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.