Dworkin's right theory

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what is Dworkin's Rights theory?

  • In short, law is a gapless system of rules, principles and other legal standards and it provides a correct answer for any cases. 
  • Dworkin triggered his first criticism towards Hart.
  •  He challenges on two main grounds of Hart's theory :

1)  Law composed entirely of rules
2)  Judges have discretion in their decision-making where the dispute was not covered by any existing rule.

  • Dworkin’s theory of the judicial process is based on the distinction between rights (principles) and policies (goals):
  • Arguments for policy justify a … decision by showing that the decision advances or protects some collective goal of the community as a whole.
  • Arguments of principle justify a … decision by showing that the decision respects or secures some individual or group right.
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how is Dworkin's theory understood?

  • In order to understand why Dworkin sets out the above criticisms, it is necessary to have thorough idea of his Theory of Adjudication first.
  • He criticizes Hart that it is a big mistake to say that law is made up of rules only and judges make use of one and only one standard when deciding cases. 
  • Hart thinks the rule of recognition is a criterion or set of criteria which must be satisfied in order to render a rule valid. he sees this rule as rooted in social practice, in the sense that there is no enacted law that states what the rule of recognition is - it just is what is done by the officials exercising it, and what is accepted by them. 
  • Dworkin does not accept this -He thinks that lawyers frequently disagree about what criteria are required to render the rule valid.
  •  He argues that if the rule of recognition exists and two lawyers are disagreeing about the criteria contained in it, then either there is no rule, or one of them has got the rule wrong.
  • This weakens Harts argument that the rule of recognition is a social practice, because, by their very nature, social practices are based on broad consensus, not constant disagreements. 
  •  Hart thinks there are gaps in the law which are filled by whatever the judge think is fair, just, politically expedient etc. In other words there is an act of subjectivity involved.
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  •  Dworkin believes there are no gaps in the law and that it is one seamless web held together by principles, which are part of the law itself. 
  • Dworkin here gives us a different picture of law : there are numerous and varied standards that judges can find in legal system when resolving disputes. He argues that apart from rules, we can also find principles. 
  • The term 'principles' cover different types of norms, principles, policies, et cetera in a legal system. There are mainly two differences when comparing rules and principles. 
  • Firstly, rules apply in an all-or-nothing fashion while principles does not. It means when a rule applies to a case, no other rule can apply as an alternative at the same time. An example would be the three strike rule in a baseball games which everyone should know. 
  • On the contrary, principles may not determine the decision even if they apply in a case. They only provide a reason to the case and they may conflict with each other.
  •  The best example would be Elmer's case that I will explain in details later in this section. It was held in this case that the murderer or the defendant was denied the inheritance due to the principle, 'No one should be permitted to benefit from his own wrongdoing'. 
  • We can see that the principle is the determining factor, but it does not determine the decision of every case to which it applies.
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How are conflicting principles dealt with?

Because of the tendency to conflict, principles have weight.

  • If two or more principles apply to a case (usually some of them point to a direction and one or two points to the other, for example the policy of posing regulations or restrictions to activities in the stock market intersects with the principle of freedom of market), 
  • we need to add up the weight of the principles on each side and make a balance between them in order to reach a decision.
  •  On the other hand, rules do not have weight and are not balanced. They either apply to a case or not. And once a rule applies to a case, it will determine the decision.
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According to Dworkin, how do judges decide a case?

  • According to Dworkin, when a judge decides a case, he is not limited only to rules, actually he can also find the answer in other standards, for example, principles which the judges are bound to consider if appropriate.
  • However, he disagreed strongly with Hart that judges have judicial discretion when deciding hard cases. Instead, he contends that law is a seamless system where one must be able to find a correct answer for every case by searching through the 'moral fabric' of the society.
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How does Dworkin explain 'judicial discretion?'

  • Regarding to the question of judicial discretion, 
  • Dworkin, outlines three possible meanings of the term 'discretion'.There are two 'weak' senses and one 'strong' sense. 
  • He agrees that judges may exercise their discretion in 'weak' sense - they must use judgments in applying the standards set him by authority, and that their decisions are final and no higher authority would review or set them aside. 
  • Nevertheless, Dworkin objects to the 'hard' sense of discretion, that is judges can use their discretion to make decision without being bound by any standard.
  •  According to Dworkin, there is little legal indeterminacy and thus there is little basis for judicial discretion in strong sense.

 He also made two arguments. 

1)  it would be identical to make new laws and that should be the task of democratically elected officials instead of judges

2)  the courts will engage in retroactive legislation and th at would be unfair to the losing party who will be punished not because he or she has violated some existing laws.

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  • Finally, Dworkin further elaborates his arguments by introducing us the hypothetical ideal judge, Hercules who has superhuman power that most judges lack
  • . He can find out the correct answers for all 'hard cases' by analyzing all the applicable rules and principles. 
  • In order to do that, Hercules need to build the 'soundest theory' of law beforehand which represents the law as a seamless web of legal rules, principles and other legal standards
  •  and he would be able to justify every correct answer by referring to the soundest theory and the theory of adjudication.
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