Dworkin Flashcards
1
Q
Dworkin rejects Hart’s theory on rules
A
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
2
Q
Key claim:
A
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.
3
Q
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:
A
Formal and substantive dimension
4
Q
Dworkin which occupies a theoretical position somewhere between natural law and legal positivism maintains that
A
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.
5
Q
His theory of
A
His theory of law as integrity is one of the leading contemporary views of the nature of law
6
Q
Obligation arises not from
A
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.
7
Q
Why we obey the law
Associative obligations
A
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.
8
Q
Dworkin’s critique of Hart. His key insight is his perception that when judges reason about hard cases
A
they appeal to principles and standards other than positivistic rules,
9
Q
What happens according to Hart when judges appeal to principles
A
these principles as standing outside the law- –> judges are then no longer bound by any legal authority; they are acting outside the law.
10
Q
difference between principle and rule
A
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
11
Q
In Riggs v Palmer, Dworkin argues
A
argues the court relied on the principle that “no one should profit from his or her own wrongdoing”
12
Q
Dworkin argues that Hart’s view is descriptively inaccurate
A
courts do, Dworkin claims, invoke principles and background rights in making decisions
13
Q
Dworkin argues that Hart’s view is morally unattractive
A
it leaves judges free to exercise their discretion in other ways, i.e., by invoking policy considerations and ignoring a defendant’s background rights
14
Q
According to Hart, ‘ought’
A
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.“
15
Q
Natural theorists argue that when faced with indeterminate cases,
A
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
16
Q
how does law acquire normative qualit according to hart
A
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
17
Q
Hart uses the problem of “the core and the penumbra” to illustrate
A
laws must be related to the meaning of the words, not any natural or moral belief.
18
Q
how would judge interpret law in a penumbra case
A
require judge to exercise discretion
look at definition of the words of the statute.
19
Q
A component of the Hart–Fuller debate is the controversy over
A
legal interpretation
20
Q
Hart, with his famous example of a rule prohibiting vehicles in the park, argued that all rules have
A
a core set of settled applications despite also having a fringe or penumbra of uncertainty
21
Q
A
22
Q
A
23
Q
Law as integrity holds a vision for judges which states that
A
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.
24
Q
in general, law of integrity can be thought of as
A
interpreting law according to community
25
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
26
Dworkin challenges
modern positivism and proposes an anti-positivist theory, law as integrity
neither naturalist or positivist
27
Dworkin does not agree
with rule of recognition
28
Dworkin says judges do not just
apply rules, which are black and white
they also consider principles when making their decision
29
Principles are limited by
fit, history and practice
30
Example by Dworkin
Riggs v Palmer
facts
Grandfather named his grandson in will, who murdered him
31
Example by Dworkin
Riggs v Palmer
facts
Grandfather named his grandson in will, who murdered him
32
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
33
34
dworkin's theory developed from his
extensive criticism of positivism
35
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.
36
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
37
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”
38
sure this process of interpretation according to integrity works for cases
that have legal history of prior cases where the precedent has been set,
39
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.
40
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
41
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
42
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
43
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.
44
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,
45
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
46
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.
47
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.
48
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.
49
. 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.
50
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.
51
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.
52
Dworkin’s interpretative theory of law
The main argument consists of two main premises. according to the second premise,
interpretation always involves evaluative considerations
53
Dworkin’s interpretative theory of law
Clearly enough, one who accepts both these theses must conclude
the Separation Thesis is fundamentally flawed.
54
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.
55
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.
56
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’.
57
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).
58
Any legal requirement must then conform, in some way (we will examine how), to this principle.
So the method with which legal interpreters arrive at the correct legal rights and duties is essentially this:
1. First arrive at a set of moral principles which is evidenced in the institutional legal materials (that is, that fits the legal materials) AND
2. which makes these legal materials appear good and desirable (that is, that puts these materials in their best light); AND
3. THEN determine what the law requires by making sure that any legal requirement conforms to these moral principles.
59
Dworkin believes that the correct conception of law is the conception he calls ‘law as integrity’, and according to that conception
The correct legal requirements are those which conform to the set of moral principles that best fits the **institutional legal materials** and puts them in their best light.
not fit and best light requirements where conception that best fits legal practice and puts it in its best light
60
according ‘law as integrity’ all legal requirements must conform to the
set of moral principles that best fits legal practice and puts it in its best light.
61
It is essential for Dworkin that
The law, says Dworkin, must ‘speak with one voice’: a proposition is legally valid only if it conforms to the same set of moral principles to which all other legal propositions conform.
62
Dworkin’s principal argument in defence of ‘law as integrity
appeals to our instinct: our instinct demonstrates that we value the idea of integrity, and that we expect our laws to respect it
63
The law must
‘settle on some coherent principle’ and never ‘affirm for some people a principle it denies to others’.
e.g. law settling on a coherent principle, says Dworkin, is a statute prohibiting abortion which contains an exception for pregnancies caused by rape; an example of a law failing to settle on a coherent principle is a statute permitting abortion only to ‘women born in one specified decade each century’: only the former constitutes a ‘principled’ statutory scheme.8
64
This “positivist” approach was the dominant school of legal philosophy for much
of the 20th century.
65
The law, Dworkin maintained, comprises not only rules but principles; after all
where rules do not exist judges look to the legal and moral principles enshrined in the general body of law to make their rulings
66
Dworkin developed the theory of “Law as integrity”, arguing that judges have a duty
to decide cases in such a manner that the law becomes more coherent and appears as the product of a single moral vision.
67
In Anglo-American society, he maintained, that judges have a duty to decide cases in such a manner that the law becomes more coherent and appears as the product of a single moral vision.
that vision is based on the idea (enshrined in America in the Constitution) that the law exists to
“benefit society not just by providing predictability and procedural fairness, or in some instrumental way, but by securing a kind of equality among citizens that make their community more genuine and improves its moral justification for exercising the political power it does”
68
Thus, while legislatures often pass laws which contravene the principle of integrity, in interpreting those laws judges have a duty to
pply the principle.
69
Judges who accept the interpretative ideal of integrity decide hard cases by
trying to find, in some coherent set of principles about people’s rights and duties, the best constructive interpretation of the political structure and legal doctrine of their community. They try to make that complex structure the best it can be
70
Though Dworkin never claimed to believe that there was an absolutely right answer to everything, running through all his work was the concept that there is
a right answer to all legal questions.
71
Interesting fact about Dworkin
avoids serious consideration of the history of jurisprudence when developing his own theory of law.
72
y Dworkin avoids serious consideration of the history of jurisprudence when developing his own theory of law
this might be partly due to the natural sting. describe
Sufferers of this sting assume that b/c natural law theory is premised upon metaphysical and/or religious premises that they regard as unacceptable, legal theories of the past that invoke natural law are tainted by the association and therefore unworthy of serious consideration
73
Dworkin clearly shares with natural lawyers
the anti-positivist view that law and morality are in some sense inherently connected;
74
8 Dworkin says that if natural law simply implies that the content of law sometimes depends on answers to moral questions he is
‘‘guilty of natural law’’
75
Natural law theory—at least as it was
historically formulated—made claims of a metaphysical nature.
76
For Dworkin, legal interpretation is a subset of this sort of
moral and political interpretation
77
In a common law setting, the judge confronted by a hard case will examine
past cases for evidence of underlying principles and seek a form of reflective equilibrium that establishes a theoretical justification of the old cases and right legal answers in new ones
78
Legal principles—like ‘‘no one should profit from their own wrong’’—have a
‘‘dimension of weight’’: unlike rules, which provide all-or-nothing answers when they apply,
the weight of principles will vary depending upon the circumstances of the case
79
For interpretation, according to Dworkin,
has an irreducibly moral element; the relevant materials must be interpreted in their best moral light.
legal interpretation necessarily aspires to provide a moral justification for the law's claim to obedience
80
The notion that law is an
the notion that
interpretive practice, in which legal materials must be given meaning by purposive agents
legal decisions must be morally justifiable in order to generate an obligation to obey
81
Dworkin develops his theory of law by asking
When faced with a case having no conventionally accepted resolution,
how judges actually do, or should, decide "hard cases:
When faced with a case having no conventionally accepted resolution, judges seek to "interpret" what they take to be the relevant legal authorities and to discern what result the relevant authorities, when properly interpreted, dictate
82
According to Dworkin, judges should identify legal rights and obligations on the basis that all the rights and obligations
express the community's conception of justice and fairness.
83
when the judge goes about adjudicating, he must always call upon
the network of political structures and decisions of his community
84
in a "pre-interpretative stage" the judge
identifies legislation and case law
85
interpretation of the judge's be consistent with
the law identified at the "pre-interpretative stage", but also the law must be interpreted in a way which is the best in the participants' mind
86
In Dworkin's theory, there are two basic elements of law,
one is a retrospective element, which he calls "fit", and the other is a prospective element, which he calls "justification"
87
Dworkin points out that in exercising the function of fit and justificaion, judges are required to
construct a theory of law which can both fit past legal decisions and makes the law as good as possible
88
udges are required to construct a theory of law which can both fit past legal decisions and makes the law as good as possible. In doing this, the judges are required to
search out legal principles which have been previously mentioned in the historical and social characteristics of the legal system and then improve the law for the future by "making it more coherent"
89
in dealing with a certain case, the judge should try to
interpret the law in a way which promotes the coherence of the legal system as well as possible
90
when interpretation is concerned, there exists a certain tension between
"what is presented by the existing "positivist" material and what is the best way to interpret such material from a moral point of view."
91
From the view of Dworkin, a judge is like an author in writing a novel
new author is bound by what another author has written in a previous chapter, but the new author will subsequently attempt to continue the novel in the best possible way
92
A judge should view his or her role in a chain in law,
He knows that other judges have decided cases that, although not exactly like his case, deal with related problems; he must think of their decisions as part of a long story he must interpret and then continue, according to his own judgement of how to make the developing story as good as it can be."
93
in interpreting certain legal text, a judge is not completely free.
a judge is required to interpret with the purpose of establishing coherence based on the integrity of existing law.
94
decision making by the judge will depend not
on his beliefs about which of these principles is superior as a matter of abstract justice but also about which should be followed, **as a matter of political fairness,** in a community whose members have the moral convictions his fellow citizens have
95
Dworkin's theory is an account of
judicial reasoning
96
Hart's view is that for a system of rules to consitute a valid legal system
the system of rules does not need to satisfy any moral criteria.
this system of rules merely need to consist of primary and secondary rules
97
What distinction does Dworkin make
Dworkin makes a distintion between rules, principles and policies
98
Fuller's account of law. Fuller, the procedural natural lawyer, held that
held that there are eight moral standards principles of legality that a system must meet for it to be a genuine legal system
99
Dwokin's view of Hart's account of law
Hart's account is incomplete.
## Footnote
A complete account of judicial reasoning will include **principles**
100
Principle for Dworkin is
standard other than rule used by lawyers and judges
101
Dworkin identifies 2 types of principles
Policy and principle in a narrow sense
102
Dworkin identifies 2 types of principles
policy
standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community (**though some goals are negative, in that they stipulate that some present feature is to be protected from adverse change)**
e.g. the standard that automobile accidents are to be decreased.
103
Dworkin identifies 2 types of principles
principle (narrow sense)
standard that is to be observed ... because it is a requirement of justice or fairness or some other dimension of morality. E.g., automobile manufacturers must be held to higher standards than other manufacturers because of the nature of their product.
104
Where do principles (in the broad sense) come from?
They are grounded in (exemplified, quoted or somehow supported by) past official acts (for example, the text of statutes, judicial decisions, or constitutions).
Judges will decide cases based on the principles cited in, or implicit in, past official actions.
105
Where do principles (in the broad sense) NOT come from?
Judges do not simply rely on whatever principles they themselves might think are required by morality.
106
To illustrate the distinction between rules and principles, Dworkin refers to Riggs v. Palmer (1889),
what court heard this
New York Court of Appeals
107
To illustrate the distinction between rules and principles, Dworkin refers to Riggs v. Palmer (1889)
facts
* Elmer Palmer knew that his grandfather was leaving him a large sum of money in his will, but he began to fear that his grandfather would change the will and leave him nothing.
� Before that could happen, Elmer killed his grandfather, by poisoning him.
� Of course, there were criminal laws governing the killing itself, but there were no laws preventing Elmer from keeping the inheritance.
� Two of Elmer�s aunts sued in civil court to prevent Elmer from getting the inheritance.
108
To illustrate the distinction between rules and principles, Dworkin refers to Riggs v. Palmer (1889)
Held:
* The majority opinion, written by Judge Robert Earl, held that Elmer should be denied his inheritance.
* Earl relied on the idea that: No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime
109
To illustrate the distinction between rules and principles, Dworkin refers to Riggs v. Palmer (1889)
Majority based their decision on the pricniple that one should not be able to profit from his own wrong.
What did Dworkin say?
This idea is a principle in Dworkin's narrow sense: a standard that a judge observes because it is a requirement of justice (rather than of positive law).
110
Gaps in the law
According to Dworkin, Hart's view (that law consists only of rules) implies that
there is not enough law to cover all cases, creating gaps in the law
111
Gaps in the law
For Hart, when a judge encounters a case that is not covered by an existing rule
judges have a discretion as to how to decide the case i.e. creating new law
Hart's legal positivism implies that judges sometimes act as deputy legislators, filling in gaps by enacting the law that they suppose the legislature would enact if seized of the problem.
112
Gaps in the law
But if Dworkin's principles are part of the law,
there is more law, fewer gaps b/c judges can rely on principles
113
How are rules all or nothing
Either the facts of a given case fall under a given rule (the rule definitely applies) or they do not (the rule definitely does not apply).
114
Legal principles are not all-or-nothing. Rather, they have
weight. principles come in varying degrees of importance. This makes it possible to compare one against the other and ask which is the more important when they come into conflict and one must take precedence the other:
115
The practice of law involves what Dworkin calls
constructive interpretation.
116
In jurisprudence, the object to be constructively interpreted is
**Positive law**:
� **case law** (past judicial decisions and the reasoning given to support them)
� **statutes** passed by legislatures
� the texts of **constitutions**.
Dworkin calls this the pre-interpretive data.
117
pre-interpretive data
data to be explained, to be accommodated in a coherent picture.
118
A judge must sometimes choose between
competing interpretations, each of which fits the data to some degree
119
A judge must sometimes choose between competing interpretations, each of which fits the data to some degree. In choosing, he or she must consider
both
� **how well each interpretation fits** (both might fit, but one might fit better than the other, i.e., might be more consistent with all the data);
� **which one has the greater moral value.**
120
In constructing such an interpretation, judges should try to maintain
integrity
121
In constructing such an interpretation, judges should try to maintain integrity
Dworkin describes integrity as
should decide cases in a way which makes the law more coherent, preferring interpretations which make the law more like the product of a single moral vision
122
Dworkin, on the other hand, sees judges in these hard cases as
digging deeper into the law to find the strongest moral and political principles that could justify an authoritative decision.
[They do] not find the right answer in some transcendent reality, but internally, within the integrity of legal practice
123
Dworkin's view is that
[a]mong the theories of what the law requires that adequately fit the relevant legal materials, the judge would then choose that theory which was morally best, *_which made the law the best it could be._*
124
Whats more, Dworkin's view implies that
or nearly all legal questions, there [is] a unique right answer, a best interpretation.
125
What's more, Dworkin's view implies that for nearly all legal questions, there [is] a unique right answer, a best interpretation.
Dworkin's Herculescharacter is
a lawyer of superhuman skill, learning, patience and acumen who, in nearly all cases, be able to identify the one best decision.
126
Dworkin invokes Hercules why?
to illustrate his claim that there is such a single correct decision in almost every case.
127
Dworkin is a natural-law theorist: he holds that
**moral evaluation is integral to the description and understanding of law**, including to the description of **judicial decision-making** and to the way in which **judges themselves come to understand the** law
128
A standard objection to Dworkin's constructivism is as follows
Judges should not look at the law through 'rose-colored glasses,' trying to see it in the best possible way, or as the best possible system. Rather, they should try their best to see law as it actually is.
129
**A standard objection** to Dworkin's constructivism is as follows: Judges should not look at the law through 'rose-colored glasses,' trying to see it in the best possible way, or as the best possible system. Rather, they should try their best to see law **as it actually is**.
Dworkin's response is to say something like this:
describing law as it is necessarily involves an interpretative process, which in turn requires determining what is the best interpretation of past official actions.
Law as it is, law as objective or non-controversial, is only the collection of past official decisions by judges and legislators (which Dworkin refers to as the 'pre-interpretive data,' that which is subject to the process of constructive interpretation)
130
According to Dworkin, to work out what the correct legal answer is based on the best available legal principle, judge needs to go through an interpreative process which involves 2 basic tasks:
1. fits with all the past case law, what legislature decided in past, the constitution and any constitutional norm
2. show all institutional histroy in its best light, which requires judge to engage in moral reasoning.
131
Judge says that if judge does his task correctly
there is one correct answer.
132
Difference and similarities between Fuller and Dworkin
Like Fuller, Dworkin rejects Aquinas while still insisting there is a necessary connection between law and morality.
Unlike Fuller, Dworkin focuses not on legal systems as a whole but on judges’ activity of interpreting laws
133
how does Dworkin challenge legal positivism
Dworkin focuses on the judge and uses judicial decisions in actual legal systems as his way of challenging the legal positivist picture of law as demarcated by a set of primary rules identified by secondary rules of recognition
134
Dworkin vs. Fuller: the source of prima-facie obligation is not just in principles of legality; these are not enough
prima-facie obligation comes not just from these but from the ―integrity‖ of law. L
Law = rules plus principles and this means it more than the mere exercise of power. This integrity gives it a claim on our obedience.
135
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 dimension
Which set of principles better ―fits the existing legal system and history of precedent?
Relevant here are:
(a) logical consistency
(b) the fit between principles and past decisions (a judge ―must continue the past and not invent a better past).
136
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:
Substantive dimension
Which principles are morally speaking the best ones, that is, closer to the moral truth?
137
For Dworkin what does the law consist of
rules but also of principles. Rules are applicable in black and white, whereas principles have the extra dimension of weight.
138
what type of discretion do judges have in hard cases
discretion in the weak sense that they are called upon to exercise judgment—they are not supplied with any cut and dried decision procedure
they never have discretion in the strong sense which would exclude a duty to decide the case one way rather than the other.
139
According to Dworkin, does judge run out of law in hard cases?
No, judges don't reach a stage where they run out of law and need to make new law to deal with the new problem.
Judges never need to act, even surreptitiously, as legislators
140
How does Dworkin reject positivist demarcation between law and morality with the use of Hercules?
task assigned to Hercules is to find the theory that best explains and justifies the settled law, and to use this theory to decide otherwise unsettled issues. He construes the phrase ―best explains and justifies‖ as including a moral dimension.
141
How does Dworkin reject positivist demarcation between law and morality with the use of Hercules?
task assigned to Hercules is to find the theory that best explains and justifies the settled law, and to use this theory to decide otherwise unsettled issues. He construes the phrase ―best explains and justifies‖ as including a moral dimension.
142
What happens when there is a clear case,
pretty obvious what is going to fit institutional history and what best justifies outcome.
143
What about Hard cases?
his approach is more useful in hard cases
