PART A Dworkin\' PDF

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Summary

I will be looking at the case of Lee v Ashers Baking Co from the lenses of Dworkin’s interpretive theory and will be critically evaluating whether Lady Hale and Lord Mance mirror the role of the judiciary that Dworkin perceived.For Dworkin, the law essentially comprises of legal rules (i. statutes, ...

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I will be looking at the case of Lee v Ashers Baking Co from the lenses of Dworkin’s interpretive theory and will be critically evaluating whether Lady Hale and Lord Mance mirror the role of the judiciary that Dworkin perceived. For Dworkin, the law essentially comprises of legal rules (i.e. statutes, legislations etc) and legal principles (i.e. maxims that promote fairness and justice not codified anywhere). He believes that there are some cases where the judges will be faced with a case where legal rules may not be enough to adequately deal with the issue presented in the case. Here we will be looking at whether the case at hand is a ‘hard case’ which requires to look within the legal principles of the common law or whether the judges were able to ensure whether their judgments fit what had gone before (i.e. precedent, common law). Starting with Lady Hale, the first issue she questioned was the claim under the SORs and whether there was indeed discrimination against Mr Lee (appellant) based on his sexual orientation. For her there was in fact no discrimination against Mr Lee as stated in para 20 of her judgement. Lady Hale insisted on the error made by the district judge in her comparison which was not made according to what the SOR entails. Here the message was dissociable from the messenger and Mr Lee being gay was a matter of opposition but the message on the case. In light of Dworkin, he believed that judges should work to make the legal rules fit as well as they can onto a specific case. He believes that it is a judge’s responsibility to ensure that his judgement fits ‘what has gone before’ i.e. statute, precedent etc. From ‘fit’ he seems to want to insinuate ‘consistency’ as well. That is exactly what Lady Hale seems to be doing here. She is trying to correctly apply the law under the SORs by fixing the comparison made by the district judge and making the ‘right’ comparison required to be liable for discrimination. She acknowledges that discrimination is an epidemic faced by homosexuals but in the end sides with the literal interpretation was the language of the statute. This is also an integral part of Dworkin’s theory where he emphasizes that judges do not need to engage in arbitrary law making and should focus on what the law is and what the law has been through case law. This can also be seen in this case when Lady Hale tries to define a political belief despite there not being on the statute of FETO. She refers to the case of Mc Kay v NI for the definition. This again asserts Dworkin’s theory that judges need to look for a legal answer and the way to find that is to ‘consider legal rules and principles in interaction’. Here simply, legally rules were applied by looking back at precedent showing that it is indeed not a hard case. Another vital part of Dworkin’s theory is the model of Hercules. Dworkin theorizes that a judge must embody Hercules when deciding cases by applying the ‘soundest theory of law, looking at all moral aspects and underpinning principles’ which points to a correct legal argument. For Dworkin, law is an argumentative attitude that needs to be coaxed in the best possible way. This can be seen in this case as well in the conflict between FETO and rights under the ECHR. For this conflict, Lady Hale tried to constructively interpret both the statutes under FETO and the ECHR hence doing what a Herculean judge would do. She further explains based on previous case law how there is a close connection between the message and the messenger which was not seen in the issue regarding sexual orientation. A further question arises as to the religious belief of the person being discriminated against whoever this claim was brought by the bakery not the claimant. FETO imposes liability on those who discriminate based on a religious belief but there is a long held rule of the law as well to not force a belief onto another person and as Lady Hale looked back she cited cases like Zimbabwe to

show this very rule. Hence again proving that Dworkin may not see this as a hard case and might even applauded Lady Hale for sticking to the intentions of the legislation. Besides, Dworkin’s ideal judge is not a law-maker, as opposed to the concept of Hart, who explains that judges indeed should be law makers. The judge needs to see the law in its best light in regards to fit and substance which the morality of the law. Here Lady Hale saw morality in the fact that no one can be made to believe something that is against their own beliefs. “He the judge may not get it right, but the duty is upon him to try nevertheless” (Stephen Guest). In the end it may be safe to say that Lady Hale did her best to interpret the law and try to come to the best possible solution for it. Lord Mance in this case talks about the procedural issues brought up. Was it within the SC’s jurisdiction to look at this case. For this Lord Mance looks at all the laws and statutes pertaining it especially under s61 (7) of the 1980 order and the exception to it being under s42 (6). And in conclusion Lord Mance held that since the statute was under conflict with ECHR the SC had the jurisdiction to hear the appeal. This is where he follows Dworkin’s theory to the nail as he literally interprets the law and finds no gaps in it for it to be seen as a hard case where principles would be applied. Similarly, in para 33 the AG sent a reference to the COA to send this case to the SC which was rejected on the grounds that the case had already been adjudicated. Here it was seen that the AG sent his reference before the case’s formalities were fulfilled so the AG’s reference should not have been refused. Hence again showing that the case is not a hard one and Lord Mance is trying to find a best possible answer for the issues at hand. There is some debate as to whether Lord Mance went too far in saying the court’s refusal of the AG’s reference was wrong but I believe that he looked at the formalities and the small but substantive points of this issue to let the case go forward to the SC as he believed that that is what would’ve have preserved that natural justice of the case. In conclusion I think this case exemplifies Dworkin’s theory so far as to show how a judge can truly apply the legal rules in a case in look for the best possible answer and maintaining the law’s integrity. In some parts of the judgement however, there is clear contradictions to the interpretive theory such as para 45 where Lady Hale states that policies are vital to her judgement as well which Dworkin completely rejects as to what a judge should look at. But overall, this case is a very good example of how judges should and are required to interpret the law, trying to see if there were any gaps that needed to be filled in by principles and finally giving the correct answer which was reasoned by solid statutory interpretation....