Friday, November 02, 2007
PHIL2509 - First Essay
In this essay I will critically examine the account of principle and policy R. Dworkin presents in ‘Hard Cases’. I will explain how Dworkin understands ‘policy’, and how that notion is used as a justification of legal argument. I will then turn to a discussion of Dworkin’s concept of ‘principle’, and explain why he prefers to found his legal understanding upon this idea, rather than that of policy. Once I have clarified Dworkin’s position, I will contrast it with the kind of positivist legal understanding propounded by HLA Hart, who Dworkin explicitly addresses in his essay. Hart has no place for ‘principle’, and his position leaves wide scope for the play of policy in legal rationality. Dworkin heuristically develops a ‘super-judge’, Hercules, and builds a perfect legal system around him. He uses this example to explain his divergence from, and criticisms of, Hartian positivism. In particular, he believes that positivism is flawed because they suffer from an excessively narrow definition of what a legal system is. Further, while Hartian positivists allow judges wide discretionary powers in so called ‘hard cases’ , Dworkin constructs a legal theory that incorporates principles as a fundamental procedure in the judicial decision, and thus rids his system of the need for such discretion.
In ‘Hard Cases’, Dworkin contrasts policy based legal rationality with principle based legal rationality. I will begin this essay by explaining his notion of ‘policy.’ For Dworkin (in a wider political sense), policy is justification based on the collective goals of a wider community. When narrowed to its legal sense he arrives at a conception of policy in law where it is seen as:
a compromise among individual goals and purposes in search of the welfare of the community as a whole.
What Dworkin is saying here is that arguments justified by policy are relying on the changeable goals that the public set out to achieve in order to improve the society in which they live. Dworkin particularly expresses the point that policy overrides the interests of the individual for the sake of the majority. He argues that the goals of the majority are best represented by democracy in parliament as the legislature. For Dworkin, parliament represents the interests of collective bodies, while the courts represent the interests of the individual. Dworkin sees policy as justification for judicial decisions only when this role for the courts has been recognised by the legislature. It is Dworkin’s strongly defended view that since the courts do not operate as legislators that judicial decisions should not be made on grounds of policy. Policy can change quickly with the political climate, which in turn can undermine the power of precedents in those decisions reached in consideration of outmoded policy concerns. For Dworkin, judges should not be making policy decisions – where possible, they should not be making new law, but rather justifying their decisions in terms of history of law. Principles, as will be explained, are much more durable in their historical context, because they do not have their foundations undermined by changing opinion.
This then, is how Dworkin understands the notion of policy. He contrasts it with the notion of principle, which I will now explain. Dworkin’s notion of principle is derived from the political understanding of rights; such as equality. For Dworkin, the legal system contains political rights in so far as the written law aims to uphold them’ such as equality under the law. The influence these rights have over the creation of law is represented not in particular statutes but in the legal system as a whole by guiding notions of what ought to be. The light in which statute ought to be read are principles of law.
Dworkin prefers principles to policy in legal decision making because they have greater stability over time. This greater historical conformity allows for predictability in law and develops a culture within the courts of reaching for overall consistency in decision making and justifications. Judges should consider precedent and principle in making their decisions. Precedent creates consistency in judgement; where there is no precedent they should look to principles, to rights drawn from the decisions of the legislature, rather than to policy considerations as they understand them. This is radically different to a positivist understanding, as we will see. Dworkin argues that public goals are best represented in the democratic political domain. On the other hand, the courts exist for the sole purpose of dialogue between the individual and the law. So, arguments from principle have their roots in the political domain: rights are drawn from the people, not from judges. Rights are held by legal individuals and have direct legal consequence. Dworkin poses the relationship between principle and rights like this:
Arguments of principle are arguments intended to establish an individual right; arguments of policy are arguments intended to establish a collective goal.
The point highlighted in this quote is the ahistorical nature of arguments from principle, as opposed to the nature of policy based arguments. Dworkin has a place for arguments from policy – but the appropriate body to be making these decisions is not the judiciary, but the legislature.
We have at this point a working understanding of Dworkin’s rights thesis concerning law. I will now turn to a discussion of positivism, and in particular Dworkin’s relationship with it. A detailed account of how the rights thesis works in the courts shows a method of ascertaining a ‘right answer’ on the grounds of consistency. This position renders the positivist line of the allowing judges strong discretion unnecessary; further, Dworkin’s account for the correct role for court and legislature is such that such strong discretion (and its implicit reliance upon policy considerations) is beyond the proper role for the courts. The positivist definition of the legal system neither accounts for political rights nor includes principles. Hart defends the view that the legal system is a clear set of general rules to be applied to particular cases; where such rules are not clearly applicable to a certain set of facts, judges are to use their discretion. The purpose of precedent for positivism is to clarify these general rules, and to guide the judiciary in applying these rules to particular cases. As opposed to the positivist idea that judges are able to look at precedent and utilise it with discretion, Dworkin proposes that judges should look to the legislature’s intentions with regard to rights or principles, and attempt to apply these to the facts of the case.
To outline his differences with positivism, and criticisms of it, Dworkin makes use of an heuristic devise – Hercules, a judge of “superhuman skill, learning, patience and acumen.” He uses this tool to illustrate the process of decision making grounded in principle. The aim here for Dworkin is to illustrate how the rights thesis achieves ‘right answers’. Dworkin’s point is that history dictates only one answer, and Dworkin insists that if judges justify their arguments in historical terms, utilising only arguments of principle, then they can show why their decisions are the correct decisions.
The Hercules thought experiment begins from first principles (legally speaking) – with a constitution. The ideals of the drafters are made manifest within the document – their intentions guide both the drafting, and how this document should in future be interpreted. The legal theory of Hercules will attempt to develop in line with the intentions of the drafters of the constitution, as a document setting out abstract rights and setting out the relative weight of these abstract rights. From Hercules’ interpretation of the constitution, he develops a schema of the legal rights an individual can expect from law. Hercules interprets the statutes of law in reference to his legal theory in order to ascertain the relevant rights and how they apply to cases. If it is made explicit within any given statute that it is such as to over-ride certain constitutional legal rights, then this is permissible, but any decision on statute must still be made with the legal rights that all expect in mind. At every stage Dworkin is adopting a method of justification that rids the need for the judge to rely on her own discretion to justify an argument or reach a decision. Thereby the legal theory intends to incorporate the legal system as a conceptual whole where each argument and decision is historically justified by the influence the principles have over the interpretation of the written law. The legal theory then can establish the most appropriate way of enforcing the law.
We have now discussed how Dworkin’s rights thesis relates to positivism; we can now turn to the issue of how Dworkin deals with precedent. Positivists use precedent as a clarification tool, where the line between the general and the particular is sharpened by the judges’ discretion. For Dworkin precedent is the point at which judicial discretion enters the picture, and the point at which the influence of the legislature diminishes. Precedent is necessary as a tool with which to interpret legislation, but at this point legal decision making is at its most fuzzy and slippery and there is space for policy decisions to enter the picture. Dworkin attempts to close this door. He insists that precedents only informs decisions, and they only do this by the relevance they have to the pending decision, and how influential they are to the legal sphere in which the pending decision resides. He expresses the relationship between the preceding decision and the judge that made the decision and the present case like this:
They [Judges] cite reasons, in the form of precedents and principles, to justify a decision, but it is the decision, not some new and stated rule of law, that these precedents and principles are taken to justify.
If we agree with Dworkin’s statement then we can come to see what he means by the gravitational force of precedents. The place of the precedent in Hercules’ growing theory is both to develop an understanding of the reasons why a particular rule is enforced where it is enforced, and how the enforcement of the rule then affects the overall weighting of legal rights. In effect, allowing precedents into Hercules’ theory in this way, Dworkin argues, is a consideration of ‘fairness’. It allows judges to look at similar cases, the reasons behind the rules, the effect the decision has had on the legal realm as a whole, and then for the judge to be able to interpret it within her own understanding of law. Of course Dworkin insists that:
Hercules, when he defines the gravitational force of a precedent, must take into account only the arguments of principle that justify that precedent.
For if the precedent was justified by policy then the precedent may have very little in common with the pending decision, due to the potential that the aims of such policy may no longer be in force when the pending decision is to be made. To be influenced by a precedent ruling that is aimed at achieving a specific past goal would shape the pending decision in the face of the non-existent goal.
Dworkin’s legal theory uses principle driven precedent as another avenue by which judges can remove their personal discretion from the decision making. By analysing the historical context of precedent, and attributing a weight to the precedent, the precedent can be shown as justifying historical consistency in the decision reached. Historical consistency leads only to ‘right answers’ for Dworkin. He wants principles to apply to the whole field of law generally, as an overwhelming influence on decisions that construct a legal theory in which they replace the strong discretion of positivist legal theory. Principles inform each other under gravitational force and have a bearing (weight) on each case. Whenever principles come into conflict, according to Dworkin’s rights theory, it is within the range of the judge’s legal theory to acknowledge such weight. The validation of principles’ relative weights set against each other are determined by historical context. The historical context of principles extends into the realm of precedents in deciding how much weight one is to give to their arguments; keeping in mind that we are only considering precedents that are justified by principle. Dworkin identifies two maxims that give Hercules the justification to cut the gravitational force of precedents that are identified as mistakes. These are:
If he [Hercules] can show, by arguments of history by appeal to some sense of the legal community, that a particular principle, though it once had sufficient appeal to persuade a legislature or court to a legal decision, has now so little force that it is unlikely to generate any further such decisions, then the argument from fairness that support that principle is undercut. If he can show by arguments of political morality that such a principle, apart from its popularity, is unjust, then the argument from fairness that supports that principle is overridden.
These maxims allow a judge to formulate arguments grounded in principle that justify the removal of mistakes from the court. The inclusion of these maxims in the Hercules’ theory concludes Dworkin’s construction of a model theory on which to base judicial decision making.
In conclusion, Dworkin has seemingly produced an alternative to positivism’s notion of judicial discretion, basing it on the idea of principles. His position makes room for the power of rights in the political domain. Dworkin’s model replaces the need for strong discretion in court with a core reliance on judges developing their own legal theory that necessitate the inclusion of principles within a definition of the legal system. Such a definition is one of the key differences between Dworkin’s rights thesis and positivism. Dworkin’s judges have a different relationship with facts than those of the positivists: his theory allows judges to enter into a dialogue with their subjective interpretation and the tradition of principles. This gets us to the core difference between positivism and Dworkin, their relationship to facts. Dworkin allows his judges no discretion to make law – they discover the right principles by investigating the legislature’s intentions and determining the correct principles to apply in light of these intentions, while under positivism, judges are allowed wide discretion to interpret legislation and precedent in terms of broad policy considerations.
Bibliography
R. Audi (ed.), The Cambridge Dictionary of Philosophy, (edt. 2) Cambridge University Press, 1995
M. Bayles, ‘Hart vs. Dworkin’, Law and Philosophy, Vol 10. No. 4. (Nov 1991)
S. Brubaker, ‘Taking Dworkin Seriously’, The Review of Politics, Vol 47. No. 1. (Jan 1985)
J. Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review, Vol 40. No. 6. (July 1988)
R. Dworkin, ‘Hard Cases’, Harvard Law Review, Vol 88. No. 6. (Apr. 1975).
R. Dworkin, Taking Rights Seriously. London: Duckworth, 2005
End Notes
‘Hard Cases’ appeared in the April of 1975 in the Harvard Law Review
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
These are cases where the facts appear to be new in some sense, or in a new context, such that established precedent is unable to account for them, and where there is no clear statute that is able to determine the correct procedure.
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1061
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1060
Brubaker, ‘Taking Dworkin Seriously’, The Review of Politics. Pg 46
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
The issue of the rights of non-human entities is often raised in criticism of Dworkin. For instance the rights of corporations, and various levels of the state. Critics argue that Dworkin fails to see that rights also apply to the goals of collective bodies such as the state or corporation. However, in legal terms, such bodies are often represented as individuals.
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin pits arguments of policy and principle of law against each other in a similar fashion to rights vs. goals in Rawlsian political theory See Rawls A Political Theory of Justice, 1971
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1083
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1085
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1084
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1086
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1085
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1087
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1089
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1088
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1090
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1090
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1533
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1092
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1091
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1531
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1531
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1531
Dworkin uses this term in ‘Hard Cases’ as a signifier of a group of precedents that should no longer hold sway in certain cases. The identification of such precedents Dworkin outlines on pages 1099 and 1100 of ‘Hard Cases’; the means of identification he stresses should be accounted for within the framework of a judge’s theory of law [Dworkin builds the model one on fictional character Hercules].
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1101
.Hart criticises this position as naïvely optimistic. M. Bayles, ‘Hart vs. Dworkin’, Law and Philosophy. Pg 367
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1535
In ‘Hard Cases’, Dworkin contrasts policy based legal rationality with principle based legal rationality. I will begin this essay by explaining his notion of ‘policy.’ For Dworkin (in a wider political sense), policy is justification based on the collective goals of a wider community. When narrowed to its legal sense he arrives at a conception of policy in law where it is seen as:
a compromise among individual goals and purposes in search of the welfare of the community as a whole.
What Dworkin is saying here is that arguments justified by policy are relying on the changeable goals that the public set out to achieve in order to improve the society in which they live. Dworkin particularly expresses the point that policy overrides the interests of the individual for the sake of the majority. He argues that the goals of the majority are best represented by democracy in parliament as the legislature. For Dworkin, parliament represents the interests of collective bodies, while the courts represent the interests of the individual. Dworkin sees policy as justification for judicial decisions only when this role for the courts has been recognised by the legislature. It is Dworkin’s strongly defended view that since the courts do not operate as legislators that judicial decisions should not be made on grounds of policy. Policy can change quickly with the political climate, which in turn can undermine the power of precedents in those decisions reached in consideration of outmoded policy concerns. For Dworkin, judges should not be making policy decisions – where possible, they should not be making new law, but rather justifying their decisions in terms of history of law. Principles, as will be explained, are much more durable in their historical context, because they do not have their foundations undermined by changing opinion.
This then, is how Dworkin understands the notion of policy. He contrasts it with the notion of principle, which I will now explain. Dworkin’s notion of principle is derived from the political understanding of rights; such as equality. For Dworkin, the legal system contains political rights in so far as the written law aims to uphold them’ such as equality under the law. The influence these rights have over the creation of law is represented not in particular statutes but in the legal system as a whole by guiding notions of what ought to be. The light in which statute ought to be read are principles of law.
Dworkin prefers principles to policy in legal decision making because they have greater stability over time. This greater historical conformity allows for predictability in law and develops a culture within the courts of reaching for overall consistency in decision making and justifications. Judges should consider precedent and principle in making their decisions. Precedent creates consistency in judgement; where there is no precedent they should look to principles, to rights drawn from the decisions of the legislature, rather than to policy considerations as they understand them. This is radically different to a positivist understanding, as we will see. Dworkin argues that public goals are best represented in the democratic political domain. On the other hand, the courts exist for the sole purpose of dialogue between the individual and the law. So, arguments from principle have their roots in the political domain: rights are drawn from the people, not from judges. Rights are held by legal individuals and have direct legal consequence. Dworkin poses the relationship between principle and rights like this:
Arguments of principle are arguments intended to establish an individual right; arguments of policy are arguments intended to establish a collective goal.
The point highlighted in this quote is the ahistorical nature of arguments from principle, as opposed to the nature of policy based arguments. Dworkin has a place for arguments from policy – but the appropriate body to be making these decisions is not the judiciary, but the legislature.
We have at this point a working understanding of Dworkin’s rights thesis concerning law. I will now turn to a discussion of positivism, and in particular Dworkin’s relationship with it. A detailed account of how the rights thesis works in the courts shows a method of ascertaining a ‘right answer’ on the grounds of consistency. This position renders the positivist line of the allowing judges strong discretion unnecessary; further, Dworkin’s account for the correct role for court and legislature is such that such strong discretion (and its implicit reliance upon policy considerations) is beyond the proper role for the courts. The positivist definition of the legal system neither accounts for political rights nor includes principles. Hart defends the view that the legal system is a clear set of general rules to be applied to particular cases; where such rules are not clearly applicable to a certain set of facts, judges are to use their discretion. The purpose of precedent for positivism is to clarify these general rules, and to guide the judiciary in applying these rules to particular cases. As opposed to the positivist idea that judges are able to look at precedent and utilise it with discretion, Dworkin proposes that judges should look to the legislature’s intentions with regard to rights or principles, and attempt to apply these to the facts of the case.
To outline his differences with positivism, and criticisms of it, Dworkin makes use of an heuristic devise – Hercules, a judge of “superhuman skill, learning, patience and acumen.” He uses this tool to illustrate the process of decision making grounded in principle. The aim here for Dworkin is to illustrate how the rights thesis achieves ‘right answers’. Dworkin’s point is that history dictates only one answer, and Dworkin insists that if judges justify their arguments in historical terms, utilising only arguments of principle, then they can show why their decisions are the correct decisions.
The Hercules thought experiment begins from first principles (legally speaking) – with a constitution. The ideals of the drafters are made manifest within the document – their intentions guide both the drafting, and how this document should in future be interpreted. The legal theory of Hercules will attempt to develop in line with the intentions of the drafters of the constitution, as a document setting out abstract rights and setting out the relative weight of these abstract rights. From Hercules’ interpretation of the constitution, he develops a schema of the legal rights an individual can expect from law. Hercules interprets the statutes of law in reference to his legal theory in order to ascertain the relevant rights and how they apply to cases. If it is made explicit within any given statute that it is such as to over-ride certain constitutional legal rights, then this is permissible, but any decision on statute must still be made with the legal rights that all expect in mind. At every stage Dworkin is adopting a method of justification that rids the need for the judge to rely on her own discretion to justify an argument or reach a decision. Thereby the legal theory intends to incorporate the legal system as a conceptual whole where each argument and decision is historically justified by the influence the principles have over the interpretation of the written law. The legal theory then can establish the most appropriate way of enforcing the law.
We have now discussed how Dworkin’s rights thesis relates to positivism; we can now turn to the issue of how Dworkin deals with precedent. Positivists use precedent as a clarification tool, where the line between the general and the particular is sharpened by the judges’ discretion. For Dworkin precedent is the point at which judicial discretion enters the picture, and the point at which the influence of the legislature diminishes. Precedent is necessary as a tool with which to interpret legislation, but at this point legal decision making is at its most fuzzy and slippery and there is space for policy decisions to enter the picture. Dworkin attempts to close this door. He insists that precedents only informs decisions, and they only do this by the relevance they have to the pending decision, and how influential they are to the legal sphere in which the pending decision resides. He expresses the relationship between the preceding decision and the judge that made the decision and the present case like this:
They [Judges] cite reasons, in the form of precedents and principles, to justify a decision, but it is the decision, not some new and stated rule of law, that these precedents and principles are taken to justify.
If we agree with Dworkin’s statement then we can come to see what he means by the gravitational force of precedents. The place of the precedent in Hercules’ growing theory is both to develop an understanding of the reasons why a particular rule is enforced where it is enforced, and how the enforcement of the rule then affects the overall weighting of legal rights. In effect, allowing precedents into Hercules’ theory in this way, Dworkin argues, is a consideration of ‘fairness’. It allows judges to look at similar cases, the reasons behind the rules, the effect the decision has had on the legal realm as a whole, and then for the judge to be able to interpret it within her own understanding of law. Of course Dworkin insists that:
Hercules, when he defines the gravitational force of a precedent, must take into account only the arguments of principle that justify that precedent.
For if the precedent was justified by policy then the precedent may have very little in common with the pending decision, due to the potential that the aims of such policy may no longer be in force when the pending decision is to be made. To be influenced by a precedent ruling that is aimed at achieving a specific past goal would shape the pending decision in the face of the non-existent goal.
Dworkin’s legal theory uses principle driven precedent as another avenue by which judges can remove their personal discretion from the decision making. By analysing the historical context of precedent, and attributing a weight to the precedent, the precedent can be shown as justifying historical consistency in the decision reached. Historical consistency leads only to ‘right answers’ for Dworkin. He wants principles to apply to the whole field of law generally, as an overwhelming influence on decisions that construct a legal theory in which they replace the strong discretion of positivist legal theory. Principles inform each other under gravitational force and have a bearing (weight) on each case. Whenever principles come into conflict, according to Dworkin’s rights theory, it is within the range of the judge’s legal theory to acknowledge such weight. The validation of principles’ relative weights set against each other are determined by historical context. The historical context of principles extends into the realm of precedents in deciding how much weight one is to give to their arguments; keeping in mind that we are only considering precedents that are justified by principle. Dworkin identifies two maxims that give Hercules the justification to cut the gravitational force of precedents that are identified as mistakes. These are:
If he [Hercules] can show, by arguments of history by appeal to some sense of the legal community, that a particular principle, though it once had sufficient appeal to persuade a legislature or court to a legal decision, has now so little force that it is unlikely to generate any further such decisions, then the argument from fairness that support that principle is undercut. If he can show by arguments of political morality that such a principle, apart from its popularity, is unjust, then the argument from fairness that supports that principle is overridden.
These maxims allow a judge to formulate arguments grounded in principle that justify the removal of mistakes from the court. The inclusion of these maxims in the Hercules’ theory concludes Dworkin’s construction of a model theory on which to base judicial decision making.
In conclusion, Dworkin has seemingly produced an alternative to positivism’s notion of judicial discretion, basing it on the idea of principles. His position makes room for the power of rights in the political domain. Dworkin’s model replaces the need for strong discretion in court with a core reliance on judges developing their own legal theory that necessitate the inclusion of principles within a definition of the legal system. Such a definition is one of the key differences between Dworkin’s rights thesis and positivism. Dworkin’s judges have a different relationship with facts than those of the positivists: his theory allows judges to enter into a dialogue with their subjective interpretation and the tradition of principles. This gets us to the core difference between positivism and Dworkin, their relationship to facts. Dworkin allows his judges no discretion to make law – they discover the right principles by investigating the legislature’s intentions and determining the correct principles to apply in light of these intentions, while under positivism, judges are allowed wide discretion to interpret legislation and precedent in terms of broad policy considerations.
Bibliography
R. Audi (ed.), The Cambridge Dictionary of Philosophy, (edt. 2) Cambridge University Press, 1995
M. Bayles, ‘Hart vs. Dworkin’, Law and Philosophy, Vol 10. No. 4. (Nov 1991)
S. Brubaker, ‘Taking Dworkin Seriously’, The Review of Politics, Vol 47. No. 1. (Jan 1985)
J. Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review, Vol 40. No. 6. (July 1988)
R. Dworkin, ‘Hard Cases’, Harvard Law Review, Vol 88. No. 6. (Apr. 1975).
R. Dworkin, Taking Rights Seriously. London: Duckworth, 2005
End Notes
‘Hard Cases’ appeared in the April of 1975 in the Harvard Law Review
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
These are cases where the facts appear to be new in some sense, or in a new context, such that established precedent is unable to account for them, and where there is no clear statute that is able to determine the correct procedure.
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1061
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1060
Brubaker, ‘Taking Dworkin Seriously’, The Review of Politics. Pg 46
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
The issue of the rights of non-human entities is often raised in criticism of Dworkin. For instance the rights of corporations, and various levels of the state. Critics argue that Dworkin fails to see that rights also apply to the goals of collective bodies such as the state or corporation. However, in legal terms, such bodies are often represented as individuals.
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin pits arguments of policy and principle of law against each other in a similar fashion to rights vs. goals in Rawlsian political theory See Rawls A Political Theory of Justice, 1971
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1083
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1085
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1084
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1086
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1085
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1087
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1089
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1088
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1090
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1090
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1533
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1092
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1091
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1531
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1531
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1531
Dworkin uses this term in ‘Hard Cases’ as a signifier of a group of precedents that should no longer hold sway in certain cases. The identification of such precedents Dworkin outlines on pages 1099 and 1100 of ‘Hard Cases’; the means of identification he stresses should be accounted for within the framework of a judge’s theory of law [Dworkin builds the model one on fictional character Hercules].
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1101
.Hart criticises this position as naïvely optimistic. M. Bayles, ‘Hart vs. Dworkin’, Law and Philosophy. Pg 367
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1535
Labels: essay, law, philosophy
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