Atlantic Council

Ronald Dworkin, one of the most consequential legal philosophers in history, passed away earlier this month.

Dworkin contributed to, and was associated with a host of developments in the world of legal philosophy and jurisprudence, but perhaps one of the most lasting aspects of his legacy was his ongoing debate with the legal positivist philosopher H.L.A. Hart on the relation between legality and morality. Yale law professor Scott Shapiro summarized it thusly:

Dworkin's basic strategy throughout the course of the debate has been to argue that, in one form or another, legality is ultimately determined not by social facts alone, but by moral facts as well. This contention directly challenges, and threatens to undermine, the positivist picture about the nature of law, in which legality is never determined by morality, but solely by social practice. As one might expect, the response by Hart and his followers has been to argue that this dependence of legality on morality is either merely apparent or does not, in fact, undermine the social foundations of law.

To put my own cards on the table regarding this dispute, I side with Hart. Dworkin certainly had an idea of what his moral facts were, but not everyone shares the same moral code. As a consequence, it is a risky thing to claim that “legality is determined by morality” when there are different standards of morality in existence. What happens, after all, when Taliban judges impose their morality upon a case? What about judges in China who do the bidding of the state? Or judges in Iran who perpetrate appalling human rights abuses in the name of the Islamic Republic?

To be sure, there is a basic moral ethos that can be found in the West, and perhaps many of the readers of this article will subscribe to that ethos and will want it to be part of the law. That’s fine and good, but in order to achieve this, it might be better to engage in political campaigning and to seek legislative action that comports with one’s morality. So long as a particular law complies with a valid constitutional regime, and so long as it was enacted by freely and fairly elected legislators and signed into law by a freely and fairly elected executive, I for one would have a hard time finding that law to be invalid. We can certainly debate whether that law is moral, but that is what elections are for.

The Hart-Dworkin debate was and is no mere academic exercise. Quite the contrary; it touches on very tangible issues in the world today. Consider the case of Egypt. In December of last year, Egypt approved a constitution that made shari’a law “the main source of legislation.” This language was also present in the 1971 constitution, but the 2012 constitution goes further by listing said principles ( “evidence, rules, jurisprudence and sources”) and by giving “unprecedented powers to Al-Azhar, Sunni Islam's most respected religious school, by saying its scholars must be consulted on all matters relating to Sharia. The 1971 charter did not mention Al-Azhar.”

There are very real risks involved in making shari’a so prominent a part of the new Egyptian constitution. Egyptian judges “don’t know how to enforce law” that is based on shari’a, and there is fear that relying on shari’a could cause increased political divisions in Egypt. Additionally, many Egyptians worry that shari’a law is accessible only to “Islamic scholars” since the law is difficult to understand and is “vague” in many respects. At this crucial time in the country’s history, Egypt needs legal transparency—in addition to a democratic basis for the law—in order to help inculcate a respect for the law in the general population. But by relying on shari’a to serve as a basis for Egyptian law, the country may have opted for opacity instead. According to Hossam Eissa of the Constitution liberal Party, allowing shari’a to play so central a role in the Egyptian legal system means, among other things, that “[y]ou will never be able to predict the judges’ rule.”

It might well be unfair to say that Dworkin approved of shari’a. Nevertheless, there can be little doubt that shari’a, however vague and esoteric, represents a set of “moral facts” that determine “legality.” Wouldn’t it be better in the Egyptian case to allow for legality to be determined by “social practice,” as Hart advocated? Wouldn’t the “social practice” of transparency in rule-making, of having laws spring from democratic and legitimate institutions, of having those laws be clear enough for the Egyptian population at large to understand, and of having those laws help legal observers accurately anticipate what courts might do in specific situations be better than a legal code that is difficult to comprehend and promotes social and political divisions to boot? In short, isn’t the Hartian way superior to the Dworkinian way in Egypt?

I daresay it is. Unfortunately, for the moment at least, Egypt has opted for a legal system that is bound to confuse and upset. Not the best way to build and preserve a successful, free and fair post-revolutionary society.

Pejman Yousefzadeh is an attorney in the Chicago area. He writes on law and public policy at his eponymous blog.