Ronald Dworkin on Adjudication

Introduction
• American Philosopher- constitutional law
• scholar- Rights Advocate
• Natural Law –revival – through developing the
interpretative mechanism of Law
• Taking Rights Seriously; Law’s Empire, Justice for
Hedgehogs
• In taking right seriously he starts with critiquing- Ruling
theory of Law- two parts- Law consist of rules decreed
by certain specific institutions. – what purpose should
law serve- general welfare of the society?
• The ruling theory has been opposed, Dworkin says, by
thinkers on the political left, to whom it seems that
formalism inherent in positivism compels the courts to
enforce justice of a procedural character, preventing them
from administrating substantive justice.
• Critics of ruling theory on political right follow that law
consist not only of rules that are ordained, but also of
diffuse customary morality of a community. Acc. To them
optimism of utilitarian is ill founded.
• Welfare emerge form the experience of the community-
from social culture- rather social engineering.
• None of these critiques have based there idea on the
ground that ruling theory is defective because it has no
place for individual rights against state that are prior to the
rights created by explicit legislation.
• Taking rights seriously- individual –based on old
traditional theory
• Dowrkin criticize Hart and Austin- essential elements of
positivism
• Hard Cases- are one where it is hard for a judge to
decide which of the two conflicting principles should
prevail.
• Riggs v. Palmer
• Henningsen v. Bloomfield
• Intersecting principles and policies should be used
• Positivism,– misses these principles
• Persuasive pull
• H.L.A. Hart- rule of recognition- use of discretion
• Counter to ruling theory-
• Two types of argument that are employed to justify a legislature
to enact a law or to judge to reach a particular decision.
• Argument of Policy-Argument of Principle
• (political decision-common good)- (political decision by showing
that decisions respect individual rights)
• Spartan Steel and Alloys Ltd. v. Martin & Co
• How judge is going to decide
• Superhuman skill lawyer & Hercules Judge
• E.g. of chess –chessness of the chess.
• Law is seamless web of principles –
• Judges do not make law, but find it
• Discretion at the edge – penumbra of uncertainty-
no rule-Hart (discretion) – problematic acc. To
Dworkin- strong positivism
• In his second Book Law’s Empire- he carry
forwarded the argument while focusing on ‘HARD
CASE’
• E.g. A statute provides that it shall be an offence for
vehicle to enter in a public park. Therefore one who
is walking in park commits no offence; & A person
who drive car or motorbike certainly violates the
law.
• But what about the person who goes to the park on
a skateboard?
• Discretion at the edges:
• Where the rule has a penumbra of uncertainty,
where after certain point law ‘runs out’, where
the law simply ‘cannot be read off’ ? Hart-
solution- judges act as deputy legislator to
decide whether skateboard is a vehicle or not.
• Dworkin- strong positivism or conventionalism
• In general Dworkin is critical about ‘Speaker’s
Meaning Approach’ & ‘Constructive
Interpretation Approach’
• He offers Law as Integrity: conception of law as
integrity is to be seen in its legal practice as a
moral agent acting on a single coherent set of
principles of justice and fairness.
• Because acc. to him by following the earlier
discussed approaches we try to tell a ‘best story’
– problematic and defeat the end of justice.
• Whereas -law as integrity- one try understanding
the statute that casts the best light possible on
the statute as the political act of a community
with integrity through its legislation.
• Thus interpretation of statute must render the policies
and principles contained in the statute as far as
possible.
• Whether he is indicating about Pragmatism?
• acc. to this view judges decide cases according to what
will best achieve the social goals, considering the
“practical” consequences and bearing on human
interests.
• The supporters of pragmatic view of adjudication may
recognize that consistency with past decision can be
useful for claiming strategic reasons, but maintain that
it has no intrinsic value.
• ‘Nobel lie’
• On conventionalism- it follows Semantic
approach: seeking the nature of something by
means of describing the thing’s most obvious
features and then identifying which of those
features are most essential in explaining how
the word is used. (e.g. use of word ‘public
purpose’ in land acquisition laws; ‘basic
education’)
 The proper role-Interpretation
• A judge’s proper function is to be seen, Dworkin
maintains, not in filling the gaps by exercise of his
discretion, but by undertaking a process, what he
terms ‘interpretation’.
• The Chain of Novel –
• Therefore judge’s responsibility is to ensure that his
judgment fits what has gone before so that a
coherence or consistency
• reliance on principles,-i.e. to act in accordance with
the standard regardless of consequences
• Where individual is to be treated with
fairness. (fairness related to equality of
control over the legislative process in any
society- political fairness)
• Checkerboard Solution? Where parties are
divided between white and black blocks?-
compromise- then don’t it be like Solomon’s
decision – that Dworkin refers.
• The Missing Factor: he write- Astronomers
Postulated Neptune before they discovered it. They
knew that only another planet, whose orbit lay
beyond those already recognized, could explain the
behavior of nearer planets. Our instincts…suggest
another...ideal standing beside justice and fairness,
Integrity is our Neptune.
• Law as Integrity: that he no where defines – he
simply suggest- law as integrity demands; insists..
• Equality of treatment; law as integrated as a
whole- wholeness, completeness, entirety.
• But how it is possible- as judges are human
beings- their own perceptions etc. – if there is
Ties?
• Achilles Heel –
• Law as integrity is like a fruitcake. It is
composite of ingredients; and without them it
can’t be called cake- as it become food