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(5) Philosophy of Law

 The History of Liberalism (Video)

Liberalism: The Life of an Idea - Edmund Fawcett

Liberalism

UNCERTAIN FUTURE

 Liberalism

His rights thesis is based on a form of liberalism that derives from the view that ‘government must treat people as equals’. It may not impose any sacrifice or constraint on any citizen that the citizen could not accept without abandoning his sense of equal worth. His analysis of political morality has three ingredients: ‘justice’, ‘fairness’, and ‘procedural due processes. ‘Justice’ incorporates both individual rights and collective goals which would be recognized by the ideal legislator dedicated to treating citizens with equal concern and respect. ‘Fairness’ refers to those procedures that give all citizens roughly equal influence in decisions that affect them. ‘Procedural due process’ relates to the correct procedures for determining whether a citizen has violated the law.

 

Upon this foundation of political liberalism, Dworkin has launched numerous forays against, for example, the enforcement by the criminal law of private morality, the idea of wealth as a value, and the alleged injustice of positive discrimination.

His purpose is to ‘define and defend a liberal theory of law’. And this is the mainspring of his assault on positivism, conventionalism, and pragmatism. None of these theories of law provides an adequate defense of individual rights. It is only ‘law as integrity’ which affords a suitable defense against the advance by instrumentalism upon individual rights and general liberty.

A key - controversial - component of Dworkinian legal theory is its claimed affinity to literary interpretation. When we attempt to interpret a work of art, Dworkin argues, we seek to understand it in a particular way. We try to portray the book, movie, poem, or picture accurately. We want to establish, as far as we are able, the intentions of the author in a constructive manner. Why did Henry James choose to write about these particular characters? What was his purpose? In answering these sorts of questions, we characteristically attempt to give the best account of the novel we can.

Law claims Dworkin, like a novel or a play, requires interpretation. Judges are like interpreters of a developing story. They acknowledge their duty to preserve rather than reject their judicial tradition. They therefore develop, in response to their own beliefs and instincts, theories of the most constructive interpretation of their obligations within that tradition. We should therefore think of judges as authors engaged in a chain novel, each one of whom is required to write a new chapter which is added to what the next co-novelist receives. Each novelist attempts to make a single novel out of the previous chapters; he endeavors to write his chapter so that the ultimate result will be coherent. To accomplish this, he requires a vision of the story as it proceeds: its characters, plot, theme, genre, and general purpose. He will try to find the meaning in the evolving creation, and an interpretation that best justifies it.

 

Law as integrity

 

As a constructive interpreter of the preceding chapters of the law, Hercules, the superhuman judge, will espouse the best account of the concept of law. And, in Dworkin’s view, that consists in what he calls ‘law as integrity’. This obliges Hercules to enquire whether his interpretation of the law could form part of a coherent theory justifying the whole legal system. What is ‘integrity’? Dworkin offers the following description of its important elements:

 

[L]aw as integrity accepts law and legal rights wholeheartedly . . . It supposes that law’s constraints benefit society not just by providing

predictability or procedural fairness, or in some other instrumental Law as interpretation way, but by securing a kind of equality among citizens that makes their community more genuine and improves its moral justification for exercising the political power it does. . . . It argues that rights and responsibilities flow from past decisions and so count as legal, not just when they are explicit in these decisions but also when they follow from the principles of personal and political morality the explicit decisions presuppose by way of justification.

 

The collective application of coercion is defensible only when a society accepts integrity as a political virtue. This enables it to justify its moral authority to exercise a monopoly of force. Integrity is also a safeguard against partiality, deceit, and corruption. It ensures that the law is conceived as a matter of principle – addressing all members of the community as equals. It is, in short, an amalgam of values which form the essence of the liberal society and the rule of law, or, as Dworkin, has now called it, ‘legality’.

 

Why do we value the law? Why do we respect those societies that adhere to the law and, more importantly, celebrate their observance of those political virtues that characterize states ‘under law’? We do so, Dworkin suggests in his more recent work, because, while an efficient government is laudable, there is a greater value that is served by legality. A concern with the moral legitimacy of the law is a primary element of Dworkin’s legal philosophy. It is based, in large part, on the rather imprecise concept of ‘community’ or ‘fraternity’.

 

A political society that accepts integrity becomes a special form of community because it asserts its moral authority to use coercion. Integrity entails a kind of reciprocity between citizens, and an acknowledgement of the significance of their ‘associative obligation’. A community’s social practices spawn genuine obligations when it is a true, not merely a ‘bare’, community. This occurs when its members consider their obligations as special (i.e. applying specifically to the group), personal (i.e. flowing between members), and based on the equal concern for the welfare of all. Where these four conditions are satisfied, members of a bare community acquire the obligations of a true one.

 

Dworkin constructs his idea of political legitimacy upon this notion of a true community. Political obligation, he argues, is an illustration of associative obligation. To generate political obligations, a community must be a true community. It is only a community that supports the ideal of integrity that can be a genuine, morally legitimate, associative community – because its choices relate to obligation rather than naked force.

 

Comparing the judicial function to the process of literary criticism accentuates the positive portrayal of law and the fundamental role of judges within it. And Dworkin’s conception of a political community as an association of principle is a powerfully attractive one. It is a condition which few societies will achieve, but to which, one hopes, many aspire.

 

Rights and justice

 

Legal philosophy is inconceivable without an examination of the fundamental ideas of rights and justice. Rights, legal and moral, pervade the law and legal system, and are thus a central concern of jurisprudence. And the ideal of justice is both a vaunted virtue of domestic legal systems and, in its claims of universality, aspires to transcend law itself.

 

Individuals and groups are nowadays quick to assert their right to almost anything, and are no less adroit in claiming that their rights have been violated. Increasing pressure is put on governments and international organizations to safeguard and advance the rights of women, of minorities, and of citizens in general. The enactment of bills of rights in many countries has imposed new duties on courts to recognize rights that are either explicitly or implicitly protected.

 

What is a right? Is there a distinction between my rights as recognized by the law, and rights that I believe I ought to have? What of the problems generated by the escalating variety of human rights that individuals demand? Is it appropriate to insist on such rights when – in the case, say, of the right to work or the right to education – they entail considerable public expenditure?

 

While legal theory seeks answers to some of these questions, its chief preoccupation has been to define the concept of a right, and to develop theories to support or explain the nature of rights, and how competing rights are to be reconciled. There are two major theories of rights. The first is known as the ‘will’ theory, and holds that, when I have a right to do something, what is effectively protected is my choice whether or not to do it. It accentuates my freedom and self-fulfillment. The second theory, known as the ‘interest’ theory, claims that the purpose of rights is to protect, not my individual choice, but certain of my interests. It is generally regarded as a superior account of what it is to have a right.

 

Those who espouse this theory raise two main arguments against the will theory. First, they refute the view that the essence of a right is the power to waive someone else’s duty. Sometimes, they argue, the law limits my power of waiver without destroying my substantive right (e.g. I cannot consent to murder or contract out of certain rights). Secondly, there is a distinction between the substantive right and the right to enforce it. Thus children clearly lack the capacity or choice to waive such rights, but it would be absurd, they say, to argue that therefore children have no rights.

 

Hohfeld

 

The springboard for any analysis of rights is normally the well-known analysis by the American jurist, Wesley Hohfeld (1879–1918). He attempted to elucidate the proposition ‘X has a right to do R’ which he argued could mean one of four things. First, it could mean that Y (or anyone else) is under a duty to allow X to do R; this means, in effect, that X has a claim against Y. He calls this claim right simply a ‘right’. Secondly, it might mean that X is free to do or refrain from doing something; Y owes no duty to X. He calls this a ‘privilege’ (though it is often described as a ‘liberty’). Thirdly, it could mean that X has a power to do R; X is simply free to do an act which alters legal rights and duties or legal relations in general (e.g. sell his property), whether or not he has a claim right or privilege to do so. Hohfeld calls this a ‘power’. Finally, it might suggest that X is not subject to Y’s (or anyone’s) power to change X’s legal position. He calls this‘immunity’.

 

Each of these four ‘rights’, Hohfeld argues, has both ‘opposites’ and ‘correlatives’ (i.e. the other side of the same coin). In other words, to use Hohfeld’s own example, if X has a right against Y that Y shall stay off X’s land, the correlative (and equivalent) is that Y is under a duty to keep off the land. A privilege is the opposite of a duty, and the correlative of a no-right. Hence, whereas X has a right (or claim) that Y should stay off his land, X himself has the privilege of entering on the land, or, in other words, X does not have a duty to stay off.

 

Claim rights (i.e. rights in the ordinary sense) are, Hohfeld maintains, strictly correlative to duties. To say that X has a claim right of some kind is to say that Y (or someone else) owes a certain duty to X. But to say that X has a certain liberty is not to say that anyone owes him a duty. Thus, if X has a privilege (or liberty) to wear a hat, Y does not have a duty to X, but a no-right that X should not wear a hat. In other words, the correlative of a liberty is a no-Hohfeld’s

  

Hohfeld’s scheme of ‘jural relations’

 

Opposites – right - no-right; privilege-duty; power – disability; immunity - liability

 

Correlatives - right – duty; privilege-no-right; power –liability; immunity -disability

 

In other words, to use Hohfeld’s own example, if X has a right against Y that Y shall stay off X’s land, the correlative (and equivalent) is that Y is under a duty to keep off the land. A privilege is the opposite of a duty, and the correlative of a no-right. Hence, whereas X has a right (or claim) that Y should stay off his land, X himself has the privilege of entering on the land, or, in other words, X does not have a duty to stay off.

 

Claim rights (i.e. rights in the ordinary sense) are, Hohfeld maintains, strictly correlative to duties. To say that X has a claim right of some kind is to say that Y (or someone else) owes a certain duty to X, but a no-right that X should not wear a hat. In other words, the correlative of a liberty is a no-right. Similarly, the correlative of a power is a liability (i.e. being liable to have one’s legal relations changed by another), the correlative of an immunity is a disability (i.e. the inability to change another’s legal relations).

 

This analysis has been extremely influential, even though it suffers from certain limitations. All four of Hohfeld’s rights (which, in modern accounts, are usually called claim rights, liberties, powers, and immunities) are rights against a specific person or persons. But it does not seem to be true that, whenever I am under some duty, someone else has a corresponding right. Or vice versa. Can I not have a duty without you (or anyone else) having a right that I should perform it. Thus, the criminal law imposes certain duties on me (say, to observe the rules of the road), but no specific person has a correlative right to my performing these duties. This is because it is possible for there to be a duty to do something which is not a duty owed to someone. For example, a police officer is under a clear duty to report offenders; but he owes this duty to no one in particular, and, hence, it gives rise to no right in anyone.

  

And even where someone owes a duty to someone to do something, the person to whom he owes such a duty does not necessarily have any corresponding right. Thus, a teacher has certain duties towards her students, but this does not necessarily confer any rights upon them. Similarly, we acknowledge our duties to infants or animals; yet many would claim that it does not follow from this that they have rights. On the other hand, an advantage of a theory of rights based on correlativity is that the claimant of a right to, say, employment, is compelled to identify the party who is under a corresponding duty to find him a job!

 

Rights theory

 

We live in the age of rights. Human rights, animal rights, moral and political rights play a leading role in public debate. But in addition to right-based theories, some moral and legal philosophers adopt either duty-based or goal-based theories. The differences between the three are worth noting, and may be illustrated as follows. You are opposed to torture because of the suffering of the victim (this is rights-based), or because torture debases the torturer (duty-based), or you may regard torture as unacceptable only when it affects the interests of those other than the parties involved (utilitarian goal-based).

 

Ronald Dworkin’s theory of law is underpinned by his rights thesis. Rights are trumps. The right to equal concern and respect is fundamental to human dignity and to a fair society. Equality is assigned primacy over liberty. And the ideal of equal rights has had a spectacular impact in numerous societies; think of the Civil Rights movement in the 1950s in the United States, and the collapse of apartheid in South Africa. Constitutional change has been wrought through the strength of legal and moral argument based on the relatively uncomplicated concept of human equality.

 

The concept of human rights has acquired a prominent place in contemporary political and legal debate today. Turn on the news or read a newspaper: issues of human rights are ubiquitous. The idea rests on the claim that each of us as a human being, regardless of our race, religion, gender, or age, is entitled to certain fundamental and inalienable rights – merely by virtue of our belonging to the human race. Whether or not such rights are legally recognized is irrelevant, as is the fact that they may or may not emanate from a ‘higher’ natural law.

 

The acceptance by the United Nations, in the aftermath of the Holocaust, of the Universal Declaration of Human Rights in 1948, and the International Covenants on Civil and Political Rights, and Economic, Social and Cultural Rights in 1976, reveals a dedication by the community of nations to the universal conception and protection of human rights.

 

Human rights have passed through three generations. The first generation were mostly the negative civil and political rights as developed in the 17th and 18th centuries by English political philosophers like Hobbes, Locke, and Mill. They are negative in the sense that they generally prohibit interference with the right-holder’s freedom. A good example is the First Amendment to the American Constitution, which makes it unlawful for the legislature to restrict a person’s freedom of speech.

 

The second generation consists in the essentially positive economic, social, and cultural rights, such as the right to education, food, or medical care. The third generation of human rights is primarily collective rights which are foreshadowed in Article 28 of the Universal Declaration which declares that ‘everyone is entitled to a social and international order in which the rights set forth in this Declaration can be fully realized’. These ‘solidarity’ rights include the right to social and economic development and to participate in and benefit from the resources of the earth and space, scientific and technical information (which are especially important to the Third World), the right to a healthy environment, peace, and humanitarian disaster relief.

 

Justice

 

The law is frequently equated with justice. Courts are designated ‘courts of justice’, their buildings flamboyantly emblazoned with the word itself, or its symbolic representations of equity and fairness. Governments create ministries of ‘justice’ to oversee the administration of the legal system. Alleged offenders are no longer charged or prosecuted, but ‘brought to justice’. But caution is required. The law occasionally deviates from justice. Worse, it may actually be an instrument of injustice, as in Nazi Germany or apartheid South Africa. Though the law may, in virtuous societies, aspire to justice, it is mistaken to bracket the two together.

 

Justice, in any event, is a far from simple concept. Most discussions of the subject begin with Aristotle’s claim that justice consists in treating equals equally and ‘unequal’s unequally, in proportion to their inequality. He distinguished between ‘corrective’ justice (where a court redresses a wrong committed by one party against another), and ‘distributive’ justice (which seeks to give each person his due according to what he deserves). Distributive justice in Aristotle’s view was chiefly the concern of the legislator. But he does not tell us what justice actually is.

 

We gain somewhat clearer guidance from the Romans. The Corpus Juris Civilis is the body of civil law codified under the order of the Emperor Justinian (c.482–565). Justice is there defined as ‘the constant and perpetual wish to give everyone that which they deserve’. And the ‘precepts of the law’ are stated to be ‘to live honestly, not to injure others, and to give everyone his due’.

 

These expressions, though fairly general, do contain at least three important overlapping features of any conception of justice. It conveys the importance of the individual; secondly, that individuals be treated consistently and impartially; and, thirdly, equally.

 

The significance of impartiality as a key element of justice is often depicted in material form as Themis, the goddess of justice and law. She typically clutches a sword in one hand and a pair of scales in the other. The sword signifies the power of those who occupy judicial positions; the scales symbolize the neutrality and impartiality with which justice is served. In the 16th century, artists portrayed her blindfolded to emphasize justice is blind: resistant to pressure or influence.

 

Equality seems helpful in our search for a satisfactory concept of justice. Treating equals equally and unequals unequally have a certain appeal – provided we can agree on objectively ascertainable and relevant grounds for distinguishing between individuals. One criterion might be their different needs. Elizabeth is rich, James is poor. Would a reasonable person object to providing resources to him rather than to her? One might if the cause of James’ poverty is his profligacy and extravagance. The principle of need is therefore not without difficulty.

 

What of desert? Can justice be made to turn on what individuals deserve? It is often said that someone got his ‘just deserts’, suggesting that since Doris worked hard, she deserves her promotion over Boris. But Boris may lack Doris’s drive because he has to support several dependants and fatigue is an impediment to his commitment to his job. Since he lacks complete control over his depressing domestic predicament, basing justice on desert could actually generate injustice!

 

 

Justice between individuals is no less problematic than the challenge of social justice: the establishment of social and political institutions to slice the cake fairly. Modern accounts of justice are inclined to focus on how society can most fairly distribute the burdens and benefits of social life. One especially influential theory is that of utilitarianism, and its modern alternative, the economic analysis of law.

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