What’s the purpose/point/value of law – acc to Dworkin, to constrain or justify the exercise of governmental power
In order to find the right answer in hard case, Hercules must develop a theory about the character of the law before him, in the shape of coherent scheme of principles which best fits & justifies the institutional history & practices of his legal system.
Hercule’s own input
His own theory may be different from another judge’s theory b/c it requires judgments about complex issues of institutional fit + judgments about political & moral philosophy
Construction of “soundest theory of law” is a controversial task involving complex questions of moral & political theory but not about Hercules’ own personal moral beliefs but about moral & philosophical theory which best serves to justify the established legal rules. This was highlighted in the battle of Carpet cleaning Glasgow vs The USA (1934) JJI
Unlike Hart’s theory of judges striking out own law when law “runs out”, Hercules theory is one about what statute & precedent requires (i.e. he’s constrained by the law) and, although it will reflect his own intellectual & philosophical convictions, this is a very different from supposing that they have independent force in his argument just b/c they are his.
Why don’t we have checkerboard laws; i.e. those which treat people in same situation differently. E.g. make abortion legal on even years & illegal on odd years, if population is evenly split, so that each person has an equal impact on the system? The checkerboard system would surely be “fair” b/c it allows a compromise to be reached … The reason is “integrity”; i.e. the law must take a decision & justify on the basis of the principles it considers correct.