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8722721
Dworkin
Descrição
Law Mapa Mental sobre Dworkin, criado por Emily Charlesworth em 29-04-2017.
Sem etiquetas
jurisprudence
law
Mapa Mental por
Emily Charlesworth
, atualizado more than 1 year ago
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Criado por
Emily Charlesworth
mais de 7 anos atrás
21
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Resumo de Recurso
Dworkin
Dworkin's key works:
Taking Rights Seriously 1977
Model of Rules Chpt. 2&3
HC Chpt. 4
Law's Empire 1986
Chpt. 3 Jurisprudence revisited
Chpt. 6 Law as integrity
Freedom's Law 1996
Justice in Robes 2006
Key aspects of Theory
Challenge to modern positivism
Not a positivist
Not a naturalist
Offers an inbetween
Proposes a theory of law based on antipositivism
Builds his critique off hart's account of soft positivisms
rejects rule of recognition
there are not just rules- focus is on seeking the 'right answer'
This is necessary to decide Hard Cases
Assigns importance to rights which trump other justifications when dealing with HC
Rights theory
What is a HC?
Rejection of Hart, espouses an interpretative theory in HC
Has 4 stages (idea of integrity central)
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
Stage 2: Jurisprudential stage
Interpretative theory is applied in order to realise integrity
Stage 4: Adjudicative stage
What judges should do in HC
Stage 3: Doctrinal stage
Where values are applied in order to establish factors for statements of law
Rules v Prcinples
Rules apply in a black and white fashion
Not just legal rules but legal principles which give support to the decision
Principles are limited by:
fit
fashion
history
Use of principles + rules mean judges not afforded wide discretion
Discretion
Judges do not have strong discretion
Weak discretion when deciding what principles to apply
Constitutional values are legal principles
E.g. Riggs v Palmer
Grandfather left money to grandson in will
Grandson murdered grandfather
Grandson not awarded money by courts despite no legislation preventing it
There is a legal principle that no one should profit from their own wrong
This does not mean to say judges have discretion to enforce policy this goes beyond remit
Can impose backward looking principles not forward looking policy
Hercules
Don't have much discreetion
Therefore, have a Herculean task of reaching one right answer
'The law may not be a seamless web; but the plaintiff is entitled to ask Hercules to treat it as if it were'
to find 'right answer' in HC he must develop a theory about the character of law in front of him
Find: 'the soundest theory of law'
Mrs Sorenson Case
Hypothetically takes medication
Produced under various names= gives her heart damage
Lawyers sue companies who manufacture
They argue: all drugs manufacturers should be liable
Drug company lawyers: no one liable unless prove who caused it
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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