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. 

Dworkin’s anti-positivist theory evolved in three phases:

1. Attacked the “model of rules” – (e.g. targeted Hart)

• Denounced the idea that law consists of system of rules whose legal status is settled by their pedigree and which authorise judges to exercise discretion in all cases they don’t regulate.

• Dworkin said this idea of model rules failed to consider non-rule standards – the principles and policies – and therefore gave a distorted view. 

• Dworkin believed principles were “especially important because of their role in judicial reasoning – principles were applied when the law is controversial
o He said this didn’t mean the judges were deciding what the law ought to be (he didn’t believe judges had that much discretional power) but believed they had two “weak” versions of power in that their decisions do settle the case, and that they had to apply their own judgement to reach that decision.

• He believed the principles applied were ‘legal’ because “of their substantive moral and political content”  means there is no line between law and morality (the positivists say there is such a line).

• Said a difference between rules and principles is that rules apply “all or nothing” but principles are given consideration and weight, but overridden if appropriate – but even if overridden it continues to survive as a principle.

• Hart did end up acknowledging a place for principles (in his 2nd edition of his book) but ‘insisted’ that their place in the legal system was tested on a master rule in order that the principles don’t threaten the distinction between law and morality.  He also said the difference between rules and principles is one of degree – a rule if valid has more conclusive force than a principle does – but either can be overridden.

• He did soften his stance in relation to principles differing from rules “re the weight/validity distinction to the view that political morality affirms the existence of rights (“arguments of principle”).

• He stood firm tho that judges don’t have the discretion to create laws when an issue isn’t regulated by some valid rule – that was his consistent attack on positivism.

2. There is a right answer for all legal questions  (Hard Cases essay)

• Introduced a ‘super-human judge’ called Hercules – who would look not only at the non-rule standard (including those based on morality) but would also construct a political theory that best justified the body of law and derive the right answer to any case before him (remember the positivists said there are some legal questions to which there just isn’t a right answer).

• He interprets the constitution, statutes and case law in light of the best politics

• In making his decision he moves between the existing legal materials and argument of political morality until he achieves the ‘appropriate fit’ which settles the question of whether the plaintiff has the right to win.

3. Constructive interpretation  (Law’s Empire)

• Not talking of the usual meaning of legal interpretation – Dworkin says in the case of various social practices and in art and literature, we bring to bear an interpretive attitude = take the obvious instances of the practice and advance a conception of it which makes it the best exemplar of the genre to which it belongs. 

• Said there are institutions and precepts which by common consent are part of law – then develop a theory showing them in their best light = the interpretive stage – then adopt the post-interpretive stage where you settle whatever concrete legal questions that may arise.

Dworkin believes that interpreting the law occurs at all stages – be it judge deciding a case, someone making general propositions of law e.g. text-writers, or at theory levels advancing claims re the nature of law – he states that at all levels political convictions come to the fore and therefore all legal theory must be political committed at all times, which in turn doesn’t leave room for “value-free theorising” such as that of Bentham, Hart etc.

He speaks of ‘justified coercion’ – if we’re trying to espouse our interpretation then we will represent all materials used in their best light (= ‘state coercion’) – “law insists that force not be used or withheld … except of licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified”.  The political convictions invoke a justifying coercion.

“The best theory of law is that which is superior to all others taking into account the two axes of all construction interpretation, namely, fit with data and political merit”.

Question: How is state coercion to be justified?  Dworkin gives three alternatives:

1. Conventionalism

This is where a community’s legal institutions include clear social convention in accordance with which rules are promulgated demarcating the circumstances in which force will or won’t be applied to individuals or groups = just need to consult the conventions and confidently rely on expectations not being disappointed.

Dworkin says this interpretation “both fails to fit the facts and is morally unacceptable”.  There are countless occasions when there’s no hard social-conventional facts to delimit the law’s scope and therefore conventionalists can’t supply a just ground for depriving people of liberty or property. 

2. Legal pragmatism

The pragmatist says state force can’t be justified at all therefore there can’t be law because law means justified coercion.  But, the pragmatist does pretend that particular provisions do result in legal rights on pragmatic grounds.

“Dworkin’s portrayal of legal pragmatism is his reworking of American legal realism.  His regards realist views as acceptable, although mistaken

3. law as integrity – Dworkin’s preferred ‘best legal theory’

‘This theory is that coercion is justified if the personified community exhibits the virtue of “integrity”’.  I.e. although we might disagree with the person’s opinion, we agree they have integrity if we can see that opinion was based on a well though out system of values applied consistently by him.

• Similarly, we attribute the whole of the law in force at any point of time to the personified community and ask what scheme of values represent it as treating citizens in a consistent fashion – what doesn’t fit this approach is considered to be a ‘mistake’. 

• Dworkin prefers this theory over legal pragmatisms because it explains why past political decisions now embodied in the law can be considered the proper ground for applying collective force. 

• He prefers it over conventionalism because it accounts for legal controversy.

This begs the question, what is best politics?  = treating all citizens with equal concern and respect. … “A community of principle … can claim the authority of a genuine associative community and can therefore claim moral legitimacy – that its collective decisions are matters of obligation and not bare power …”.

Dworkin’s theory has been attacked – on one part for the argument that social practices like law can’t just be described but must be interpreted in order to be understood, so why should it be supposed that interpreting it has to show it in its best light.

Stanley Fish condemns Dworkin on two counts:

1. Dworkin supposes interpretations must fit the legal or literary text, that statutory interpretation is constrained by the plain meaning of the words in which it was expressed (example given of chain novel – subsequent writers would be constrained to writing in way that’s consistent with the previous chapter writers.  Fish says there’s no such thing as a text ‘out there’ but that all meaning derives from the interpretive community.

2. Then Fish targets all who think theory is derived from no particular field of activity, that you can separate yourself from community beliefs and go to higher level arguments about those beliefs in pursuit of a program of enlightenment or reform – Fish says this isn’t correct – but rather believes that the best we can do is argue our view through “rhetorical proclamation of our own belief and … if we are lucky, subvert other people’s beliefs”. 

Harris argues against Fish’s view and believes that “’justice’ is not something about which there is a simple consensus among lawyers or anyone else, in the way that you can find common agreement about the type to which apiece of writing belongs”.

Dworkin says that legal positivist claims must amount to either assertions about words or conventionalism; that they may be denying the need for interpretative attitude because they say they know what law is just by attending to they way people use the word ‘law’ (D says this is ‘the semantic sting’) – Harris said this view of D is “bizarre” because no positivist actually rested their argument on the ground ‘law’ is used only in this sense. 

Hart

• Is a ‘soft positivist’ – doesn’t say you can always discover the law as plain matter of fact.

• Denies that positivist set out to show law in its best light but rather ‘they seek to provide general info re social institutions and explain how claims re validity, obligations, rights etc figure within those institutions’ – that this is needed to be understood as a precursor to evaluative theories.

• Says that law has several functions including providing standards of criticism and guides to action, but truths can be conveyed without committing self to whether these are valuable functions or to whether coercive measures which supplement those functions are just.

Dworkin’s “strongest card” he regularly used against positivism relates to controversy.  Don’t understand – come back to

Interpretation and adjudication

Super judge Hercules

• Uses law as integrity approach

• Accepts the truth of the rights thesis – that is, the community through coercive enactments respects the fundamental rights of all to equal concern and respect.

• Uses that thesis to interpret legal materials to the best he can in a way to yield general and concrete rights in a consistent and coherent manner.

• ‘Law as integrity’ is achieved at the interpretive stage and he then proceeds to the post-interpretive stage

For every case before him he takes into account both best fit and moral substantive dimension:

• Law as integrity requires that the moral substantive dimension [msd] always be applied – can’t go on just best fit test

• But as p197 gives example – this MSD can lead back to best fit    e.g. that a legal question could have three views – X. Y and Z – if X is superior to Y, and Y superior to Z for political morality, but X doesn’t fit the legal materials whilst Y and Z both fit the legal materials, he would conclude that the law is Y.

The hard cases were used by D to show the falsity of positivism and inadequacy of conventionalism.  The substantive dimension must be used.

The substantive dimension concerns issues of political morality – D splits it into 3 components – all three must be considered before reaching the ‘right’ answer:

1. Justice – the rights and policy-goals which the ideal legislator who is committed to equal concern and respect would lay down.

2. Fairness – when speaking re Hercules D means fairness to be “supported by majority opinion’.  He considers fairness especially important re statutory interpretation since you can look at the contemporary views of what the statute means over the inferences you should draw from its legislative history.

3. Procedural due process – the moral requirement to abide by previously announced legislative choices if people have relied on them.  On balance, justice might require an earlier precedent to be overruled, but if people have ‘understandably organised their affairs on its basis, it would be wrong to upset their expectations’ meaning the politically best outcome might be not to overrule – BUT finality shouldn’t stand in the way of overruling a “bad” precedent. 

If the three elements conflict Hercules weighs them against each other and selects the ‘optimal political solution which fits the legal materials’.

Dworkin focuses on distinction between arguments of principles and arguments of policy (and is criticised for this):

• Principles = propositions describing rights.  Arguments of principles justify a political decision by showing it respects or secures an individual or group right (e.g. anti-discrimination legislation is good because a minority has a right to equal respect and concern).

• Policy = propositions describing goals.  Arguments re policy justify a political decision by showing it advances or protects a collective goal of the community as a whole (e.g. subsidy for aircraft manufacturers is good because it will protect national defence).

According to the rights thesis, judicial reasoning takes place against background of assumption of rights – that regardless of what the legal question is, the judge has to decide whether plaintiff has concrete right to win which depends on judgement re moral and political background rights of the parties.

Dworkin insists that policy argument can only have same force as an argument on principle only where a judge mistakenly adopts a purely consequentialist conception of rights. 

“Dworkin’s basis for insisting we should understand reasoning in hard cases as reasoning about rights rather than reasoning about policy is one of political philosophy” – Harris says if we understand his basis like this, then it’s “much easier to justify the settlement of controversies by non-elected judges”.

Right answers and judicial legislation

Positivists (generally) assert available legal sources will sometimes yield no determinate solution to a legal question, therefore there’s no uniquely correct answer and the judge is obliged to exercise a law-creating discretion.  Raz calls this ‘gaps in the law’, Hart said it was a ‘penumbra’.

Dworkin however attacked the thought that just because there’s no right answer in the hard cases it must be a judge is exercising a law creating discretion.  But he combines this with an indication on how right answers can be discovered even in hard cases.  Harris calls Dworkin’s position as “the right-answer thesis”.

The positivist says judges don’t just declare the law, they make the law at times.  Dworkin says judges don’t have a law-creation discretion but that even on the hard cases, and the judges will get in wrong sometimes, but there’s always a right answer to be found.