Dworkin

Question 1

What is the difference between rules and principles?

Answer 1

Principles require consideration, but do not clearly direct a decision (eg. freedom of contract).
On the other hand, rules explicitly work to direct a decision (eg. contract requires an offer and acceptance).

Question 2

What is the distinction between Fuller and Dworkin?

Answer 2

Fuller locates morality in the procedure of law. The fact that law is decided by an impartial judge, for example, makes it morally fair.

Dworkin locates morality both in the process and the substantive content of law.

Question 3

How does Dworkin falsify Hart’s pedigree thesis?

Answer 3

Dworkin claims that Hart’s concept of law does not recognise principles, only rules.

Principles are not explicitly recognised by any secondary RoR in law. Yet, they are relevant in deciding cases.

Therefore, Hart is wrong in saying that law is only law if it has pedigree. Principles are an important part of law, yet they do not have “pedigree”.

Question 4

How does Dworkin’s principles show that law is inseparable from morality?

Answer 4

Principles are effectively legal ‘values’.

Values are a product of moral reasoning.

Therefore, principles work to incorporate morality into the law.

Question 5

What does the exclusive positivist argue?

Answer 5

Principles themselves have pedigrees. It is a form of judicial custom, and thus has pedigree in that sense.

Principles are ‘extra-legal’ standards, similar to foreign laws in choice of law cases. Both principles and foreign law remain outside of the legal system.

Question 6

What does the inclusive positivist argue?

Answer 6

Like punitive sanctions, morality can also be a part of law. They are just not essential parts of the law, in the way that secondary rules like the RoR are.

Question 7

What are the two points of view that Dworkin describes in his semantic critique of Hart’s methodology?

Answer 7

The external, sociological point of view. Observing the legal system as an outsider without participating in it. This is Hart’s approach.

The internal point of view. The perspective of those who argue over law. This is a perspective into the heart of legal arguments. This is Dworkin’s approach.

Question 8

What are empirical disagreements?

Answer 8

Disagreement about legal facts (eg. did this action actually occur; did this statute actually follow the procedures necessary to product a valid statue) are ‘empirical disagreements’

Question 9

What are theoretical disagreements?

Answer 9

Disagreement about the grounds of law; Whether a legal decision is the right or wrong one.

These are questions of social construction.

They cannot be resolved empirically.

Question 10

According to Hart, what happens when the ‘law runs out’?

Answer 10

When the law runs out, there is no rule of recognition that tells the judge the law to apply to resolve the particular case.

When this happens, the judge is left to use their own discretion.

Question 11

According to Dworkin, what happens when the ‘law runs out’?

Answer 11

Judges engage in an actual dispute over what to do when the law runs out. They argue over which principle of law should be applied to resolve the case. They assess the merits behind competing approaches to resolving the case.

Question 12

According to Hart, what is going on when judges are involved in a theoretical disagreement?

Answer 12

They are arguing whether the law has in fact run out; whether the law that they want to apply is recognised by a rule of recognition.

Question 13

What are questions of repair?

Answer 13

Questions that judges engage in over how to best remedy a defect in the law.

Question 14

What is Dworkin’s initial critique over Hart’s plain fact view of the law?

Answer 14

He believes that when the ‘law runs out’, judges genuinely disagree over the grounds of law.

They are not simply deciding a result based on discretion alone.

Cases like Elmer’s Case, the Snail Darter case, and Mcloughlin v O’Brian show judges arguing over the relevant legal principles that should apply in the case.

Question 15

What is Hart’s plain fact view of the law?

Answer 15

When there is no law that appears to govern the facts of a case, judges argue over whether the law has in fact run out. This is an argument over whether there is a law recognised by a RoR that should be applied to resolve the case. When they cannot do so, judges are simply left to their own discretion.

Question 16

How did Elmer’s Case support Dworkin’s position?

Answer 16

It highlighted a dispute over whether the Statute framers intent should be relevant in interpreting a statute.

To Dowrkin, this is clearly a dispute over the grounds of law. Neither judges are making claims that the law has run out; There are valid grounds of law that would apply to the case, the judges simply disagree over which approach is better.

Question 17

What is the ‘fingers crossed’ thesis?

Answer 17

The language judges use in these hard cases are simply ruses to disguise the actual nature of the dispute or judgement. In fact, judges are simply using their discretion first, and then justifying their result later on.

Question 18

What was Dworkin’s response to the ‘fingers crossed’ thesis?

Answer 18

How could a ruse be so effective for so long? Wouldn’t it be easy for the loser to effectively expose the ruse when it was practiced?

No actual evidence supporting such a claim – it is purely suppositional

Question 19

What is the ‘merely verbal disagreements’ thesis?

Answer 19

Judges are conflating issues of law with issues of judging.

Judges have to make decisions and interpret the law. So they naturally assume that their decision, even if discretionary, is part of the law. But philosophically, this is wrong. But the judge isn’t thinking in those terms. They just want to resolve the case.

Question 20

What is Dworkin’s semantic sting?

Answer 20

Dworkin distinguishes between two kinds of hard cases:

Borderline cases. We agree about the criteria behind the test, but disagree about its application in this particular case. It could fall inside or outside the boundary, It is borderline.

Pivotal or ‘test’ cases like Elmer’s case, Snail Darter’s case and McLoughlin. These cases involve disagreements over the criteria of the test itself.

Semantic theories like Hart’s theory presume that we all accept the same criteria for deciding when our claims are sound. This is effective for borderline cases.

However, semantic theories are conceptually blind to pivotal or ‘test’ cases. Because in these cases, we are arguing over the criteria itself. Therefore, we are simply arguing past one another.

Therefore, those that base themselves solely on semantics are ‘stung’ by the inadequacy of semantics to resolve problems in pivotal or test cases.

Question 21

What is Dworkin’s aesthetic hypothesis?

Answer 21

All arguments about law are arguments over interpretation: a device that reveals a work of text in its best light.

Fit: Any interpretation needs to fit what has come before. Every judge is constrained by the need to establish continuity with previous decisions.

Integrity: The judge must pick an interpretation which follows from the principles of justice, fairness, and procedural due process and provide the best constructive interpretation of the community’s legal practices.

Question 22

What is Dworkin’s ‘right answers’ thesis?

Answer 22

Dworkin denies that moral considerations are simply an exercise of discretion.

When judges make a decision on a case, they look for an answer that they believe to be right (this is subjective, not objective).

Dworkin eventually reformulates this thesis into ‘interpreting law in its best light’ to make it clearer

Question 23

What is Dworkin’s chain novel?

Answer 23

A chain novel is one where each author writes one chapter, before passing it to another author who continues the story. Each subsequent author is constrained as to how to develop the storyline, but within the constraint there is still some scope for creativity.

By analogy, judges are like chain authors as well. Each judge is constrained by previous decisions in deciding on the law, but occasionally, some ground-breaking decisions such as Donoghue v Stevenson can still occur.

Question 24

What is Dworkin’s fit and integrity?

Answer 24

Fit: Any interpretation needs to fit what has come before. Every judge is constrained by the need to establish continuity with previous decisions.

Integrity: The judge must pick an interpretation which follows from the principles of justice, fairness, and procedural due process and provide the best constructive interpretation of the community’s legal practices.

Question 25

What are the various stages of interpretation? (Will ask in Exam)

Answer 25

Pre-interpretative stage: Gather individual elements of data

Interpretive stage: Look at all the data as a coherent whole and determine the type of observations that will unite the data as a coherent conceptual entity

Post-interpretive stage: See how this coherent conceptual entity can be applied to the particular dispute

Question 26

What is adjudicative integrity according to Dworkin?

Answer 26

The idea of adjudicative integrity requires judges to decide hard cases by trying to find a set of coherent principles about people’s rights and duties and form the best constructive interpretation of the political structure and legal doctrine of their community.