Session Dworkin selections from Taking Rights Seriously

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later when Dworkin argues that we have more reason to be concerned about. judicial appeal to policy than to principle, So one problem with Hart s model of rules is that it cannot accommodate an important. part of the law the role played by principles,Two ways of accommodating principles. 1 Treat principles in the same way we treat rules of law as elements of the law that. judges are legally bound to take into account, 2 Treat principles as external to law and appeals to principle as extra legal as judges. reaching beyond the law to make decisions the law itself does not obligate them to. make In such a case Hart might say a judge exercises discretion. Three Kinds of Discretion, There are three different things we might mean according to Dworkin when we claim that. judges must exercise discretion in deciding hard cases. 1 Discretion as the use of judgment judges must exercise discretion in the sense that. determining how they legally ought to rule cannot be done mechanically but. requires them to use judgment Weak, Other examples a referee deciding which boxer has won a fight a sergeant.
ordered to form a team of his most experienced soldiers deciding who is most. experienced, 2 Discretion as finality judges may have discretion in how they rule if their ruling is. the final arbiter of the case it can t be overturned Weak. Other examples a second base umpire s ruling that a runner reached the base. before the ball did, 3 Discretion as freedom from standards set by the authority granting discretion. judges may have discretion if the standards of law governing how they may decide. cases have nothing to say about the case Strong, Other examples sergeant ordered to pick five men for his team with no further. instructions may exercise his discretion in choosing them. Dworkin notes that even discretion in this strong sense does not exclude. criticism there may be other standards by which the judge s or the sergeant s. decisions may be criticized but those standards won t be those established by. the authority granting him discretion they re external standards. Dworkin argues that a judge s having discretion in the first or second sense in no way. entails his have discretion in the third sense indeed the first sense of discretion precludes. the third because it makes explicit reference to the internal to law standards governing. the judge s decision, Legal Realists according to Dworkin conflate the second and third sense of discretion. they confuse finality with infallibility relative to internal standards. Model of Rules theorists like Hart conflate the first and third sense of discretion judges must. often exercise judgment in deciding hard cases we shouldn t be misled by this into. concluding that in deciding such cases judges reach beyond the laws they are bound to. apply Hart s claim that judges who appeal to principles to decide hard cases are exercising. strong discretion misdescribes according to Dworkin what judges do in such cases. What s preferable about taking principles to be internal to law as Dworkin claims. And why is the dispute not merely verbal, Hart while all rules have a core of settled meaning there s a penumbra of cases where.
the meaning of the rule is indeterminate e g No vehicles in the park In such cases the. law does not contain anything that compels the judge to settle a case one way rather than. another and the judge must appeal to extra legal considerations to make his decision In. such cases judges make rather than apply the law Hart sees his account as occupying a. reasonable middle ground between the extreme rule skepticism of the Legal Realists. according to whom judges always have the discretion to rule as they like and Dworkin s. view that the law is almost maximally determinate, Dworkin legal principles are internal to law Judges deciding hard cases have a legal. obligation to take principles into consideration though probably not to give them a. particular weight so long as they proceed conscientiously A judge s job is to use. principles to interpret the law and respond to previous rulings in such a way as to make the. best sense out of the legal system he has inherited judicial decision making compared to. writing a chain novel, According to law as integrity propositions of law are true if they figure in or follow from. the principles of justice fairness and procedural due process that provide the best. constructive interpretation of the community s legal practice Law s Empire p 225. Dworkin s criticism of Hart, 1 It s a social fact which the positivist must acknowledge that judges very frequently. reject established rules even in cases like Riggs where the meaning of the. established rule is straight forward, 2 Since general acceptance is a precondition of the existence of a secondary rule it. cannot be that the rule of law forbids such overturning of previous decision. Instead it allows judges to overturn such rules on occasion Otherwise we d have. to conclude that there is no rule of law in the US and UK e g. 3 But then there must be some standards that are internal to law standards that. specify when a judge may reverse a previous decision Otherwise the judge could. reverse any decision and then we would not according to positivism have rule of. law at all because judges would not see themselves as bound by the rules The. standards judges appeal to in such cases look like principles not rules e g Riggs. 4 These standards are themselves to be weighed against the standards that argue. against departure from precedent legislative supremacy the unfairness of ex post. facto legislation, 5 But these standards are themselves principles taking them all into account is a.
matter of weighing the pros and cons,6 So at least some principles are internal to law. In short there is no middle ground to be occupied between the Legal Realists and. Dworkin s view When judges overturn previous decisions or introduce new rules by. appeal to principle they must be exercising discretion at most in the first judgment based. sense Otherwise we can t explain when judges have discretion in the strong sense. without concluding that the always have it,Where does this leave Hart s positivism. Dworkin has been arguing against the second tenet of legal positivism the claim that. legal rules are exhaustive of law and that judges must exercise strong discretion in. deciding cases not explicitly determined by the rules Dworkin says the law contains. principles not just rules and that these guide judicial decisions in hard cases. What about the third tenet the claim that judges deciding hard cases that force them to. go beyond the rules are not enforcing legal rights or obligations If judges in such cases. are constraint by standards internal to law a door is opened to the possibility that. constellations of principles themselves establish legal obligations. Finally the first tenet that identifying valid rules of law relies on a test for pedigree not. content Can we appeal to a test for pedigree to determine which principles are internal. o The standard tests for the validity of rules don t easily apply to principles the. principles appealed to in Riggs and Henningsen weren t enacted by legislature or. court rather their origin lies in a sense of appropriateness developed in the. profession and the public over time Their continued power depends on this. sense of appropriateness being sustained, o Moreover the clean distinction Hart appeals to between the acceptance of a. secondary rule and the validity of a primary rule does not apply to principles. some arguments we make to support appeal to principle by pointing to. precedent but we might then support appeal to precedent by pointing to. principle arguments of validity mix together with arguments of social fact. Is the dispute merely verbal, Dworkin says no it s essential to our understanding of judicial obligation. Question Are our all things considered judgments about how a judge should rule about a. particular case affected by whether we think a certain ruling would require her to legislate. from the bench, What worries does the model raise about undemocratic or ex post facto decision making.
Consider Dworkin s distinction between policy based and principle based decisions He. argues the latter are less problematic than the former Why. MIT OpenCourseWare,http ocw mit edu,24 235J 17 021J Philosophy of Law. Spring 2012, For information about citing these materials or our Terms of Use visit http ocw mit edu terms. Session 4 Dworkin selections from Taking Rights Seriously often exercise judgment in deciding hard cases according to Dworkin what judges do in such cases

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