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Flashcards in Dworkin Deck (19):

Attack on Hart

Cannot be a model of rules as law consists of 'non-rule standards' (moral/political policies/principles) drawn on in hard cases.


Taking Rights Seriously

Hart's analysis means rights can be sacrifices for community interests and other conceptions of good (in their strong discretion).

If rights are to be treated with respect, they must have proper recognition as part of the law: leads D to deny separation between law and morals, reject proposition that judges do/should make law.


Conventionalism (incl. semantic sting of positivism)

(1) Law is a function of social convention which it then designates as legal convention (law exists in no more than respecting certain conventions).
(2) It conceives law as incomplete, there are gaps in the law filled by judicial predilections.


Attacks on Conventionalism

The semantic theories of positivism differ from full blown conventionalism: the former argues description of law as convention is recognised and applied by virtue of the very vocabulary of law, the latter adopts an interpretive concept.

Semantic: linguistic and logical
Conventionalists are willing to concede that we need to interpret behaviour of lawyers/judges to determine what they should do.

Importance lies in the failure of LP/Conv to provide either a convincing account of the process of law making or a sufficiently strong defence of individual rights.


McLoughlin v O'Brian

According to D: a Conv would say that there is no law and that the judge must therefore exercise a discretion and make new law which is then applied retrospectively.

For D: propositions of law are true id the follow from principles of justice, fairness and procedural due process that provide the best constructive interpretation of the community's legal practice. Would legal practice be seen in a better light if V could recover in this situation?

There is no law beyond the law, and no gaps in the law. Law and morals are inextricably intertwined.


Principles and Policies

Rules are applicable in all or nothing fashion, principles and policies have 'the dimension of weight or importance' - provides a reason but not a conclusive reason.

e.g. Riggs v Palmer - murderer receiving under V will - no man should profit from his own wrong.

D rejects a master rule by which these gain admission to the legal system, moreover 'the list would be obsolete before we reached the middle'.

Principle: Rights- a standard of justice, fairness or some other dimension of morality.
Policy: Goals to be reached , generally an improvement in some economic, political or social feature of the community.

Rights have a 'threshold weight' against community goals - 'rights as trumps'.



A judge of 'superhuman skill, learning, patience and acumen' expected to construct a scheme of all principles and determine a legal construction that best fits with the institutional history of the community.

Hercules J is a useful idea setting a standard against which real judges might measure their performance.

Hard cases: Those which deal with a fundamental proposition of law, the outcome of which lawyers disagree.

Dworkin provides the paradigm in hard cases/Hercules to focus our attention on the most graphic form of his interpretive concept


One Right Answer

Dworkin's model of adjudication leads to one right answer - that which best fits. e.g. Tal's smile, and lawyers who never say 'this is neither valid nor invalid'.


The Rights Thesis

D grounds theory on version of liberalism springing from proposition that 'govt must treat people as equals' (leads D to argue criminal law should not enforce private morality; wealth is not a value; reverse discrimination is not immoral)

Positivism, pragmatism and conventionalism do not provide adequate defence of rights, only law as integrity does so.


Law as literature

A judge must think of himself not (as conv would have it) as giving voice to his own moral or political convictions, or even those he thinks the electorate or legislature would approve of, but 'as an author in the chain of common law'.

e.g. Courtesy: over time begins to serve a value independent of their mere existence and so they develop meaning, the strict rules of which are flexible and must be adapted over time to meet changing needs.
It is not about linguistic grounds rules that everyone must follow to make sense (the semantic sting)

e.g. Nazi law: Semantically relates to the meaning of law at the preinterpretive stage - at the interpretive stage it becomes about the substance of the law lacking features crucial to flourishing legal systems whose rules do justify coercion.


Law as integrity

Requires Hercules J to ask whether his interpretation of the law could form part of a coherent theory justifying the whole legal system.

No definition of integrity: but describes significant features - accepts law and legal rights wholeheartedly and supposes law's constraints benefit society by securing a kind of equality among citizens that makes their community more genuine and improves its moral justification for exercising the political power it does.


The Assault on Dworkin: Attack on Hart

Rules may incorporate principles- MacCormick: principles interact with rules, underpinning and qualifying them, or Sartorius: loosening up of RoR.

Judges do have strong discretion- Hoffmaster: do have strong discretion between decision X and decision Y. Hart: Sometimes do, sometimes don't.

Judges do rely on policy- judges do not decide cases on grounds of principle and not policy - judges give weight to the interests of 3P in hard cases.


The Assault on Dworkin: The Rights Thesis

D's argument that utilitarianism does not take rights seriously is denied by Hart: does not follow that if X's liberty is curtailed this shows he is not being treated as an equal.


The Assault on Dworkin: 'Hard case' is inadequately defined

Fails to distinguish sufficiently from an easy case - strong version of this argument, Hutchinson: commits Dworkin to the view that all cases are hard.


The Assault on Dworkin: Hercules is objectionable

He is a politician: substituting his own political judgement
He is a fraud: Thinks he has discovered the answer but is fraudulently offering his judgement as the judgement of the law
He is a tyrant: Arrogantly presumes his conception is best although cannot prove it.
He is a myth.

All deflected by D in LE


The Assault on Dworkin: There is no right answer

D argues:
(1) The surface linguistic behaviour of lawyers is misleading because it suggests there is no logical space between e.g. a valid and invalid contract - it does not contemplate both could be false: could be an inchoate contract, thus the question may not have a right answer.

(2) The other argument denies that validity or invalidity will always apply, because neither may.


The Assault on Dworkin: Law is not like literature

Unconvincingly attacked by Woozley...


Dworkinian Theory in Unjust Regimes

e,g. South Africa where right answer on the basis of institutional fit would be destructive of rights? D suggests in a wicked society Hercules may have no choice but to lie - Harris: Hercules has to go outside the legal materials and look at community morality



Finnis: D's failure to offer an explanation of the source of the authority of posited rules is a failure to do the relevant parts of political philosophy in which his jurisprudence is embedded.

Barry: Lifecycle of Dworkinian controversy - jettisons cargo in defence to save the rest until it no longer says anything controversial - because it is no longer distinctive.

Harris: Law decided by layman terms of Parliament not about arguments of legislative history, policy or doctrine,