Application of law

  1. 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.
  1. 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.
  1. Integrity
  • 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.

Precedent has enactment or gravitational force

  • Precedent has enactment or gravitational force – fairness in treating like cases alike if earlier decision were taken to be entirely justified by some argument of policy, it would have no gravitational force. Its value as a precedent would be ltd to its enactment force in decisions generated by policy, there’s no need for consistency
  • Hercules is useful b/c he sets a standard by which real judge might measure his performance he’s more reflective & conscious than any real judge need to or indeed could be
  • In his pursuit of coherence & integrity, Hercules will find one best answer to the legal question before him
  • Tal’s smile – in chess tournaments one of players, Tal, smiles inanely @ opponent who unsmilingly objects, referee must decide if this breaches the rules, but rule book is silent, so he needs to reflect upon nature of chess – as a game of intellectual skill, does it include psychological intimidation? Must find that best “fits” general theory & practice of chess. To this, there can only be 1 right answer applies to judge deciding a hard case too & lawyers accept there’s only one correct outcome to legal dispute: when give advice, don’t say “this will either be valid or invalid” but bases himself on interpretation of the law enabling him to give best answer of state of law as he finds/understands it.
  • But proposition is still rather bold – might be right w/crim. law but not w/tort or contract disputes. Hercules would here determine the answer but wouldn’t it be subjective? He’d look @ background facts, precedents, doctrine as he understands them, so if we take Hercules 2 (more conservative) would his answer be the same? Well it was the same in the case of UPVC window Glasgow versus the House of Edinburgh [2009] CHS 234

Dworkin’s ‘Law as Interpretive Concept’

  • Law is an interpretative concept acc to conception of “law as integrity”, its content depends on more refined interpretations of the same legal practice it has begun to interpret.
  • Unlike positivism, Dworkin’s theory claims to be able to account for “disagreements in the law” – positivists claimed to argue that such disagreements are actually about what the law ought to be but this isn’t satisfactory. Theoretical disagreements frequently occur in legal practice & academia, and claiming their non existence would equate to calling practice in which legal scholars engage incoherent.
  • Judges should decide what the law is by interpreting the practice of other judgeslaw as integrity unites jurisprudence & adjudication in this way.
  1. Community of courtesy example
  • Members follow a set of rules; i.e. rules of courtesy (may require peasants to take their hats off to nobility). For time being, rules are there & not questioned but then all this changes & people develop an interpretative attitude towards them which has 2 components: 
  1. assumption that practice of courtesy has value; i.e. serves some purpose
  2. assumption that requirements of courtesy are sensitive to the purpose, so that rules must be understood, applied or modified acc. w/it