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.