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Moral integrity of law - Ronald Dworkin

Is it possible for morality to be incorporated in the judgment of law? Doesn't the judge adjudicate a case based on their perspective? Won't that involve morality? But didn't I just learn from the legal positivist that morality should nowhere come close to law? Head on to read more about Dworkin, who...

'No one has yet effectively attacked his theories of law and politics on the grand scale as Hart did on Bentham..." ~ Stephen Guest from Ronald Dworkin

Ronald Dworkin (1931-2013): a notable critic against legal positivists and supports 'the unity of value'


Image extracted from The New Republic: Can You Have Religion Without God?

  • He establishes that when a judge faces a "difficult case" (i.e., there is no identifiable rule to solve the case), a judge will consider the principles, policies, and rules Principles and policies are legal reasonings that add weight to a decision made.

  1. Rules - 'applicable in an all-or-nothing fashion' that dictates a case

  2. Principles - it is essential to protect fairness and morality

  3. Policies - a standard that 'improve[s] political, economic, social feature of the community'

  • Judges have the obligation to find what is "right" for their society and is morally justified (rather than their own belief)

Dworkin's stages in the development of theory:

  • 1970s: legal positivists are unable to show the significance of law

  • 1980s - heads on to a more radical theory - law was fundamentally "an interpretive phenomenon" - deciding how a law is implemented in a case will require interpretative reasoning, which derives from evaluation

  • Criticisms against:

  1. Conventionalists (i.e., legal positivists) - who believed that law is following a certain convention. Dworkin argued that judicial interpretation is required to fill the gaps in terms of whether a convention should be followed.

  2. 'Semantic sting' - positivists are not trying to identify the basis of legal validity instead, they are arguing what law means.

  3. Pragmatists - who believed that law is by the discretionary of judges. Dworkin contended that 'law as integrity', instead of past political decision, provides a reasonable justification for state coercion. Law 'is defined by attitude, not territory or power or process.'

Liberalism - He puts great attention on the idea of rights on the basis of 'government must treat people as equals.' Below are the three elements of political morality:

  1. Justice - legislators will incorporate both the weights of individual rights and collective goals

  2. Fairness - citizens will be able to exert "equal influence" in cases that will affect them

  3. Procedural due process - "correct procedures" when judging the case

Law as literature - interpreting the law as if interpreting a novel in a constructive manner (i.e., understanding the purpose of the author)

  • the author's intention is only one of the methods to interpret the law

  • e.g. Social practice - When a rule has been added value with flexibility. In order to not fall into the 'semantic sting', law should be reinterpreted in light of its meaning (discussing the substance of a law). For instance, identifying certain theories.

Law as integrity - respecting law as a whole

  • preserving predictability and procedural fairness: protecting the equality among citizens

  • rule of precedent: needs to follow the previous decision's personal and political morality

What does 'Legality' mean to Dworkin?

When all members of a community are equal

  • An 'associative obligation' in a political society creates true community. The obligation entails people believing that their obligation is:

  1. special

  2. personal

  3. on the basis of equal concerns for the community hence, the ideal of integrity must be genuine in a true political society (but realistically - is it possible?)

Law and morality

  • Dworkin's interpretation of Hume's theory - "world or human nature cannot normally ordain what ought to be" - creates another type of knowledge that has its own rule of measure

  • Dworkin argues that moral values are independent and objective

  • we need to justify our value judgments using more abstract value

  • e.g., live a life of dignity → self-respect → recognize the importance of others' life (owing moral duties to others)


 

Credits

The information provided above is all credited to Raymond Wacks's Philosophy of Law: A Very Short Introduction.


P.S. If you are really interested in exploring the world of jurisprudence (on 'What is law?"), make sure to check out his book!!


#jurisprudence #notes #introduction


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