Legal Reasoning 2

Ronald Dworkin

Dworkins response to Hart & the Sceptics

Rules, principles and justifications
Judges discretion: the distinction between easy and hard cases: Hart (peripheral); Dworkin (central) Problems with the discretion in the model of rules:

Rules have an either/or quality: they can run out strong discretion

Three problems with Harts account 1. The nature of discretion

2. Concern about judicial law-making and democracy

3. Retrospectivity For Dworkin: judges have only weak discretion

 legal practice is argumentative Contains not only rules but principles

An example: Riggs v Palmer

Policy v. principle
Arguments of policy justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole Arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right I propose the thesis that judicial decisions in civil cases, even in hard cases, characteristically are and should be generated by principles not policy. Principles have weight, not either/or, quality

 Law insists that force not be used or withheld, no matter how useful that would be to the ends in view, no matter how beneficial or noble those ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified Taking rights seriously Rights as trumps over utility

 Legal practice is a matter of principle, an embodiment of political morality Foundational principle of political morality: people should be treated with equal concern and respect Since law licenses coercion, *w]e want our officials to treat us as tied together in an association of principle.

 Law as an interpretive practice Reading and developing a practice constructively means seeing it in its best light and making it the best it can be Ascertaining the purpose of the practice Laws attitude is constructive: it aims, in the interpretive spirit, to lay principle over practice to show the best route to a better future, keeping the right faith with the past.

The interpreters point of view

3 stages of interpretation: 1. Pre-interpretive: identify basic materials: this provides the threshold test about fit 2. Interpretive: interpreter settles on some general justification for the main elements of the practice identified in (1); Why is a practice of this general shape worth pursuing) 3. Post-interpretive: reforms the understanding of what the practice really requires so as to serve better the justification accepted in (2) The chain novel

 Hard cases arise, for any judge, when his threshold test does not discriminate between two or more interpretations of some statute or line of cases. There may be a (productive) tension between fit and justification

Then he must choose between eligible interpretations by asking which shows the communitys structure of institutions and decisions its public standards as a whole in a better light from the standpoint of political morality. His own moral and political convictions are now directly engaged.
3 approaches and an example: protected (free) speech

3 models
1. pragmatism: judgments and materials, including principles, are deployed instrumentally, to pursue whatever seems best for the future Dworkin: this model lacks a commitment to working out common schemes of principle (already) embodied in the law

 2. conventionalism: law is the outcome of compromise, conventions of political bargaining: the authority of (past) convention Dworkin: this would allow strong discretion, it lacks a more fundamental commitment to principles within law

3. Integrity Integrity means consistency in principle with past decisions and requires retrieving that principle in precedent as the justification that best fits the institutional record. *Compare: a person of integrity+ It demands that the public standards of the community be both made and seen, so far as this is possible, to express a single, coherent scheme of justice and fairness in the right relation. Integrity demands that the state act on a single, coherent set of principles even when its citizens are divided about what the right principles of justice and fairness really are.

continued
Judges who accept the interpretive ideal of integrity decide hard cases by trying to find, in some coherent set of principles about peoples rights and duties, the best constructive interpretation of the political structure and legal doctrine of their community. They try to make that complex structure and record the best these can be It will include convictions about both fit and justification.

Law and community

Model of community as a model of principle Members accept that they are governed by common principles, not just by rules hammered out in political compromises Its collective decisions are matters of obligation and not bare power It has moral legitimacy in the name of fraternity

Some problems: Critical Legal Studies (CLS)

Is this model of community plausible? (cf a conflict model) Is this ideology masquerading as principle? Does this account take sufficient notice of different types of power? R Unger: Rule of Law (a) that power can be constrained by rules, (b) the most significant forms of power are exercised by govt: both false) What of counter-principles in the law? Do the criticisms of the rule- and fact-sceptics still have force?

Reading
Bix, Jurisprudence, 91-103(Dworkin), 131-134 (rights); 231-235 (CLS). R Dworkin, Laws Empire, chs 6&7 (esp: 215-224; 254-258; 271-275). 2 videos: http://video.google.com/videoplay?docid=-8182465071522193147# http://www.youtube.com/watch?v=742JyiqLhuk (start at: 13.10) Veitch et al, Jurisprudence: Themes and Concepts, 111-116 (Dworkin); 116121 (critique) R Dworkin, Taking Rights Seriously. (excerpt here: http://www.nybooks.com/articles/10713) R Dworkin Justice in Robes Lloyds Jurisprudence 8th ed., (Dworkin) 717-734; CLS (1209-1225) Penner et al Jurisprudence: Commentary and Materials, 287-290 (Dworkin); 310-323 (critique) R Unger, Law in Modern Society, 166-181. N MacCormick, Reconstruction after deconstruction: A response to CLS (1990) 10 Oxford Journal of Legal Studies 539.