Mod 9 – Dworkin’s interpretive theory

Question 1

What are the three stages of legal argument according to Dworkin?

Answer 1

Pre-interpretive, interpretive, and post-interpretive stages.

Question 2

Who is Judge Hercules in Dworkin’s theory?

Answer 2

The ideal judge who embodies the principles of Dworkin’s interpretive theory.

Question 3

What distinguishes arguments of principle from arguments of policy?

Answer 3

Arguments of principle are based on moral or ethical considerations, while arguments of policy focus on practical outcomes.

Question 4

What is the difference between arguments of fit and arguments of substance?

Answer 4

Arguments of fit focus on how well a legal decision aligns with existing law, while arguments of substance concern the underlying moral or ethical implications.

Question 5

What is the significance of the case McLoughlin v O’Brian?

Answer 5

It is often cited for various interpretations regarding legal principles and emotional distress claims.

Question 6

Define integrity as a virtue of law according to Dworkin.

Answer 6

Integrity involves consistency and coherence in legal reasoning and arguments.

Question 7

How does Dworkin conceptualize law?

Answer 7

As primarily about justifying legal arguments.

Question 8

What is Dworkin’s critique of the ‘social sources’ theory of law?

Answer 8

He argues that it fails to account for the moral dimensions of legal interpretation.

Question 9

What is the nature of the one right answer thesis?

Answer 9

It asserts that there is always a single correct answer to legal questions, which is purely defensive in nature.

Question 10

True or False: Dworkin believes that simplicity is the only criterion for a successful legal theory.

Answer 10

False.

Question 11

What does Hart argue about the relationship between law and morality?

Answer 11

He argues that while morality often influences law, it does not necessarily do so.

Question 12

What is Dworkin’s methodology of the ‘interpretive concept’?

Answer 12

It involves making the best of something that it can be.

Question 13

In Dworkin’s theory, what are the three analytical attitudes towards social practices?

Answer 13

Pre-interpretive, interpretive, and post-interpretive.

Question 14

Fill in the blank: Dworkin prefers the spelling ‘_______’ rather than ‘interpretative’.

Answer 14

interpretive.

Question 15

What is the relationship between courtesy and interpretation in Dworkin’s theory?

Answer 15

Interpretation involves looking for the point of social practices like courtesy.

Question 16

What happens in the post-interpretive phase of interpretation?

Answer 16

Interpretation folds back into itself, potentially changing the original rule.

Question 17

What is the core meaning of a legal rule according to Hart?

Answer 17

There must be a settled meaning alongside a penumbra of debatable cases.

Question 18

What does Dworkin criticize about conversational interpretation?

Answer 18

He believes it is inadequate for legal interpretation.

Question 19

True or False: Hart agrees with the American realists that all judicial decisions are morally based.

Answer 19

False.

Question 20

What is the key insight of the realist school that Hart acknowledges?

Answer 20

The intersection of law and morality in hard cases.

Question 21

What does Dworkin mean by ‘constructive’ or ‘artistic’ interpretation?

Answer 21

It involves interpreting legal practices as creative works that have meaning beyond their literal text.

Question 22

What does Dworkin mean by ‘getting under the skin’ of a rule?

Answer 22

Understanding the deeper point of a rule beyond its mere description

This involves determining the principles of interpretation associated with the rule.

Question 23

What is ‘internal scepticism’ according to Dworkin?

Answer 23

The argument that respect, properly understood, could be inconsistent with certain practices like ‘hat-doffing’

This concept challenges the validity of certain rules based on their interpretation.

Question 24

What is Dworkin’s view on the role of legal theorists?

Answer 24

To interpret human practices and make sense of them by identifying their points

This interpretation is termed ‘constructive’ or ‘artistic’.

Question 25

Who is Judge Hercules in Dworkin's theory?

Answer 25

An ideal judge used to measure legal arguments and assess their quality ## Footnote Hercules serves as a model for correct legal argumentation.

Question 26

What distinguishes arguments of principle from arguments of policy according to Dworkin?

Answer 26

Arguments of principle deal with individual rights, while arguments of policy focus on community goals ## Footnote This distinction is crucial for judicial decision-making.

Question 27

What does Dworkin mean by 'fit' in legal arguments?

Answer 27

'Fit' refers to consistency with settled law in statutes and past cases ## Footnote It contrasts with substantive arguments that address political morality.

Question 28

Fill in the blank: Dworkin believes legal arguments in hard cases often develop from a tension between ______ and ______.

Answer 28

fit; substance

Question 29

What is a 'concept' as defined by Dworkin?

Answer 29

A description that can be understood without controversy ## Footnote It represents uncontroversial ideas in interpretations.

Question 30

What is a 'conception' according to Dworkin?

Answer 30

An interpretation that identifies and engages with the controversy surrounding a concept ## Footnote Conceptions reflect the interpreter's judgment.

Question 31

What is Dworkin's stance on the relationship between law and morals?

Answer 31

It is interpretive rather than semantic ## Footnote Law connects past political decisions to present coercion.

Question 32

True or False: Dworkin argues that the ideal judge, Hercules, must exist in reality.

Answer 32

False ## Footnote Hercules is a hypothetical model to illustrate ideal legal reasoning.

Question 33

What do Dworkin's arguments regarding policies relate to?

Answer 33

The realist tradition in the American common law system ## Footnote This tradition influences how judges reason in legal contexts.

Question 34

What is the significance of the case McLoughlin v O'Brian in Dworkin's analysis?

Answer 34

It illustrates how substantive arguments must fit existing case law ## Footnote Dworkin uses this case to demonstrate the interplay between fit and substance.

Question 35

Fill in the blank: Dworkin argues that judicial decisions should ideally not assume the role of the ______.

Answer 35

legislator

Question 36

What challenges does Dworkin identify regarding interpretation?

Answer 36

Scepticism about the existence of right answers in legal matters ## Footnote He argues that interpretations are often subjective and influenced by individual opinions.

Question 37

What are the three rival conceptions of law Dworkin discusses?

Answer 37

* Conventionalism * Pragmatism * Integrity ## Footnote These conceptions address different aspects of law and its relationship with moral principles.

Question 38

What is the primary relationship between law and morals according to Dworkin?

Answer 38

Interpretive, not semantic. ## Footnote Dworkin argues that law aims to establish a justifying connection between past political decisions and present coercion.

Question 39

How does Dworkin interpret Nazi law?

Answer 39

As law, but not in its fully developed sense, which includes a moral content. ## Footnote Dworkin suggests that interpretations of law are cultural and can vary in moral significance.

Question 40

What is Dworkin's view on the nature of law?

Answer 40

Fundamentally argumentative, defined by attitude, not just rules or officials. ## Footnote He emphasizes that law involves arguments that shape its application.

Question 41

What does Dworkin dismiss as inadequate frameworks for understanding law?

Answer 41

* Pragmatism * Conventionalism * Positivism ## Footnote Dworkin believes these frameworks do not adequately account for rights or community.

Question 42

What is the 'one right answer' thesis?

Answer 42

The belief that there are right answers to legal and moral questions, even if they cannot be proven. ## Footnote Dworkin suggests that denying this thesis leads to self-contradiction.

Question 43

True or False: Dworkin believes moral judgments are unnecessary to identify law.

Answer 43

False. ## Footnote Dworkin criticizes legal positivism for neglecting the role of moral judgments in understanding law.

Question 44

What distinguishes the grounds of law from the force of law in Dworkin's theory?

Answer 44

Grounds are interpretive, while force relates to the moral authority of law. ## Footnote Dworkin believes that understanding the moral implications of law is essential.

Question 45

What does Dworkin argue about evil legal systems?

Answer 45

They can still be considered law but lack moral justification. ## Footnote Dworkin asserts that we must recognize the existence of law even in immoral systems.

Question 46

Fill in the blank: Dworkin's critique of Hart's Postscript focuses on Hart's claim that his account is ______.

Answer 46

[morally neutral] ## Footnote Dworkin argues that this view fails to recognize the necessity of moral judgments in legal theory.

Question 47

What is 'soft positivism' in relation to Dworkin's critique?

Answer 47

A view that incorporates moral standards into the identification of law but criticized by Dworkin as vacuous. ## Footnote Dworkin argues that it collapses into his concept of integrity.

Question 48

What is the significance of integrity in Dworkin's legal philosophy?

Answer 48

It accounts for rights, unites the community, and allows a rich account of legal reasoning. ## Footnote Dworkin believes integrity is essential to a just legal system.

Question 49

How does Dworkin respond to the claim that there are no right answers in controversial legal questions?

Answer 49

He argues that denying right answers contradicts the way people, especially lawyers, argue and assert claims. ## Footnote Dworkin emphasizes that the belief in right answers is inherent in legal practice.

Question 50

What does Dworkin suggest about the role of lawyers in relation to moral claims?

Answer 50

Lawyers engage in debates about substantive moral claims of law. ## Footnote This indicates that legal practice is intertwined with moral reasoning.

Question 51

True or False: Dworkin believes that the moral content of law is irrelevant to its application.

Answer 51

False. ## Footnote He argues that moral content is essential to understanding and applying the law.

Question 52

What does Dworkin argue is a common characteristic of evil legal systems?

Answer 52

They share common characteristics with moral legal systems but lack moral justification for coercive acts. ## Footnote This highlights the complexity of defining law in moral terms.

Question 53

What does Dworkin mean by the term 'interpretive account of law'?

Answer 53

An understanding of law that considers the context and moral implications of legal practices. ## Footnote This approach allows for a deeper exploration of legal reasoning.

Question 54

What does Dworkin mean by 'integrity'?

Answer 54

Integrity refers to the virtue that judges should have in interpreting law, making sense of it as if it 'speaks with one voice'. ## Footnote Dworkin distinguishes between 'legislative integrity' and 'judicial integrity', where legislative integrity is about reconciling justice and fairness, while judicial integrity focuses on how judges interpret the law.

Question 55

What are the two senses of 'integrity' that Dworkin uses?

Answer 55

* Legislative integrity * Judicial integrity ## Footnote Legislative integrity reconciles justice in an ideal world with fairness in the real world. Judicial integrity is about judges interpreting law consistently.

Question 56

How does Dworkin view the relationship between integrity and justice?

Answer 56

Dworkin suggests that if integrity leads to a result contrary to justice, judges may have to 'lie' to achieve the right outcome. ## Footnote This raises concerns about whether judges should ever lie in their judgments.

Question 57

What is the concept of rights as 'trumps' according to Dworkin?

Answer 57

Rights are best conceived as 'trumps' that take precedence over collective goals or policies. ## Footnote This notion emphasizes the individual’s rights against majority interests.

Question 58

What does Dworkin argue about the existence of right answers to legal cases?

Answer 58

Dworkin believes there are right answers to legal cases, which can be demonstrated through interpretation and moral reasoning. ## Footnote This involves analyzing cases that may have been wrongly decided.

Question 59

What is the distinction between 'principle' and 'policy' in Dworkin's view?

Answer 59

Principles are moral standards that must be upheld, while policies are guidelines aimed at achieving particular outcomes. ## Footnote Dworkin's definitions are technical and differ from ordinary usage.

Question 60

Can cases be decided solely on the ground of policy?

Answer 60

No, according to Dworkin, cases should not be decided solely on policy grounds as moral principles must also be considered. ## Footnote This reflects Dworkin's belief in the importance of integrity and justice in legal decision-making.

Question 61

What is the role of Hercules in Dworkin's legal theory?

Answer 61

Hercules is the ideal judge who embodies the principles of integrity and justice in legal interpretation. ## Footnote Hercules represents the standard to which judges should aspire in their decision-making process.

Question 62

What does Dworkin criticize about Hart's definition of legal positivism?

Answer 62

Dworkin argues that Hart's soft positivism requires moral judgments in identifying the law, contradicting the essence of legal positivism. ## Footnote This critique highlights Dworkin's belief in the inseparability of law and morality.

Question 63

What is the principle of salience in Dworkin's view on international law?

Answer 63

The principle of salience states that if a significant number of states develop an agreed code of practice, others have a prima facie duty to subscribe to it. ## Footnote This principle addresses the lack of a uniform institutional structure in international law.

Question 64

What does Dworkin mean by the 'one right answer thesis'?

Answer 64

The 'one right answer thesis' posits that there is a correct legal answer to every case, determined through interpretation and moral reasoning. ## Footnote This thesis underlines Dworkin's interpretive approach to law.

Question 65

True or False: Dworkin believes that empirical evidence can identify the social sources of law.

Answer 65

False. ## Footnote Dworkin argues that social sources cannot be identified empirically as there is no common element for law.

Question 66

Fill in the blank: Dworkin's view on law emphasizes the importance of _______ in legal arguments.

Answer 66

[moral principles] ## Footnote Dworkin argues that legal arguments must be justified through moral reasoning.

Question 67

What conclusion does Perry argue regarding Dworkin's theory of law as integrity?

Answer 67

It undermines his theory of law as integrity. ## Footnote Perry critiques Dworkin's treatment of concepts in his article.

Question 68

What is the primary focus of Plunkett and Sundell's article on Dworkin's interpretivism?

Answer 68

They argue that Dworkin misunderstands the nature of disagreement in law. ## Footnote This is relevant for Section 9.1 'The idea of interpretation'.

Question 69

What does Schauer argue about the concept of law?

Answer 69

There is no 'fixed' concept of law, only a shifting variable chosen for its instrumental value. ## Footnote This argument is presented in his reply to Julie Dickson.

Question 70

What is the title of Waldron's work that discusses law and disagreement?

Answer 70

Law and disagreement. ## Footnote Published by Oxford University Press in 2001.

Question 71

In which publication does Waldron discuss the irrelevance of moral objectivity?

Answer 71

'The irrelevance of moral objectivity' in Natural law theory. ## Footnote Edited by R.P. George and published by Clarendon Press in 1992.

Question 72

Fill in the blank: Schauer argues that there is no _______ concept of law.

Answer 72

fixed ## Footnote He emphasizes that the concept of law is variable and context-dependent.

Question 73

True or False: Plunkett and Sundell's article supports Dworkin's account of legal disagreements.

Answer 73

False ## Footnote They take issue with Dworkin's account.

Question 74

What is the publication year of Perry's article referenced in the document?

Answer 74

1995 ## Footnote It is included in the book edited by Marmor.