Taking wrongful death seriously: Dworkinian interpretivism and the common law right of action for wrongful death.

Author:Sheffner, Daniel J.


This article asserts that the late Ronald Dworkin's theory of adjudication can be harnessed by sympathetic courts to find that there is a common law right of action for wrongful death. The need to recognize such a right will be addressed in Part I, and will be followed by a discussion of Dworkin's general theory of adjudication in Part II. (1) Part III will summarize the popular history of the wrongful death cause of action, showing that the dichotomous lines of cases both upholding and denying the common law existence of a wrongful death claim indicate that such suits are indeed "hard cases" in the Dworkinian sense of the phrase. (2) Part IV will discuss Dworkin's rights-based theory in the context of a contemporary wrongful death case in which the dissenting judge's opinion demonstrates how Dworkin's adjudicatory theory can be used to recognize the common law cause of action for wrongful death. (3) Finally, Part V concludes that judicial application of Dworkin's theory in wrongful death suits will result in the "right answer." (4)


    The Anglo-American legal institutions allow a husband, wife, child, or other statutorily defined person to recover damages in tort for the wrongful death of a loved one. It may seem peculiar to note the availability of such allowances in anything other than a compendium of the various damage awards due a victim of negligence. Wrongful death statutes are ubiquitous and it is unimaginable that a court would bar, for example, a husband from collecting damages for the loss of society from an individual whose unreasonable behavior resulted in the death of his wife. It is equally unimaginable that American and English public opinion would deem such a result correct, just, or moral. However, while commentators have touted the many benefits of the common law legal systems, (5) there is a dark side to the tort of wrongful death. Although every American jurisdiction allows for the recovery of damages for wrongful death, such a right can also easily be limited or eliminated in many jurisdictions by the legislature due to the general rule that wrongful death was absent at common law. (6)

    The rule that wrongful death was absent at common law is believed to have its origins in 1808. At that time, His Majesty's Chief Justice Lord Ellenborough declared in Baker v. Bolton:"[i]n a Civil court, the death of a human being could not be complained of as an injury." (7) Although, this statement was vilified by English and American commentators alike, (8) the idea quickly became the rule. In response, the English Parliament enacted Lord Campbell's Act, a wrongful death statute, to remedy the inequity created by Baker. (9) In the United States, the Baker rule was first accepted by the Massachusetts high court in 1848. (10) Court after court followed Massachusetts' lead, such that the vast majority of states (11) now declare that wrongful death is a legislatively created right of action, unrecognized at common law. (12)

    Why does this matter? A right that owes its existence wholly to the legislature can, in turn, be eliminated by that body. However, even if a state legislature eliminated all statutes pertaining to civil causes of action, an individual could still file a common law action. For example, if an individual was injured by a reckless automobile driver while crossing the street, the litigant would only need to cite case law upholding one's right to sue in tort for negligence. (13) If, however, the accident victim was killed, instead of "merely" injured, the victim's loved ones would not be able to sue for wrongful death based on common law principles, because most courts maintain that there is no right of action for wrongful death. Thus, there is no residual right to sue based on a loved one's death in the absence of statute. (14)

    Additionally, legislative dominance over wrongful death has resulted in unfair statute of limitations provisions and limitations on damages. (15) This can be illustrated by recent developments in the State of Missouri's medical malpractice law. The Supreme Court of Missouri recently held that pain and suffering damages in medical malpractice suits may not be legislatively limited due to the fact that no such limits were used or known at common law. However, the Missouri high court upheld such caps in wrongful death medical malpractice claims, writing that wrongful death was not recognized at common law. (16) This environment creates a situation where a Missouri physician may owe less in damages if an operation results in a patient's death rather than injury. (17)

    The future, however, need not be bleak. Present within the institutional history of general American decisional law are judicial decisions that rebelled against the orthodoxy of Baker. From state to state, and even to the halls of the Supreme Court of the United States, judges have discovered that there is a common law basis for finding that one can recover for the death of a loved one for injuries sustained in their own right. (18) A very small minority of courts currently acknowledge such a right. (19) The presence of such decisions, from the early colonial period to the present-day, indicates that there is a common law principle consistent with normative American values that declares that a person's right to recover in tort for the wrongful death of another is not dependent on statutory enactment.

    This is where legal philosophy comes in. The late Professor Ronald Dworkin conceived of a theory of adjudication that was based on the presence of "principles" that, together with legal rules created by courts and legislatures, make up the "law." (20) Dworkin declared that in "hard cases" where the legal rules "run out" (i.e., there is no applicable positive law available to resolve the issue, or perhaps there are competing rules or standards that speak to the issue), judges can, and for the most part do, use vague, general principles to resolve those cases. (21) This theory explains that judges do not use discretion when deciding hard cases, which would violate principles of legality prohibiting the creation of legal duties with retroactive effect, but instead apply standards that were already present in the law, but were simply not codified or made necessarily explicit. (22) Using Dworkin's theory of adjudication, courts throughout the United States have the ability to rid themselves of the constraints of formalism and to find within their communities a principle of law that can be used to bar the legislature from placing unjust limitations on a loved one's right to recover in tort for wrongful death.


    Ronald Dworkin's contribution to legal philosophy, liberal constitutional interpretation, and the reinvigoration of moral theory in the modern age has ensured his place in the jurispmdential pantheon. (23) To his admirers he was "the primary legal philosopher of his generation," (24) to his critics he was "elitist and undemocratic" and a legal paternalist; (25) but to nearly all lawyers, legal philosophers, and others who studied his works he was acknowledged as an intellectual heavyweight and thought-provoking writer. (26) Dworkin's primary jurispmdential contribution concerned his theory of adjudication, which conceived of judicial decision-making as inseparable from community morality. (27) This concept, known as a rights-based theory of adjudication, asserts that lawyers and judges advocate legal propositions and issue decisions that are based on institutional history and normative conceptions of justice and morality. (28)

    Dworkin used the "judicial decision" to explain his rights-based theory of decision-making because "judicial argument about claims of law is a useful paradigm for exploring the central, propositional aspect of legal practice." (29) The impetus for using such a mode of explication stemmed from his criticism of the positivist theories of law, especially as championed by the great legal philosopher H.L.A. Hart (co-eponymous hero of the Hart-Dworkin debates, as well as Dworkin's former instructor at Oxford), (30) which emphasizes the "separability" of law from morality. While Dworkin's philosophical views were not stagnant throughout the years, (32) his fundamental understanding of law as a closed, cohesive system was fully developed in his 1986 book Law's Empire. (33) The following sections explain Dworkin's theory of adjudication, with emphasis on his belief in the presence of legal principles and his formulation of law as an interpretive concept. (34) First, however, it will be helpful to summarize Dworkin's critique of Haitian positivism. Together with future materials, these explanations will show the presence of a fundamental and general right to compensation for the death of a loved one in tort divorced from statute.

    1. Critique of the Plain-Fact View of Law

      Dworkin's theory of law, entitled "interpretivism," was borne out of his disagreement with the positivists' separation of the systems of law and moral values. (35) According to Dworkin, a conceptual philosophy that discounts such a connection also discounts the theoretical foundations of legal argument (36) and impedes the correct development of legal theory due to its reliance on mere semantics. (37) Such semantic theories assert that disagreements over

      legal propositions stem from differing definitions of "law," and claim that:

      [L]aw depends only on matters of plain historical fact, that the only sensible disagreement about law is empirical disagreement about what legal institutions have actually decided in the past, that ... theoretical disagreement is illusory and better understood as argument not about what law is but about what it should be. (38) This theory does not comport with the Dworkinian definition of legal argument. (39) Simply stated, Dworkin's emphasis on the centrality of morality and interpretation with...

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