Realists had the idea that law is a set of rules separate from moral views – Dworkin disagreed. Positivists separated law from morals – Dworkin disagrees. Part of Dworkin’s reaction was to argue morality was a part of the law guiding judicial decision making.
Dworkin said we know what our right is and understand it by contrast with consequentialism.
E.g. world youth day act restricting access etc – look at all the benefits from it = right to sponsor because produces more good consequences than bad ones and it was okay to restrict rights of others for that period because it maximised the benefits.
Dworkin says a right is that I am entitled to do something even if doing it won’t increase consequences. Most of us believe in some rights at all e.g. right to life (e.g. those dying of serious disease – in last 12 weeks of life they consume huge resources to keep life going – economic analysis = huge amount of spending that could use on younger ones – the utilitarian says you should kill the life earlier and use the finances to support younger life). Some will say even if those calculations are right you can’t do it because we all have right to life and you can’t violate that. Dworkin says the right trumps the calculation – don’t even do the calculation because you just can’t do the action = this is non-consequentialism. Another example is torture of terrorists to try to get info about planned attacks – some would say yes torture because world would be better off (conseq) and others that say no, fundamental that can’t torture (non-conseq).
Subjective view of moral claims is that they are expression of personal preferences (e.g. prefer red or white wine) – point of personal preferences is that if my preference is different to yours I haven’t contradicted you – we both have preference – it’s individual. Some speak of moral claims as if they have that quality. Is abortion right or wrong. Some will try to defuse issue because each person has to make own decision about what’s right for them. It doesn’t make sense if you apply it to other issues e.g. torturing children for fun – if one said that was ok, it would be very strange for one to say well I don’t approve but understand you do. Preference is being spoken of here as this is the view that everyone must taken. Moral claims have objective quality. Someone may say its moral right for terrorist not to be tortured is something I believe – that’s correct statement of what your moral belief was – if one said I going to do the torture
Objective claim – comment re what the rule is without saying if there’s truth behind it. e.g. rules of soccer – objective claim, not saying what I believe, it’s what they are.
A lot may think moral claims aren’t only objective, that they have some truth as well. E.g. the torture example – not only what I believe, but put truth behind it. some moralists believe there is moral truth then there are the sceptics. Mackie says moral truth is too weird, what could it be – science propositions are true, proven – but nothing re moral truths, we make up moral truths was Mackie’s argument.
Dworkin is non-conseq and objectivist and seems to be somewhat believer in moral truth but can be a fence-sitter on the moral truth issue.
Dworkin started writing at the end of the 1960’s – his first article came out in 67 – his collection ‘taking rights seriously’ contains what some say are the two early versions of his work – early version exercised function of principles – second version (book published in 86) coined phrase law as integrity.
Early version – idea that law is bunch of rules is a naïve view of law and makes it easy for realists to establish legal indeterminacy. Easy to show vast number of ways of connecting principles together – he said it would be easy to show there’s no right answers – but said they overlooked fact law not just rules but also principles – moral principles – but not just any judge’s favourite moral principle – it’s the principles that had institutional support i.e. were reflected in past legal practice. He contrasted principles with policies – this matches with the conseq and non-conseq distinction. Policy is aimed at maximising outcomes – when govt engaged in conduct to solve a social problem or pass statute they are usually engaged in policy making – aim to minimise adverse consequences and maximise good consequences. Dworkin emphasises that policy require consideration of lots of data etc – policy implementation relies on large number of experts, large amount of info and often involves being open to submissions and representations from affected groups to reconcile conflicting interests in society. Not judge’s role to go through that process. Judges should stay away from policy (goal oriented) and its formulation and implementation isn’t something to which legal system is adapted. But moral principles reflect rights of individuals – not concerned with consequences or goals – this is what courts should be vindicated on.
Dworkin argued that principles have weight – a rule is like switch, it’s on or off – rule prohibiting parking at certain times is straightforward – do you or don’t you fringe the rule. But some can’t stand alone – there are principles which can apply in interpreting the rule. E.g. principal can’t profit from own wrong – principle overrides re the general rules (law) re distribution of estate against the person who killed the deceased. Say if ambiguity in rules the principles dictate which way to get to the outcome.
These first efforts don’t completely get rid of problems of legal indeterminacy – gets over some, but not all. In essay “hard cases” Dworkin tries to get over the indeterminacy problem – has to show or make sense of idea that there’s legal truth about a matter, some right answer. Need to show we can make sense of the right idea (positivists can’t). in this paper he uses example of superhuman judge who capable of storing all law cases in his head – asks self what gives highest level of consistency of all the past legal and judicial activity and make the most sense of it. that theory represents legal truth – what judges are trying to do are find their way towards that theory.
One point often made against idea there can be right answers to legal questions – if there was such thing of legal truth how can we have HC decisions split 4:3. Dworkin said fact we disagree over the truth doesn’t mean there isn’t truth. Said we will frequently see disagreement in the hard cases where it’s difficult to work out how to reconcile conflicting principles and issues governing correct legal answer.
Yerkey v Jones – 1939 case – husband wants to borrow lots of money from bank – bank agrees provided mortgage over home – jointly owned so said she has to execute mortgage and become guarantor of the loan – gave hubby docs to take to wife – he gets her execution without her knowing real facts – hubby defaults, wife tries to get out of it – bank says he not their agent etc therefore she stuck with it – court said they did have constructive notice because they gave the docs to him to get the doc signed – the decision was very specific – the rule only available for wife in this position (i.e. not to unmarried wife and not to husband).
With de-regulation of banking in the 80’s – practices slackened, people being lent money that shouldn’t have – 1985 case – European AsIan Bank Case – said compelled to say in 85 that being female and wife is sufficient to say they suffering a special disadvantage. Some suggested the rule should be abolished entirely but that would leave exposed those truly disadvantage.
So rule re-stated in the Garcia case – didn’t make it specific gender or married status – general rule that if bank entrusts execution of guarantee to the debtor and bank is on notice that debtor and guarantor had relationship of sort that foreseeable debtor might have unfair tactics to secure signature, then bank had constructive notice debtor might do that.
Realist’s response could be that HC made fresh rule, discarding the old Yerkey v Jones rule. Dworkin was down on judges making law – he saw that legislature makes law exercising legislative power – judges aren’t elected and their function not exercise of political power so if they make law they breach separation of power doctrine. Separation of power doctrine is there to purport important principle. Dworkin would say re Garcia – that by time it came to be decided, the law wasn’t just rule in yerkey v Jones, law of property etc but now contains a new principle, principle with institutional support because imbedded in legal practice etc – the principle of discrimination. When Yerkey v Jones decided woman suffered in terms of legal status whereas by 98 these entrenched practices were abolished and replaced with express law prohibiting it – so the law in 98 contained principle as part of it so that when HC decided Garcia, they not only confronted with the Yerkey v Jones rule plus the principle – they stated the law as it then was in fashion that reconciled the outdated rule with the principle of non-discrimination.
Dworkin uses number of other metaphors and analogies to make sense of area of law – analogy with statistics of best fit – looks at all cases re e.g. compensation for negligent harm and seeks to find formulation that captures most that can be captured from past cases, and in doing so he seeking “theory of law that has best fit with past cases”. Uses analogy of chain novel – new writer for every chapter – next chapter has to find best fit for all previous chapters – i.e. Ch11 writer can’t say I’d prefer the whole story went this way and write his chapter accordingly. The law is the moral voice of society – it’s the moral principles and rights that are to be exercise by our legal system, it would breach principle of fairness if legal system itself gave one answer one occasion and different answer on another occasion. Dworkin says the legal system as the rep of the state legal authority should speak with one voice and can only do that if its is internally consistent and coherent. He uses example of chess umpire to explain how rules should be read and understood – chess umpire arbitrating dispute in tournament that one player’s conduct puts the other player off. Umpire looks up rules and finds nothing specified about this type of conduct – its not the end of the matter – if e.g. rule says can’t engage in conduct that undermines the game – then have to ask what’s the basis of the game, is it of skill re understanding and commanding strategies – if yes, then not getting the result for person best fashioned in this way and would outlaw the conduct. Dworkin says similarly judges must look at the area of law and ask its fundamental principles – look at past cases and come up with theory for that area of law, will be part of coherent account of regulating conduct that we interested in. deciding the best possible theory will determine the answer and therefore can say there’s right answer for that particular type of case.
The theory there is right answer is important to Dworkin for another reason – if law is indeterminate and no right answer to cases, in one strange sense we don’t have any legal rights at all until court hears the case and hands down judgement. Dworkin – moral right and right for protection by law – that would be undermined and destroyed in law was indeterminate.
Must understand law isn’t just set of rules but combination of rules and principles. There are right answers to legal questions. Dworkin even altered our sense of what represented a hard case – the writer’s that D was criticising saw cases where rules were ambiguous (e.g. common law decision but not clear if applies to this particular conduct etc) said cases where no ambiguity but conflict between classic statement of rule and . . .
Yerkey v Jones – clear rule – not uncertain etc – problem was rule clashed with intuition re justice and fairness – but intuition could be confirmed by adopting principle of non-discrimination
Lawyers and legal commentators discuss the law as if it is the truth i.e. don’t say there’s no law on this because it hasn’t been to court yet. In saying there is legal truth you can say that the decision of the court was wrong (i.e. that there was a legal truth, they got it wrong in this instance but hopefully will get it right next time) – but their decision stands and is considered the law at the time.
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