Dworkin Flashcards
Dworkin rejects Hart’s theory on rules
laws contains not just rules –> contains set of principles which act as guidelines to inform the law e.g. no one should benefit from their own wrong
Key claim:
The law consists of the explicitly adopted rules plus the best moral principles that can be interpreted as lying behind those rules.
judges must interpret which moral principles lie behind the explicitly adopted rules.
Key claim: The law consists of the explicitly adopted rules plus the best moral principles that can be interpreted as lying behind those rules.
So for Dworkin judges must interpret which moral principles lie behind the explicitly adopted rules. There are two dimensions of interpretation:
Formal and substantive dimension
Dworkin which occupies a theoretical position somewhere between natural law and legal positivism maintains that
there must be moral grounds for the assertions of the existence of legal rights and duties. That is, legal rights are a species of moral rights.
His theory of
His theory of law as integrity is one of the leading contemporary views of the nature of law
Obligation arises not from
coercion, nor fear, but fidelity to a scheme of principles. It is a felt internal obligation based on a commitment to principles rather than an external force.
Why we obey the law
Associative obligations
belonging to belonging to a family or neighbourhood you incur certain obligations without entering into any quasi or strict contract. Recognise family obligations parents to children, siblings to siblings, children to parents
. Belonging to a society is akin to belonging to a family and gives rise to obligation by association.
Dworkin’s critique of Hart. His key insight is his perception that when judges reason about hard cases
they appeal to principles and standards other than positivistic rules,
What happens according to Hart when judges appeal to principles
these principles as standing outside the law- –> judges are then no longer bound by any legal authority; they are acting outside the law.
difference between principle and rule
principle, such as the principle to which the court referred in Riggs, can, according to Dworkin, remain a principle even though it may not always be followed
In Riggs v Palmer, Dworkin argues
argues the court relied on the principle that “no one should profit from his or her own wrongdoing”
Dworkin argues that Hart’s view is descriptively inaccurate
courts do, Dworkin claims, invoke principles and background rights in making decisions
Dworkin argues that Hart’s view is morally unattractive
it leaves judges free to exercise their discretion in other ways, i.e., by invoking policy considerations and ignoring a defendant’s background rights
According to Hart, ‘ought’
merely reflects the presence of some standard of criticism; one of these standards is a moral standard but not all standards are moral.
We say to our neighbour, “You ought not to lie,” and that may certainly be a moral judgment, but we should remember that the baffled poisoner may say, “I ought to have given her a second dose.“
Natural theorists argue that when faced with indeterminate cases,
judges have to decide indeterminate cases according to how the law ought to be.
Therefore, there is a connection between how the law is and how it ought to b
how does law acquire normative qualit according to hart
internal aspect which is the feeling by an individual of being in some sense obligated to follow the rule, otherwise known as the critical reflective attitude
Hart uses the problem of “the core and the penumbra” to illustrate
laws must be related to the meaning of the words, not any natural or moral belief.
how would judge interpret law in a penumbra case
require judge to exercise discretion
look at definition of the words of the statute.
A component of the Hart–Fuller debate is the controversy over
legal interpretation
Hart, with his famous example of a rule prohibiting vehicles in the park, argued that all rules have
a core set of settled applications despite also having a fringe or penumbra of uncertainty
Law as integrity holds a vision for judges which states that
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.
in general, law of integrity can be thought of as
interpreting law according to community
The purpose of law according to Dworkin
to portray the law in the best possible light as a coherent body that treats all citizens equally, speaking with one voice to justifiably coerce them
what judges must aim at
Dworkin challenges
modern positivism and proposes an anti-positivist theory, law as integrity
neither naturalist or positivist
Dworkin does not agree
with rule of recognition
Dworkin says judges do not just
apply rules, which are black and white
they also consider principles when making their decision
Principles are limited by
fit, history and practice
Example by Dworkin
Riggs v Palmer
facts
Grandfather named his grandson in will, who murdered him
Example by Dworkin
Riggs v Palmer
facts
Grandfather named his grandson in will, who murdered him
Example by Dworkin
Riggs v Palmer
Decision by Court
court did not allow grandson to inherit (no statute) - no legal basis
applied no person may profit from their own wrong
dworkin’s theory developed from his
extensive criticism of positivism
Ronald Dworkin presents a theory of law of Integrity, which aims to
challenge Legal Positivism and present a better understanding of adjudication in respect to law.
Dworkin’s novel analogy
novelist writing a chain novel, which has been passed from author to author.
each author has to find an interpretation upon which to write his piece, while the interpretation must be one that fits well with the story so far handed from what has been written before, and which makes the story the best it can be
In defining integrity, Dworkin states
According to law as integrity, propositions, of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice”
sure this process of interpretation according to integrity works for cases
that have legal history of prior cases where the precedent has been set,
how does law as integrity work for new or fresh cases
Dworkin’s reply to this is in the definition of integrity itself
when there is no precedent and so no clear interpretations to be taken, the interpretation of the case can be based on the principles of law as integrity, such as justice and fairness.
hen there is no precedent and so no clear interpretations to be taken, the interpretation of the case can be based on the principles of law as integrity, such as justice and fairness. Of course, here again, the right answer the judge arrives at will be
dependent upon his or her political and moral conviction
how the integrity as law system could work
Dworkin’s Right Answer thesis, such that no matter how hard the case is, there is always one right answer for the case
The chain novel example for integrity as law is a criticism of positivism because it suggests
that law is a coherent whole and an interpretation of law requires interpreting the entire legal history of the law, whereas in positivism judges exercise discretion and make law
how do coherent principles of law as integrity criticse positivism
suggest that judges apply moral convictions in cases and therefore morality is involved in law in an epistemic sense, while positivism holds that morality is not inherent or necessary in law.
to demonstrate that how the integrity as law system could work, Dworkin presents to the reader the metaphor of an imaginary person named Hercules
an ideal judge, immensely wise and patient, and is omnipotent of legal knowledge
- regardless of the case Hercules is given, Hercules will, due to the all the attributes attributed to him above, Hercules will always come down to one right answer for the case.
- This is Dworkin’s Right Answer thesis,
His core idea is that the very distinction
between what the law is and what it ought to be, is much more blurred than legal positivism would have it: Determining what the law is in particular cases inevitably depends on moral-political considerations about what it ought to be
In the 1970s Dworkin (1977) argued that the falsehood of legal positivism resides in the fact that it is
legal positivism envisaged that the law consists of rules only. BUT in addition to rules, law is partly determined by principles.
Rules, Dworkin maintained,
apply in an “all or nothing fashion.” If the rule applies to the circumstances, it determines a particular legal outcome. If it does not apply, it is simply irrelevant to the outcome.
principles
do not determine an outcome even if they clearly apply to the pertinent circumstances.
Principles provide judges with reasons. may be relatively strong, or weak, but they are never “absolute.
Such reasons, by themselves, cannot determine an outcome, as rules do.
. According to Dworkin’s theory, unlike legal rules, which may or may not have something to do with morality
principles are essentially moral in their content.
In the 1980s Dworkin radicalized his views about these issues, striving to ground his anti-positivist legal theory on a general theory
of interpretation, and emphasizing law’s profound interpretative nature.
Dworkin’s interpretative theory of law
The main argument consists of two main premises. The first thesis maintains that
determining what the law requires in each and every particular case necessarily involves interpretative reasoning. Any statement of the form “According to the law in SS, xx has a right/duty etc., to yy” is a conclusion of some interpretation or other.
Dworkin’s interpretative theory of law
The main argument consists of two main premises. according to the second premise,
interpretation always involves evaluative considerations
Dworkin’s interpretative theory of law
Clearly enough, one who accepts both these theses must conclude
the Separation Thesis is fundamentally flawed.
his theory – ‘law as integrity’ – describes legal interpretation essentially as follows:
legal interpreter first arrives at a set of moral principles that fit the ‘institutional legal materials’ and put them in their best light; and then, using those principles, the interpreter establishes the correct legal rights and duties.
according to Dworkin’s own theory, the purpose of the law is
justification of state coercion: the law is aimed at justifying the way in which the state exercises its coercive powers.
The law fulfils this purpose, says Dworkin, by
demanding that every legal requirement conform to certain moral principles. These moral principles are those that best ‘fit and justify’ the ‘institutional legal materials’.
These are the moral principles which best ‘fit and justify’ the ‘institutional legal materials’.
The legal interpreter, examining these legal materials
example
must arrive at a set of moral principles that best fits these materials and puts them in their best light.
principle that a man may not benefit from a wrong he committed is presumably a principle that fits the legal materials (it underlies many statutes and many judicial doctrines), and it puts these materials in their best light (it makes these materials look good and desirable).
