Dworkin favours the approach called 'integrity in law' in order to protect the values and morals of the society. By selecting the one of the two applicable principles the unused principle still remains valid whereas if there are two conflicting rules then the one invalidates the other. In the context of his theory, Dworkin puts forward his "one right answer" thesis i. e the proposition that all legal questions have a unique right answer.
He observes that the legislature in each society may pass legislation inconsistent with earlier laws. It regulates the future and thus it is taking policies into account. Policies are defined as an argument underlying a community goal, which may conflict and change and thus, the Courts should only consider the rights of the litigants. He further observes that the judiciary, unlike the legislature, will try to found its decisions on past decisions and will try to locate the gravitational law of each precedent.
In doing so, therefore, the judge must consider the principles which emanate from the precedent and attach a particular weight to the principle by making a moral judgment as to what the law is. Dworkin argues that are rules cannot determine what the law is as they are questions of fact and rules can not identify the weight that a principle may carry. Rules are only certain and clear when you presume that there will be agreement of when your interpretation of how and will something in fact be applied.
As a result, a principle needs to be allocated to discern the pattern and if applied to a series of precedences of law that look similar, the rule or principle has to be determined which is only done by making a moral judgment. This clearly illustrates the divergence in the two concepts of whether law can in fact be identified independently. Dworkin criticises Hart's rule of recognition theory on the basis that it gives powers to the judges to identify and set the criteria as to what the law is and any law that is not sufficiently certain is not, in fact, law and have the discretion to make new law by deciding hard cases.
He states that this is clearly a defect in his theory as judges have not been elected and clearly violates the principle of separation of powers by making new law. It is the role of the legislature to enact new legislation and not the judiciary. Secondly, Dworkin states that if the rule of recognition were to be correct and there is no law until it is made certain and the judge makes a decision on a particular case, then this is retrospectively made law and cannot be imposed on the defendant.
Dworkin argues that Hart does not take into account the hard cases of law in his theory and it is impossible to identify the law without making use of legal principles and internal moral judgments. I think it is also important to examine the impact that law has on the enforcement of morality and determine whether society's opinions and moral viewpoints have in fact influenced legal developments and whether we can identify law and morality as independent. Hart was a great supporter of the 'harm principle' propounded by JS Mill.
This principle is premised on the notion that the law cannot legitimately prohibit any behaviour on moral or any other ground, unless it will cause harm to another member of society. The reason for this is that Mill valued the freedom of the individual and wanted minimal state intervention as to how they conducted their lives. Hart and Mill would agree with the statement that it is 'morally wrong' for the State to enforce strongly held moral beliefs by law.
Hart claimed that Devlin was wrong to suppose that the preservation of social cohesion requires the enforcement of morality as such: 'society cannot only survive divergences from its prevalent morality, but profit from them'. This sentiment can be illustrated by imaging a typically law abiding and good citizen who regularly engages in conduct in private which is felt by the majority to be immoral but which does not harm others. This was perhaps the situation of homosexuals in the fifties.
If the person has no intention of giving up his 'immoral' conduct simply because it is illegal, then his respect for the law is diminished. By allowing the conduct by law, then he is still a law abiding citizen with no reduced respect for the law and therefore society does, indeed profit. The first issue which I will consider is the legality of certain behaviour which is generally considered to be immoral. The example I will use is that of adultery.
Although, according to most people's moral values this is highly undesirable, most would also argue that in the interest of individual freedom it should not be criminalized. A law prohibiting extra-marital affairs would not only lead to a large proposition of the population becoming criminals but would offend our sense of autonomy. It can be safely stated that most people consider adultery as a moral misdemeanour which one must reconcile with oneself but is really none of the law's business.
This example clearly supports the harm principle and rejects the principle of enforcing moral laws for the sake or morality. However, if we consider the law against bigamy, the opposite theory is supported. What harm does polygamy really do to anyone else that adultery or sex outside of marriage does not? It cannot be reasoned that family values would break down and this would harm society as surely such values can be broken by adultery or having a child outside of wedlock, and in any case, harm to the society in general is not sufficient justification for the harm theory.
Yet the average citizen would probably feel that the law against bigamy is justified on some other ground. This could perhaps be a wish not to publicly recognise what is felt to immoral. Permitting immorality is one thing but endorsing it is quite another. The public element must be defended on purely moral grounds, and in this sense, laws against bigamy and public prostitution can be defended using Devlin's theory but limiting it to laws with a public element of morality.
This seemed to be the reasoning used by the Wolfenden Report when discussing private and public morality. The one does not justify with individual freedom and the other does. However, this reasoning can only go so far. There are certain offences, such as incest, which although have no public element or cause harm to others (providing there are no genetically weak offspring) are so morally reprehensible and repulsive to most members of society that it is felt that should be prohibited purely for the sake of morality.
These examples show that none of the theories outlined above can adequately deal with commonly accepted laws in place in the UK. I believe that it is not possible to argue that the law can be identified independently of morality, which Hart clearly advocates. In my opinion, it is only when we take into consideration the reality of the judicial process and the impact of society's moral opinion on legal issues, that the purpose of law in the aim of justice and equality to all citizens becomes apparent.