Dworkin

Dworkin

Dworkin's key works:
1. Taking Rights Seriously 1977
  1. Model of Rules Chpt. 2&3
  2. HC Chpt. 4
2. Law's Empire 1986
  1. Chpt. 3 Jurisprudence revisited
  2. Chpt. 6 Law as integrity
3. Freedom's Law 1996
4. Justice in Robes 2006
Key aspects of Theory
1. Challenge to modern positivism
  1. Not a positivist
  2. Not a naturalist
  3. Offers an inbetween
2. Proposes a theory of law based on antipositivism
3. Builds his critique off hart's account of soft positivisms
  1. rejects rule of recognition
  2. there are not just rules- focus is on seeking the 'right answer'
    1. This is necessary to decide Hard Cases
      1. Assigns importance to rights which trump other justifications when dealing with HC
        Rights theory
      2. What is a HC?
  3. Rejection of Hart, espouses an interpretative theory in HC
    1. Has 4 stages (idea of integrity central)
      1. Stage 1: Semantic stage
        There is a semantic sting
        Pg 42 Law's Empire
        If legal arguments are about factors that make a statement legally valid then lawyers not using same factual criteria
        Arguments are about which criteria to use- doomed to fail
      2. Stage 2: Jurisprudential stage
        Interpretative theory is applied in order to realise integrity
      3. Stage 4: Adjudicative stage
        What judges should do in HC
      4. Stage 3: Doctrinal stage
        Where values are applied in order to establish factors for statements of law
Rules v Prcinples
1. Rules apply in a black and white fashion
2. Not just legal rules but legal principles which give support to the decision
  1. Principles are limited by:
    1. fit
    2. fashion
    3. history
3. Use of principles + rules mean judges not afforded wide discretion
  1. Discretion
    1. Judges do not have strong discretion
    2. Weak discretion when deciding what principles to apply
4. Constitutional values are legal principles
5. E.g. Riggs v Palmer
  1. Grandfather left money to grandson in will
  2. Grandson murdered grandfather
  3. Grandson not awarded money by courts despite no legislation preventing it
    1. There is a legal principle that no one should profit from their own wrong
      1. This does not mean to say judges have discretion to enforce policy this goes beyond remit
      2. Can impose backward looking principles not forward looking policy
Hercules
1. Don't have much discreetion
  1. Therefore, have a Herculean task of reaching one right answer
2. 'The law may not be a seamless web; but the plaintiff is entitled to ask Hercules to treat it as if it were'
3. to find 'right answer' in HC he must develop a theory about the character of law in front of him
  1. Find: 'the soundest theory of law'
    1. Mrs Sorenson Case
      1. Hypothetically takes medication
      2. Produced under various names= gives her heart damage
      3. Lawyers sue companies who manufacture
        They argue: all drugs manufacturers should be liable
        Drug company lawyers: no one liable unless prove who caused it
      4. Dworkin: interpretative approach should be taken
        Morality cannot be entirely excluded
        Case illustrates how complicated law is, sometimes results in moral judgements

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