STUDY UNIT 2

Question 1

OJECTIVE THEORIES:

Answer 1

1. Hart’s Penumbra Theory
2. Lon Fuller’s Belief
3. Dworkin’s Theory of Constructive Interpretation

Question 2

1. HART’S PENUMBRA THEORY:

Answer 2

Hart believes that legal problems do not come to us in its neatest form, ‘folded and creased”

Question 3

Where something is:

Answer 3

where something is not a standard problem, he calls this ‘a problem of the penumbra.

Question 4

Hart does not believe:

Answer 4

Hart does not believe that language is completely transparent. He agrees that sometimes certain words will be unclear.

Question 5

WHAT IS PENUMBRA?

Answer 5

Penumbra refers to a body of partial light that exists between the full light and the complete shadow. It is an area that is on the infringes, not entirely easy to make out, and thus indetermined and not clear.

Question 6

Hart admits that:

Answer 6

Hart admits that, in the penumbra, we need some light about the purpose of the statute to properly litigate.

Question 7

2. LON FULLER’S BELIEF:

Answer 7

any sensible interpretation includes reference to the purpose of the legal provision in question.

Question 8

WIDER TEXTUAL SETTING:

Answer 8

it is a process that takes place through the construction of language within a wider textual setting

Question 9

LANGUAGE ALONE:

Answer 9

language alone is not sufficient and therefore judges must determine the purpose in order to provide an adequate interpretation.

Question 10

PURPOSE REQUIRES:

Answer 10

Purpose requires a notion of moral reasoning, meaning that law and morality are inevitably connected.

Question 11

However, A PURPOSIVE:

Answer 11

However, a purposive approach to adjudication is not morally neutral.

Question 12

HART CONTENDED:

Answer 12

Hart contended that judges must make decisions in hard cases by using purpose and policy reasons.

Question 13

Dworkin formulates three fundamental problems with Hart’s account of law:

Answer 13

a. when judges make new laws in hard cases the law is applied retroactively; the losing party will be liable even though they had no idea that their conduct is legally unacceptable.
b. laws are meant to guide conduct. therefore, it is impossible to regulate conduct if retroactive laws are in place.
c. Judges are not elected and therefore have no authority to adjudicate in the way that laws are created.

Question 14

3. DWORKIN’S THEORY OF CONSTRUCTUIVE INTERPRETATION:

Answer 14

also known as the theory of integrity.
includes: Dimension of fit and Dimension of value
-Judges must at least meet the criteria of fit, before the criteria of value can be considered.