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Dworkin's Theory of Law & Adjudication
DWORKIN THEORIES OF LAW AND ADJUDICATION
§ Hart’s legal system is a union or primary and
secondary rules
§ Come about in interpreting legislation where there is
open textured (or ambiguity and gap) of the legal language.
§ See case of Grisworld
v Connecticut where it is on the women taking conceptive pills and they
claimed that the usage is of their privacy. However it was first held to be a
breach of the State of Connecticut statute. However the party claimed here that
not allowing so would be a breach of their fundamental rights as per the US
constitution. In interpreting the privacy rights conferred in US (because the
constitution does not expressly and clearly provides so) therefore the term Penumbra
here comes in where there is doubt, then implied interpretation would be used
in interpreting. This brought to the new
method of interpreting the US constitution and it is also known as the
substantive due process to protect rights not specifically mentioned in rules/statute
or constitution.
§ In the case of Roe
v Wade, the decision established woman right to privacy. Where here it
involves abortion and abortion can only be done when it affects the health of
the woman. But here the lady claimed that she would want to abort based on her
right to women privacy as impliedly interpreted using the concept of
penumbra. The legislators are man and no woman hence there was a
dispute that the woman will usually have to suffer the burden of unwanted
pregnancies because it would be easier for the guy to escape. Hence, with that
after consideration and reading the constitution through the method of
Penumbra, and in avoiding gender discrimination issues, the court allowed her
abortion with the interpretation thus giving an implied meaning to the right of
privacy in US.
§ Hart also further provides on the three (3) issues to
be considered I adjudication:-
ü In minority cases there may be a single manner of
interpreting a rule
ü There is no correct way of interpreting rule because
what is correct depends on what the judges thought to have been correct when
they decided depending on circumstances. Refer to distinguished case of Balfour
v Balfour + Merritt v Merritt. In BB & MM it involves wife who would like
to claim for the money as promised by their husband so called maintenance.
A. Difference is in the case of BB, the parties were in
good terms when the agreement was reached and therefore court did not see how
it could amount to the creation of legal intention and couple was still staying
together. Hence in BB, court considered it as domestic agreement.
B. However in MM, parties were already separated and they
were not as in good terms as couple was in BB and therefore resorted to singing
an agreement in writing. The relationship status in these both cases is very
distinct that explains the difference in action taken. One is merely a promise
the other one as here in MM seems to suggest that they intend to create legal
relation through the signing of the agreement.
However it
must be considered that not because they did not resort to lawyers it would not
amount to the non creation of legal relation.
§ Dworkin rejected the view of judicial discretion and
argues that judges discovers the law and not make law.
§ The case of Donoghue
v Stevenson can take as example or how when judges create new laws. Here
the established law is duty of care, but new law was said to have been created
here when it narrowed down the cause of action. Cause of action can be brought
when there is some background of contractual or quasi contractual relationship.
Need to prove the relationship, foreseeability an proximity. Before this was
merely duty of care owed to neighbours, but neighbours can be expanded.
Manufacturer through this case owes their consumer a duty of care.
§ Dworkin distinguished principle and rules.
A. Principle: à
it provides a reason to the argument that goes to one direction
B. Rules: à
rules dictate the answer
§ Dworkin argues that there would come the one right
answer and one right answer can only be found in hard cases. Hard cases means
when; lawyers cannot agree upon the right, there is no settled rule regarding
the matter and where the rules can be given various interpretations by courts
(not fixed). He claims that the only one who can achieve this is Hercules
(metaphor). He received critiques on this and he did not accept this skeptical
arguments.
§ Dworkin argues that judges should rely on principles
and not policies.
§ Dworkin’s example of legal principle is in the case of
Riggs v Palmer whether the
murderer can inherit the will of his grandfather whom he murdered. So Dworkin’s
view rely on principles and not policies. Principle here is according to the
law where he is subjected to inherit the estate as per the will. However policy
here involves moral consideration which will prevent Elmer from inheriting the
will because of his immoral act. This also brings the court to look into the
policy of whether the old person who has pass down the property would want it
be given to the murderer. So public policy here applies and the policy is that
one cannot benefit from their wrongdoing and this applies to this case which is
not in Dworkin’s view.
§ Metaphysics is a branch of philosophy which deals with
first principle of things and abstract concepts and there is no basis of
reality. Example of question; What is mankind place in the universe?
§ Epistemology à
studies nature, methods and limitation of knowledge or belief. (episteme)
§ Judges do not have strong discretion to decide cases
without being bound by precedent or statute.
§ Judges do not have the discretion to decide in unclear
cases by reference to policy (all these are Dworkin’s views)
§ However Dworkin feels that policy grounds can be used
to override a right but it should be done by the legislature and not the
judges. This leads to the sample of Snail
Darter case where in the enactment of the Endangered Species Act, it
was brought to thought as to whether the Parliament in enacting the statute has
taken the policy to protect the environment and willing to the allow the loss
of such a big sum of money than to affect the snail darter’s habitat. This is
the argument.
§ Another example is also the Lina Joy example where the principle here is that freedom os
religion is found under the constitution of Malaysia but the policy here will
be gal based as to what the country wants? If they permitted her to convert
out, would it be against the public policy of the country governing the Muslims
which might create havoc? However policy can be used in interpreting statutes
but should not be used in making decisions.
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