are not as important as designing law towards future goals (p 151).
These ideas twist law to look either backward or forward. Neither though, asserts Dworkin, sufficiently accounts for law's subtleties. (His criticisms and rejections are persuasive.) He proposes an alternative:
  1. Law must be interpreted with 'integrity', which allows lawyers to contrast often-competing claims of 'justice' and 'fairness' against a separate, more objective standard (pp 176–8).
'Integrity' caused the application-problems in the earlier post, 'R v Gul and Dworkin's Model'. The reason for the inadequate application in that post stems from summarising Dworkin's work too much. Of course, Dworkin spends at least a chapter on each above bullet-point but the outline here is more accurate than in my previous post.

3. Integrity, Morality, and Fidelity

When one interprets according to integrity, one may consolidate opposing principles. This goes back to 'the twinned issues of (…) morality and fidelity' (p 3). These engender all the theoretical disputes that Law's Empire aims to resolve. The next section shows how this new understanding of Dworkin may elucidate Law's Empire's application to case law.

4. Existence in Case Law: R v Gul

The problem in Gul is politically sensitive, though the opinion does not use those words. That sensitivity arises due to D's argumentation: D constructs an argument with a contentious premise right in its gut; to decide in D's favour, the SC would have to accuse British armed forces of terrorism. This creates an obvious problem: however persuasive is D, the court will be reluctant to echo that accusation.

Nonetheless--due to the above problem--Gul supports Dworkin's thesis. To clarify the problem, if the law says 'X', but morality suggests 'X' or 'Y', should the judiciary remain faithful to 'X' or implement a small change to satisfy 'Y'? This is requires further explanation.

The Terrorism Act 2000 s 1 defines terrorism and thereby creates an offence so broad that many unpredictable actions are within the statute's scope. Both parties recognise terrorism is |<----this---->| wide. D, however, argued to reduce that width to |<-this->|.

4.1 The Defendant's Logic

The relevant part of D's argument is reducible to five propositions:
  1. Terrorism's definition is too broad.
  2. Terrorism's definition is so broad, even British armed forces satisfy the crime.
  3. If British armed forces are not terrorists, then terrorism's definitional width should be reduced to reflect that fact.
  4. If terrorism is then a narrower offence, D is not within the Act's boundaries either.
  5. Therefore D is not guilty.

4.2 A Brief Jump Ahead

As a side note, there is a pertinent criticism, here. The court kept terrorism's definition wide. So D's actions were still regarded as prohibited by the Act. The SC, however, refused to accuse British armed forces of terrorism. The problem is not the SC's reluctance to follow apparent logic, but in D's presentation. D phrased a polarised argument with only two possible answers. The SC's refusal was therefore not failed logic, but an adoption of conclusions unprovided by D.

4.3 Opposing Moralities

There are three competing moralities involved here.
  1. Legal certainty: if crimes are too broad, it is difficult to know what actions will result in criminal sanctions.
  2. National safety: this value (broadly interpreted as a--naive--morality, here) involves the idea that every individual loses all their rights if terrorists take away their lives.
  3. Moreover, to accuse British armed forces of terrorism may force the government to withdraw deployed troops. The decision to withdraw is an executive decision, and the judiciary are reluctant to adjudicate on matters that properly are in the executive's remit because the British constitution demands a certain 'separation of powers'. Unless, that is, the circumstances require judicial scrutiny.
Therefore the second and third moral considerations, 'X', support terrorism's width: to narrow the crime's scope would impede national security and British political ideology. The court could have decided in favour of a competing morality, 'Y'/legal certainty (above), but rejected this. The SC remained faithful to what both parties initially agreed the law was.

5. Conclusions

After considering Dworkin in more depth and more holistically, it is clear why I thought my previous attempt failed to show Dworkin's relevance to teaching case analysis: the concepts I attributed were too imprecise because my summary was too short.

This essay shows it is difficult to exposit Dworkin's whole project with precision and over-brevity. That is not to say the task is impossible. Rather, it is to say that if one aims to design a curricula whereby Law's Empire is used as a framework for teaching case analysis, there are some important factors to consider:
  1. Dworkin examines many legal subtleties;
  2. He slowly builds his argument around these;
  3. He uses a remarkably clear structure to do so:
    1. Law is defined;
    2. Dworkin rejects the legal theories resting on that and similar definitions;
    3. Then he systematically argues for a solution, which he continually supports with examples;
  4. It may therefore only be prudent to dip into Law's Empire if students are walked through this lengthy development, which may simply involve reading the book or parts of it.
I hope this post helps students to develop their analytical case-reading skills.

Created: 29 October 2013. Version 1.0.

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