Dworkin and the Critical Legal Studies Movement PDF

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Jurisprudence Dworkin and the Critical Legal Studies Movement Legal Hermeneutics and CLS Dworkin maintains that every judicial decision requires discretion understood as the exercise of judgment as interpretation – none require discretion of an unrestricted type. Dworkin’s attack on formalism and its core concept of law as a system of rules is a powerful one that is orientated to its determination of the category of hard cases. We neither discover the right legal answer by looking up the right rule nor do we have a hard case when we have merely run out rules because of a gap in the rules or open texture. Dworkin’s examples (Riggs v Palmer; MacPherson v Buick; Brown v Board of Education) are convincing attempts to force the rule and discretion into impasses – in none of these cases we run out of rules. These cases, the formalist model appeared to give an answer and yet judges argued against whether it was in fact the right legal answer. Captured that law is an argumentative practice – a justification in terms of discussing principles embodies law. Hard cases are not hard for the reason that formalists discuss; hard cases involve a theoretical disagreement about law involving principles, standards and purposes embodied in the law – they point to the laws essential contestability that calls for decisions that are always interpretive. Hart and MacCormick, while accepting Realist claims, maintain that the law provides rational constraints to substantive reasoning and these constraints have to do with the predominantly formalist approach of legal reasoning – judges should always seek to conform their judgment to legal principles (the principles stand in a rational relationship to valid rules of law). Dworkin criticizes this because of its acceptance of discretion, judicial law making and retrospectivity. They have an all or nothing quality – if they run out then discretion that is unrestricted by law is granted. This is unacceptable – it is not how judges understand the exercise of legal judgment, it is not because there is no rule and so they need to exercise judgment on ethical or political grounds. It is an unacceptable violation of the rule of law and democracy – expression in the rule of law is seen as ideal and judges usurp the role of the legislator. The discretion judges have is only discretion in the weak sense – it is rationally constrained. ‘Five best men’ explanation – exercise informed judgment as to what ‘best’ is. There are always relevant legal standards that will inform the outcome even though how to apply them is not always clear and always requires the exercise of judgment. It is difficult to do and always controversial but there is ultimately a right answer. The judge is to apply existing law but this law contains more positive rules.

Jurisprudence In his major works, ‘Laws Empire’, the insight is integrated as a theory of law as interpretive practice. Law is an interpretive concept, the meaning of every law is an exercise of interpretation. It involves us participating in arguing its meaning. It requires us turning to the meaning it has for its participants (hermeneutical tradition). It is retrieved only from within shared contexts – a community. We shared a context of its possible meanings – we take an internal point of view. So arguing for the best among possible understandings involves us participating in an argument over the purpose or point of the practice. We must look at the institution in the best light and understand its requirements in light of what would most fully realize its implied purpose. This exercise – constructive interpretation – must be performed on objective grounds by retrieving purpose from within the practice as it is intelligible to the people participating in it. The Right Answer The right answer for Dworkin, is an answer where weight matters – the gravitational pull of principles that need to be deployed to rationalize rules and decisions into coherence. The judge who is guided by integrity will decide on the morally most attractive principle – a principle that best fits or carries the most weight in that order, having been entrenched in previous decisions. Dworkin calls his prescription for the right answer in law Integrity. Integrity means consistency in principles with past decisions and requires retrieving that principle in precedent as justification that best fits the institutional record. (A pragmatic recourse to political principles only serves their own pursuit of an ideal.) Integrity demands that the public standards of the community be both made and seen to express a single, coherent system of justice and fairness in the right relation. The question to debate about what the principle is, is not left open – the operative principles should fit the most coherent scheme of justice that can be emphasized by the past history of legal decisions and morally justifies that practice. The rationalizing principle be part of a pattern that coheres as a whole. Judges reconsult practice as a meaningful whole, sustaining unity of the community by giving coherence to understanding of the practice. Hercules: the law provides Hercules with a guiding ideal that will yield the answer as to what the law is – it will fit into the most coherent scheme of justice that can be envisaged for the past history of legal decisions. Integrity demands that rationalizing principles of the decision at hand be part of a pattern that coheres as a whole. Integrity yields the right answer and thus sustains the rule of law ideal. Critical Legal Studies In 1976 a new academic movement was formed and became a network called ‘The Conference on Critical Legal Studies’. They had a left wing radical stance towards the law. Alongside some of the ideas of the American Legal Realists, CLS argue that taking a legal doctrine seriously means revealing rather than concealing contrary

Jurisprudence aspects of law. They argue to reveal laws law’s inherent ambiguities. CLS’s second objective is to explore, criticize and reverse the manner in which legal doctrine, legal education and practices of legal institutions entrench advantage, disempower the vulnerable and sustain the status quo of a pervasive system of oppressive relations in society. 1. Law is riddled with real contradictions (Jenson) 2. Legal power operates to conceal these contradictions Subjective values/objective values – ad hoc/rules – law/policy – etc are all oppositions. Roberto Unger (1947) is a Brazilian activist and Harvard Professor and a highly influential figure in the CLS movement. He contends that because the content of our legal past is inherently indeterminate, it can be made to make sense in different ways depending on the principle we impute each time. 1. For every rule there is an exception 2. The rule represents the dominant principle, the exception stands for a counter principle which is subordinate but still a principle in law 3. Different social visions are in content in law individualism compared to unity Rule Principle Value

Exception Counter-principle Counter-value

This is of necessity schematic. The basic point is that the possibility is present in law to argue a case as falling under the rule or the exception; that this opposition of doctrinal interpretation reflects a deeper opposition of competing principles and that in opposition of principles a further deeper and legally irresolvable opposition is played out between two politically irreconcilable value systems – liberal individualism and socialism. Our legal system acts as a passive enforcer of private rights and also a protector of vulnerable parties against economic predators. The presence of clashing perspectives should be discussed openly – law is a means of effecting radical social transformation. Unger has spoken of the need to institutionalize a further category of rights -‘solidarity rights’. This is done by playing up principles, if suppressed in existing laws. ‘Selecting probing of institutions through the dialectical exercise of mapping and criticism.’ Unger’s suggestion is for an interpretative method of reasoning that draws on and exploits strategically existing institutional possibilities. Hugh Collins discussed a further model for applying legal analysis in what he describes as a horizontal rather than the above vertical manner. 1. Sphere of public life – public law provides citizens with robust protection (civil rights) and organizes the system by guaranteeing political rights. Asymmetry in citizen to state and affords the vulnerable party protection.

Jurisprudence 2. Sphere of exchange/work – liberal law typically treats parties as equal but remains neutral. 3. Sacrosanct private sphere - family and intimacy in which the law intervenes minimally to secure privacy. There are good political reasons why this frozen picture of social life needs to be challenged as maintaining oppression rather than guaranteeing freedom i.e. family relations, if not under legal scrutiny, could harbor abuse etc. Exchange/work is not a sphere of equality but corporate giants manipulate individuals. Unger’s agenda for radical political change to counter advantage uses law to renegotiate boundaries between spheres. The horizontal application depends again on tracing the paired opposition of principle and counter-principle within each sphere and arguing the case for treating the counter principle as significant. What counts as a counter principle in one sphere may be dominant in another sphere. Unger’s work is suggestive and radical in its vision for possibilities of legal analysis and its careful mapping of the ways in which the logic of law can be deployed to stretch those limits. CLS are attempting to feed the possibility of transformative political action into law. If it has to be rationalized each time it is a malleable vessel for political vision. What reason is right depends on our political choice of what political principle underlying it is right (Dworkin – law clean of politics). CLS views it as impossible to avoid political choices in legal debate and see Dworkin’s attempt to settle this as a political move....