Dworkin\'s theory in relation to Lee v Asher PDF

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An answer to the Part A of the 2021 paper held on 02.062021. Looks into two competing approaches of two fellow judges in application of Dworkin's theory....

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Dworkin’s theory revolves around separating legal facts and moral jurisprudence in order to provide justice in a proper manner. The theory divides law into principles (made by the judicature and flexible) and rules (based on public policy and certain). Dworkin’s theory is interpretative and can be seen as a three-stage application: pre-interpretative, interpretative, and post-interpretative. The principle laid down in Lee v Asher Baking was that anti-discrimination laws in Northern Ireland could not be read as compelling providers of goods, facilities, and services to express a message with which they disagree, unless justification is shown for doing so. The brief facts of the case are that the Defendants ran a baking company whereas the Claimant was a LGBT activist, who placed an order for a customized cake with the message ‘support gay marriage’. The Defendants at the time took the order with payment but over the next few days declined to place the message on the cake as it was contrary to their beliefs. A full refund was also made to the Claimant. The district court found that the Defendants were involved in direct and indirect discrimination on grounds of sexual orientation, religious beliefs and Fair Employment and Treatment Order 1998 (FETO). On appeal to the Court of Appeal, the respective court found that there was direct discrimination on grounds of sexual orientation and the Sexual Orientations Regulations (SORs) need not to be looked at in order to ascertain the Appellant’s ECHR rights. The Supreme Court unanimously held that neither SORs nor FETO imposed any liability on the appellants for refusal to express a political opinion contrary to religious beliefs thereby overruling the Court of Appeal judgement. There had been no discrimination direct or indirect because the Appellant had refused service not due to the sexual orientation of the Defendant, but the refusal was based on the message alone which was contrary to the beliefs of the Appellants. There had been no political discrimination as per North Ireland laws, discrimination must have been against a person’s religious beliefs. The refusal to write the message on the cake was due to the personal beliefs of the Appellants which did not target the Defendant or any person belonging to the said category of belief. Thereby, it was necessary to consider the ECHR rights of the Appellants under FETO. The Supreme Court held that under ECHR had the Appellants refused the cake on the grounds of the Defendant being gay, a justification would have arisen to enable discrimination however the Appellants had only refused to convey the message and not the cake signifying that there was not enough justification to accept that discrimination had taken place. Dworkin’s theory is based on Rules and Principles. The question here to be asked is whether Lee v Asher was a principle made or a rule enforced? FETO 1998, is a legislation passed in order to better regulate ECHR within Northern Ireland. The Appellants case was that FETO was compatible with ECHR and as such should have been read with it in order to safeguard their rights provided under EU law. The Defendant also agreed to the matter. The Appellants sought that if their conduct had been unlawful then FETO should be declared as incompatible to ECHR under Section 28 of the Northern Ireland Act 1998. The second legislation in question is the Equality Act (Sexual Orientation) Regulations 2006. The act states that there is discrimination if a person treats another person differently based on their sexual orientation. Under this premise, the Supreme Court held that there had been no direct discrimination as the bakery had still offered the cake without the message. The question of indirect discrimination did not arise based on that there was no justification for it and that the lower courts had agreed that there had

been no indirect discrimination. Thereby, the Supreme Court exercised its judicial thinking in order to interpret the existing laws (rules under Dworkin’s theory) and did not make any new law at the common law stage but devised new principles to aid in interpretation of the existing legislation to provide a better ground of understanding legally to both parties. Judicial law making and judicial discovery are two distinct concepts that eclipse Dworkin’s theory from Hart’s. Lord Denning stated that where there is a gap in legislation, judges should fill that gap to which Lord Simmonds argued that in doing so, judges would violate the power given to the parliament. However, it is true that judges do make the law at the common law level when the need arises to provide justice. To this there have been two approaches i.e., cautious, and adventurous. The job of a judge is to find the law that already exists to be interpreted. Understanding this means that the judges do no make law but merely discover it. In Lee v Asher, it can be seen clearly, that the Supreme Court only interpreted existing legislation in a new light allowing for new limitation to what is discrimination and how it corelates with ECHR. Dworkin disagrees with Hart’s model of rules as he argues that Hart fails to consider the concept of principles and customs. Hart emphasizes on the role of rules in law-making and judges giving their decisions, for which he provides primary and secondary rules. Whereas Dworkin is of the view that law not only consists of rules but principles, policies, customs, and morals which are necessary for a judge to decide a ‘Hard case’ where there are no rules. As per Hart, when there is no rule, judges decide by their own discretion whereas Dworkin criticizes Hart, arguing that law never runs out of answer and judges can discover their answers from principles, morals, and customs to arrive at a just and fair decision. Dworkin differentiates cases as ‘easy’ or ‘hard’. In his view an easy case is where after hearing the parties, legal analysis is unanimous and points in one direction only. In other terms it is an open and shut case which does not require much judicial thinking. A ‘hard’ case on the other hand is challenging as it lacks clear consensus to interpretation. Simply put in a hard case, there will be gaps in legislation as well as contradictory precedents. In order to arrive at a conclusion, the courts need to look at not just the sources of law but how these sources can be used to come to a decision, hence a method is required. Coming to Lee v Asher, this is not a hard case. The reasons being, that all required legislation existed and was clear and precise. ECHR, FETO and SORs were all laws in use and could easily be interpreted. Had there been no laws, a hard case would surely be present. Lee v Asher was not a unique once in a while case either as the primary question was on discrimination. Lady Hale only applied her juristic mind in order to reach a conclusion on the case based off the law and precedents available to her. To contrast Lee v Asher, in the case of Masterpiece Cake Shop Ltd. V Colorado Civil Rights, the Appellant had refused to bake a cake for a homosexual couple, on the basis of the characteristics of the Defendant. The issue was that the Appellant would have not provided their services to anyone with the said characteristics which was not the case in Lee v Asher. Lady Hale stated that the refusal to add the message to the cake did not amount to refusal of service to the Defendant based on characteristics because the Appellant would have refused the cake to anyone of any characteristic in general.

Rene v Reyes, suggests that this decision was a blow to the customer’s sexual orientation discrimination claims however, Lee v Asher draws a distinction between permissible and not permissible on freedom of speech and religion are not to be interpreted in a manner to encourage discrimination.a Dworkin’s theory is based on a three staged interpretivism approach, pre-interpretative, interpretative, and post-interpretative. This approach identifies the relevant legal material referred to as the ‘preinterpretative stage’. It involves constitutional provisions, statutes, and precedents. The next step requires deriving principles from the legal material referred as the ‘Interpretative stage’. This is done through deducing the value and purpose of the legal material and providing an understanding behind it. This involves morality, norms of society, and expression of justice and fairness. Lastly, in the ‘postinterpretative stage’, the principles relevant to the case are oriented to a moral conclusion. If there are conflicting principles, then a balancing exercise of these principles is done. Such principles are followed which reflect society’s moral judgment. This leaves us with the ‘Right Answer Thesis’ from Dworkin. Dworkin introduces Hercules as the ultimate standard for a judge. Hercules is a ‘super judge’ and his analytical, deduction and adjudication abilities are unmatched. In any hard case this judge would utilize principles to arrive at the best possible theory of law. From Hercules’s standard if we look at both the district court and Supreme Court judgements both judges held on to different conclusions. Brownly, in his judgement stuck with legislation narrowly and did not concede to morality and principles. On the other hand, Lady Hale, not only invoked principles but also moral reasoning in order to interpret legislation in a new way showcased from her split of cake and message. The difference that arose in both approaches was the consideration of message as a sperate entity to the original service. By judicial thinking the rights of the Appellants in Lee v Asher were not only safeguarded but also provided the limitations and instances where discrimination needed to be justified. This lays down a new precedent and an approach that future judges could follow. Discrimination on sexual and political basis were redefined under the existing statues in order to cater to new issues that arise in a democratic society where tolerance and freedom of religion are considered. Lastly, in my opinion in Lee v Asher, Lady Justice Hale had a more adaptable view in comparison to dated legislation on discrimination based on sexual orientation and political views. Justice Brownly although followed the current legislation to the letter, shows how dated law fails to address new problems which could be solved through judicial discovery and thinking. This would be a more efficient manner since legislation by the Parliament could take several months to years to tackle modern problems....