Dworkin Jurisprudence Tutorial PDF

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DWORKIN JURISPRUDENCE TUTORIAL 20181. Briefly explain Hart’s ‘Penumbra of uncertainty’. Do judges make law? Penumbra of uncertainty is where there is no settle law. The judge may look outside the existed law and consider the moral values and social practices which is primary rules as a valid source ...

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DWORKIN JURISPRUDENCE

TUTORIAL 2018

1. Briefly explain Hart’s ‘Penumbra of uncertainty’. Do judges make law? -

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Penumbra of uncertainty is where there is no settle law. The judge may look outside the existed law and consider the moral values and social practices which is primary rules as a valid source of legal authority According to Hart, there are 3 situations where a judge finds himself in penumbral area of the law. First, the language of the statutory provisions. For example when the judge needs to give the meaning of a word or phrase such as the meaning of ‘life’. The meaning of ‘life’ is wide and uncertain that it can cover many things. Second, uncertainty in the application of legal standards. The application of ‘reasonable man’. Lastly, the application of legal precedents. If there is any conflicting precedents, the judge need to determine which precedent is correct to follow. When the judge faces with this kind of situation where there is no settle law, he has wide discretion to make new legal decisions in order to make the uncertain law become certain. Hart concluded that judges inevitably must use their discretion to make new law, on the occasions where the legal rules have “open texture”. In exercising this discretion, the judge or official will look to the purposes or the social consequences of adopting a certain interpretation of the rule (e.g. competing policy arguments) Primary rules (times the essence of the contract) contoh lah ni so judges need to see how time of essence

2. Explain Dworkin criticisms of Hart’s approach (above, q.1) and legal positivism, in general. How do these criticisms lead him to the notion of ‘hard cases’ as a way of explaining his view that law is more than just rules but includes principles and policies?

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Dworkin criticized that judge should not make new law when facing uncertainties. They should use principle or policy that have been existed in order to come out with explicit law.

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Dworkin, hard cases is where a judge need to exercise limited discretion when facing legal uncertainties. The judge needs to interpret the law and its moral foundation in order to determine the appropriate principle or policy. From this, the judge can turn the implicit principle or policy into explicit which is the law.

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3 situations where Dworkin feels like hard cases should be applied. Firstly, where the case is ‘hard’ for the judges to decide which of the conflicting principle should prevail. Secondly, set of facts with no pre-existing rule. Lastly, application of the pre-existing rule will lead to unsatisfactory result.

RIGGS V PALMER (1889)(U.S CASE) Grandson murdered grandfather. Should he be allowed to inherit his property according to the will? Existing rule – he has the right to the inheritance. Court decide:  not allowed inheritance. Legal principle ‘ no one should be permitted to profit from his own fraud or to take advantage of his own wrong’ (broad...