Question 2 Juris PDF

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Question 2(a)Looking at Dworkin’s notion of “hard case”, he in relation had said that judges are always constrained by the law. This means that the judge faces legal uncertainty, and they need to exercise their weak or limited discretion to interpret the not just the immediate law but the interpreta...

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Question 2(a) Looking at Dworkin’s notion of “hard case”, he in relation had said that judges are always constrained by the law. This means that the judge faces legal uncertainty, and they need to exercise their weak or limited discretion to interpret the not just the immediate law but the interpretation of the moral foundation for them to determine the appropriate application which are also part of the law. There are categorize where Dworkin had based on the “hard cases” that includes, circumstances where it is “hard” for judges to choose the principle that had been laid down in the application of the law where there are instances that the judges need to choose which principle in a case where there are many contesting precedents based on different principle. Therefore, he has to choose which of these principles to apply in these particular situations. the second issue is in the situation where the set of facts do not have any prescribed or preexisting rule which in this case the judge need to determine the contextual or underlying principle depending on the facts of the case. Third is where the application of the preexisting rule will lead to unsatisfying results where the judge therefore needs to exercise their discretion in discovering the implicit principle or policies behind the precedent. In the first instance of hard case, Dworkin had critique Hart’s approach on a creation of a new rules as it would create a law that is restrospective. Dworkin argues that judges should not be legislating but to refere to pre-existing laws. It is to be noted that Dworkin also said that the judges should not be confined to black-letter rules but they should not also wield open discretion as in the hard cases, they have to decide based on principles or policies. It is said that in Dworkins explanation of principles and policies. “ the origin of legal principles lies not in a particular decision of some legislature or court, but in a sense of appropriateness developed in the profession nd the public over time. Their continued power depends upon this sense of appropriateness being sustaines.” Principles are understood by reference to moral foundation of the profession and the collective morality of the public over time. Therefore the judge when facing hard cases would have to perform the difficult task of not only looking at the wording of the case laws or the ratio behind the decision but to understand the broader principle preceding the manifested law and rules. The judges,

by Dwoekin, has to apply the principles and not just create new ones as suggested by Hart. In deciding on cases, especially hard ones, in order to apply the pre existing rule, Dworkin referred to the case of Riggs v Palmer where the man called Elmer Palmer had murdered his grandfather to get the inheritance money. In existing rule, he would have gotten away with because his name was in the will. However, to allow him to receive the will would be contradictory to what it is called the “collective morality and diametrically opposite to the whole moral justification” of the law itself. Where the law must protect the rights of the individuals but it must not subvert its own moral purpose. If the court allows the claim then it would be unjust and will be the opposite of the whole machinations of the law and its moral foundation. It is to see that the judge had state that “’no one should be permitted to profit from his own fraud or to take advantage of his own wrong’. In interpretation, the judges will have to exercise their weak powers of interpretation by either the principle or the policies. Judges in Dworkin’s theory must identifdy and clarify the appropriate principles and policies instead of considering other sources. The right answer thesis then comes to play where Dworkin argues the task of the judges in hard case is to seek the one right answer. The task at hand makes jusges to perform more and acts like a Judge Hercules whom is ‘a lawyer of superhuman skill, learning, patience and acumen’ where the judge has to work with extra steps in not just understanding the laws but in which he also has to undertake the process of interpretation and underline the principles and policies. If there is no clear cut rules on the matter, then the judge needs to interprete the contextual rationale and collective morality behind the law. The judgement made must be based on the principles. In every hard case, there is only one unique right answer and the law is present already. Where the law is what is referred to as the implicit policies and principles that have been discovered by the judge. The process to finding that one right answer are still one of the difficulty faced by judges. The judge in performing the interpretation of the law must ensure that the said interprateation “fit”. In Dworkin’s theory, because the judges are the last line of development of law, the judges must ensure that his judgement must fit what has gone

before or had gone before, where he must strive for consistency in that particular area of law. The current hard case faced by the judge is where it is implied that the case had precedents before so the judges making the decision must follow the ratio and the surrounding theme of the case. Everything that had been made in the interpretation must be in line with the theme and ratio so that the law will be consistent. (929 Words)...