Outline Jurisprudence - Ronald Dworkin PDF

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LAW AS RULE AND PRINCIPLE 1. Dworkin, as positivism's most significant critic, rejects the positivist theory on every conceivable level. 2. Dworkin denies that there can be any general theory of the existence and content of law; he denies that local theories of particular legal systems can identify law without recourse to its moral merits, and he rejects the whole institutional focus of positivism. 3. A theory of law is for Dworkin a theory of how cases ought to be decided (normative and not merely descriptive) and it begins, not with an account of the political organization of a legal system, but with an abstract ideal regulating the conditions under which governments may use coercive force over their subjects. 4. Dworkin's theory is 'interpretive': the law is whatever follows from a constructive interpretation of the institutional history of the legal system. 5. First, Interpretivism says that the explanation of rights and obligations in which both moral principles and institutional practice play some role is a kind of interpretation. 6. Second, interpretivism says that interpretation identifies some moral principles which justify, in some specified sense, the enactment's having the impact on the law that it does have. 7. Third, for interpretivism, the justifying role of principles is fundamental: for any legal right or obligation, some moral principles ultimately explain how it is that institutional and other non-moral considerations have roles as determinants of the right or obligation. 8. Dworkin argues that moral principles that people hold dear are often wrong, even to the extent that certain crimes are acceptable if one's principles are skewed enough. 9. To discover and apply these principles, courts interpret the legal data (legislation, cases etc.) with a view to articulating an interpretation that best explains and justifies past legal practice. 10. All interpretation must follow, Dworkin argues, from the notion of "law as integrity" (as far as possible judges should identify legal rights and duties on the assumption that they were all created by the community as an entity, and that they express the community’s conception of justice and fairness) to make sense. 11. Dworkin argues that in every situation where people's legal rights are controversial, the best interpretation involves the right answer thesis, the thesis that there exists a right answer as a matter of law that the judge must discover. Dworkin opposes the notion that judges have a discretion in such difficult cases. 12. Dworkin rejects Hart's conception of a master rule (rule of recognition) in every legal system that identifies valid laws, on the basis that this would entail that the process of identifying law must be uncontroversial (but it is uncontroversial, it is the application of the law which is controversial, or its interpretation), whereas (Dworkin argues) people have legal rights even in cases where the correct legal outcome is open to reasonable dispute (rights not legal rights, hence the uncertainty of the legal outcome). 13. Dworkin moves away from positivism's separation of law and morality, since constructive interpretation implicates moral judgments (communally accepted objective conceptions of justice and fairness; not that of the judges) in every decision about what the law is. THE RIGHT ANSWER THESIS 1. Dworkin states that the law as properly interpreted will give an answer - the law is to be treated as a seamless web (no gaps, continuous) in which there always is a right answer. 2. This is not to say that everyone will have the same answer (a consensus of what is "right"); rather it means that there will be a necessary answer for each individual if he applies himself correctly to the legal question. 3. For the correct method is that encapsulated by the metaphor of Judge Hercules, an ideal judge, immensely wise and with full knowledge of legal sources. 4. Acting on the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law (seems too subjective and thus uncertain) as a

whole (law as integrity) in order to decide any particular case (like, what is the spirit of the law as conceived by the community? Like the mischief rule of interpretation) Disagreements would be as to what the right answer is, what Judge Hercules would give (which does exist) 5. If the law is a seamless web then it should be possible to determine future laws in the way judges can decide cases in the absence of a specific law or principle) 6. Dworkin's critics argue not only that law proper (that is, the legal sources in a positivist sense) is full of gaps and inconsistencies, but also that other legal standards (including principles) may be insufficient to solve a hard case, even Hercules would be in a dilemma and none of the possible answers would be the right one. 7. To get the right answer, judges must have the ultimate wisdom from the history of decisions and the understanding of the political value of a system. 8. A right answer is one which produces a better fit with existing law (history) and legal practices (communally accepted morality) DISCUSSION OF THE RIGHT ANSWER THESIS 1. Dworkin's Judge Hercules is a purely idealized construct, that is if such a figure existed, he would arrive at a right answer in every moral dilemma (not realistic?) 2. Dworkin's right answer thesis turns on the success of his attack on the skeptical argument that right answers in legal-moral dilemmas cannot be determined (if so, what is it that is eventually determined? The best answer is the right answer) 3. Dworkin's anti-skeptical argument is essentially that in asserting that the truth or falsity of "legal-moral" dilemmas cannot be determined, the skeptic makes a moral claim to the effect that it is, in the face of epistemic uncertainty, unjust to determine legal-moral issues to the detriment of any given individual. 4. It is the thesis of Dworkin that judicial discretion in what Dworkin calls its “Strong Sense” does not exist. 5. The judges often are heard to say: “We find the law to be this”, and they say they discover the law. They do not profess the law to be their own discretion. 6. For Dworkin, judges are always constrained by the law. In every adjudication of the socalled “hard-cases’ there are controlling standards which a judge is obligated to follow. 7. Dworkin objects to judges acting as ‘deputy legislators’. How does he know that instead of finding the “right answer”, the judge has not actually ‘created’ a principle from which the “right answer” was derived? 8. Dworkin objects to judges acting as ‘deputy legislators’ for 2 reasons: (i) Separation of Power: It offends the democratic ideal that a community should be governed by elected officials answerable to the electorate. (In Lord Simmons words, “it’s a naked usurpation of legislative functions). (ii) Retrospectivity & The Rule of Law: Dworkin also argues that “if a judge makes a new law and applies it retrospectively in the case before him, then the losing party will be punished, not because he has violated some duty he had, but rather a new duty created after the event.” 9. For Dworkin, discretion is not free-standing but part of a process. Discretion, like the hole in the doughnut, does not exist except as an area left open by a surrounding belt of restriction. 10. Discretion is not outside the law but internal to the law. Lord Denning’s development of Promissory Estoppel doctrine in the High Trees case was not pulled out of thin air. 11. In every adjudication of hard cases there are controlling standards which the judge is obligated to follow. 12. A right legal answer would be one that asserts and protect rights which are explicit or implicit in the fundamental values (spirit) of the legal system.

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LEGAL RULES VS. PRINCIPLES In the operation of the legal system, policies are not appropriate to legal reasoning and principles are more important than rules as they surround the structure of rules. Dworkin argues that in hard cases judges make use of standards that do not function as rules but operates as principles. Where two rules conflict, one rule is always wrong or invalid. Rules therefore operate in an all-or-nothing fashion. In Riggs v Palmer, where Elmer murdered his grandfather in order to inherit his will, the decision proceeded not on rules but on a principle of law, Nullus Commodum Capere Potest De Injuria Sua propria (no one can profit from his own wrong). The creative role of Lord Atkin in Donogue v Stevenson lies in his giving constructive interpretation of the earlier cases and formulating the principle in a new way (the neighbor principle). Similarly, Lord Denning’s development of Promissory Estoppel doctrine in the High Trees case was not pulled out of thin air. We can see that the rules have a different meaning and different effect when you apply relevant principles. Whereas policies are the collective goals of society pursued by the legislature, democratically elected, principles are internal to law and are developed by the judiciary. RIGHTS VS. RULES Rights are more fundamental than rules in a legal system. Rules express rights but the rights exist before their expression in the form of rules. This is opposed to HLA Hart’s view where rights develop from legal rules. According to Dworkin, rights develop in the legal system through the working out of the political morality. CRITICISM OF RIGHT THESIS MacCommick asserts that the proposition that judge have a weak discretion and that they are to find the right answer from the principles is unsustainable. Critics such as Greenawalt have argued that the ‘denial of discretion is wrong and is inconsistent with our ordinary understanding of judicial responsibilities for opinions. Greenawalt argues that there are also examples which contradict the right theories. For example, in a case of nuisance, the judge may consider the effect of his discretion on the community before accepting the right of the claimant (policy). Dworkin replies that this is not a case of policy but a case where the judge compromises competing rights. CONCLUSION Dworkin’s philosophy stresses a ‘Right’ approach over utilitarian calculations. Dworkin’s theory of law lies in the best moral interpretation of existing social practices. His outlook of law comes to be coloured deeply by ethics and morality as expressed in his theory and can be seen in his preferences of principles over rules. Dworkin sought to merge the descriptive elements with the prescriptive to the extent that he has sacrificed reality to a noble dream. The “one-right-answer” thesis is Dworkin’s theoretical reply to Hart’s seminal opinion, “open texture”....