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Legal Reasoning 2

Ronald Dworkin

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Dworkins response to

Hart & the Sceptics

Rules, principles and justifications

Judges discretion: the distinction between easy andhard cases: Hart (peripheral); Dworkin (central)

Problems with the discretion in the model of rules:

Rules have an either/or quality: they can run out

strong discretion

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Three problems with Harts account

1. The nature of discretion

2. Concern about judicial law-making anddemocracy

3. Retrospectivity

For Dworkin: judges have only weak discretion

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legal practice is argumentative

Contains not only rules but principles

An example: Riggs v Palmer

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Policy v. principle

Arguments ofpolicy justify a political decisionby showing that the decision advances orprotects some collective goal of thecommunity as a whole

Arguments ofprinciple justify a politicaldecision by showing that the decision respectsor secures some individual or group right

I propose the thesis that judicial decisions in

civil cases, even in hard cases,characteristically are and should be generatedby principles not policy.

Principles have weight, not either/or, quality

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Law insists that force not be used or withheld, no

matter how useful that would be to the ends in

view, no matter how beneficial or noble those

ends, except as licensed or required by individualrights and responsibilities flowing from past

political decisions about when collective force is

justified

Taking rights seriously

Rights as trumps over utility

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Legal practice is a matter of principle, anembodiment of political morality

Foundational principle of political morality:people should be treated with equal concernand respect

Since law licenses coercion, *w]e want ourofficials to treat us as tied together in an

association of principle.

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Law as an interpretive practice Reading and developing a practice

constructively means seeing it in its best lightand making it the best it can be

Ascertaining the purpose of the practice Laws attitude is constructive: it aims, in the

interpretive spirit, to lay principle overpractice to show the best route to a betterfuture, keeping the right faith with the past.

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The interpreters point of view

3 stages of interpretation:

1. Pre-interpretive: identify basic materials: thisprovides the threshold test aboutfit

2. Interpretive: interpreter settles on some

general justification for the main elements ofthe practice identified in (1); Why is a practice ofthis general shape worth pursuing)

3. Post-interpretive: reforms the understanding

of what the practice really requires so as toserve better the justification accepted in (2)

The chain novel

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Hard cases arise, for any judge, when his threshold test does

not discriminate between two or more interpretations ofsome statute or line of cases.

There may be a (productive) tension between fit andjustification

Then he must choose between eligible interpretations byasking which shows the communitys structure of institutionsand decisions its public standards as a whole in a betterlight from the standpoint of political morality. His own moral

and political convictions are now directly engaged.

3 approaches and an example: protected (free) speech

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3 models

1. pragmatism: judgments and materials,

including principles, are deployed

instrumentally, to pursue whatever seems

best for the future

Dworkin: this model lacks a commitment to

working out common schemes of principle

(already) embodied in the law

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2. conventionalism: law is the outcome of

compromise, conventions of political

bargaining: the authority of (past) convention

Dworkin: this would allow strong discretion, it

lacks a more fundamental commitment to

principles within law

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3. Integrity

Integrity means consistency in principle with past

decisions and requires retrieving that principle inprecedent as the justification that best fits theinstitutional record.

*Compare: a person of integrity+

It demands that the public standards of thecommunity be both made and seen, so far as this ispossible, to express a single, coherent scheme of

justice and fairness in the right relation.

Integrity demands that the state act on a single,coherent set of principles even when its citizens aredivided about what the right principles of justice andfairness really are.

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continued

Judges who accept the interpretive ideal of integrity decidehard cases by trying to find, in some coherent set of principlesabout peoples rights and duties, the best constructiveinterpretation of the political structure and legal doctrine of

their community. They try to make that complex structure andrecord the best these can be It will include convictionsabout both fit and justification.

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Law and community Model of community as a model of principle

Members accept that they are governed by

common principles, not just by rules

hammered out in political compromises

Its collective decisions are matters of

obligation and not bare power

It has moral legitimacy in the name of

fraternity

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Some problems: Critical Legal Studies

(CLS)

Is this model of community plausible? (cfa conflictmodel)

Is this ideology masquerading as principle?

Does this account take sufficient notice of different

types of power? R Unger: Rule of Law (a) that power can be constrained

by rules, (b) the most significant forms of power areexercised by govt: both false)

What of counter-principles in the law? Do the criticisms of the rule- and fact-sceptics still have

force?

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Reading Bix,Jurisprudence, 91-103(Dworkin), 131-134 (rights); 231-235 (CLS).

R Dworkin, Laws Empire, chs 6&7 (esp: 215-224; 254-258; 271-275).

2 videos:

http://video.google.com/videoplay?docid=-8182465071522193147#

http://www.youtube.com/watch?v=742JyiqLhuk (start at: 13.10)

Veitch et al,Jurisprudence: Themes and Concepts, 111-116 (Dworkin); 116-121 (critique)

R Dworkin, Taking Rights Seriously. (excerpt here:http://www.nybooks.com/articles/10713)

R DworkinJustice in Robes

Lloyds Jurisprudence 8th ed., (Dworkin) 717-734; CLS (1209-1225)

Penner et alJurisprudence: Commentary and Materials, 287-290 (Dworkin);

310-323 (critique) R Unger, Law in Modern Society, 166-181.

N MacCormick, Reconstruction after deconstruction: A response to CLS(1990) 10 Oxford Journal of Legal Studies 539.

http://video.google.com/videoplay?docid=-8182465071522193147http://video.google.com/videoplay?docid=-8182465071522193147http://www.youtube.com/watch?v=742JyiqLhukhttp://www.nybooks.com/articles/10713http://www.nybooks.com/articles/10713http://www.nybooks.com/articles/10713http://www.nybooks.com/articles/10713http://www.nybooks.com/articles/10713http://www.youtube.com/watch?v=742JyiqLhukhttp://video.google.com/videoplay?docid=-8182465071522193147http://video.google.com/videoplay?docid=-8182465071522193147http://video.google.com/videoplay?docid=-8182465071522193147http://video.google.com/videoplay?docid=-8182465071522193147http://video.google.com/videoplay?docid=-8182465071522193147