Law Involves Interpretation

Dworkin

Neither a positivist nor a natural lawyer – he is guided by liberal principles; writing after positivism had demonstrated that it was unable to deal w/ some of the issues arising from WWII Nazi regime.

Law involves interpretation

· Not the same as interpreting statutes

· Literary interpretation – a process of developing a theory which best explains what the law actually is in a particular situatino

· Judging must be an interpretive activity because law is not (as positivists say) a collection of rules, w/ judges exercising their discretion to fill in the gaps

o Behind the rules, lies a network of standards – principles and policies – to guide decision making

o But Dworkin says that only principles – statements about individuals’ rights – should influence JJs when they make decisions where the law is uncertain

· A J will think about everything they know about the legal environment in which they’re operating as well as the political and social beliefs which are embedded in the community

o Law is ‘deeply and thoroughly political’ – law is intimately bound up with the political ideals and aspirations which go to make up a society

· Legal system must also embody liberal principle of equality

o Gvt is there to protect the individual ultimately through the mechanism of rights

Cf Dworkin with natural lawyers

· Both looks to morals and rights as part of law

· But natural lawyers look at the transcendent and immutable moral values written somehow in the fabric of the universe

· While Dworkin looks at embedded values within the community – accepted legal and moral standards of a particular phase and a particular time

Detailed aspects of Dworkin’s Theory

Hard cases – no clear-rut rule for a judge to follow

· Riggs v Palmer: Is a murderer entitled to inherit under a valid will executed by the person they have killed?

· Hard cases are central to law: they test fundamental principles which give overall shape of law

Law as interpretation

· Judge’s role is to interpret all building blocks in the legal system and bring them together to achieve the right outcome in a hard case

3 stages

· Pre-interpretive stage:

o Assemble all existing materials in legal system – precedents, statutory provisions

o All materials are simply accepted as underlying ideas forming the basis from which decision is to be derived

o This stage involves nothing more than acknowledging rule exists, w/o having to consider the significance of that rule

· Interpretive stage:

o Giving meanings to rules – different theories will arise as to how the rules applies, or what it means

o A balancing of conflicting ideas, JJs need to show the rule in the ‘best possible light’

· Post-interpretive stage:

o The understanding of the meaning of the rule at the interpretive stage will provide guidance when the rule has to be applied in a hard case

The Chain Novel

· Dworkin assumes that each writer will provide one chapter of a novel

· In order for that chapter to make sense and to give the appearance of a single author, the writers must stay within certain guidelines, take the story as it reaches them, they have to make themselves thoroughly familiar with the already written parts (= pre-interpretive stage)

· Once the novel has been going for some time, certain aspects of the novel are well set

o JJs also, are limited in the way they can frame their judgments. The ‘story so far’ = historical legal record – has to be respected and not subject to arbitrary changes

o Judge must first develop an idea as to what the situation is about, its significance and meaning (= interpretive stage)

· Finally, judge can make a decision (or write the next chapter (= post-interpretive stage)

What if there is no rule that covers a particular situation – such as Riggs v Palmer above?

Principles and policies

· Principles are statements about the rights a person has, which should be considered regardless of whether they advance any particular practical outcome – ‘it is a matter of principle’

o e.g. an argument in favour of anti-discrimination legislation

· Policies are a description of goals which are hoped to be achieved by adopting a particular measure

o Policies do not consider the consequences of the measures as they apply to individuals but only to the overall effect of the measure as it applies to the society as a whole

o E.g. an argument that a subsidy for aircraft manufacturers will serve the community goal of supporting national defence

· Principles are not conclusive like rules; when there is no rule, there will be conflicting principles

· Policies belong to the function of the legislature – McLoughlin v O’Brian – court’s role is to adjudicate according to principle, leaving policy curtailment to the judgment of parlt

o But consider the floodgates argument – its goal is to not overwhelm courts with cases, but this leaves aside the question of whether, as a matter of principle, ppl should have a right to bring an action

· Riggs v Palmer: prima facie, rule of succession would allow the inheritance; but there is a principle in the legal system that says ppl should not be allowed to benefit from their own wrongdoing

Why principles and not policies?

· Maximising individual freedom – Dworkin upheld the right of ppl to distribute pornography or live as homosexuals

o Porn: there is no good reason why society will be made better by banning porn –

§ “The right of moral independence is part of the same collection of rights as the right of political independence, and it si to be justified as a trump over an unrestricted utilitarian defence of propitiatory laws against pornography, in a community of those who find offence in just the idea that their neighbours are reading dirty books.”

· Rights exist to support or maintain the fundamentally egalitarian nature of liberalism

· If a right exists (e.g. freedom of speech), then it would be inconsistent to say that the right can be overturned or ignored just because there is some community benefit - individuals have the right to “equal concerns and respect”

Rights as trumps

· Social or community goals (policies) vs. individual rights (principles): threshold weight given to individual rights – rights is a ‘trump’

· Trump: where within one suit of cards, any card will beat all cards of any other suit, even if those other cards are higher in the normal hierarchy of a pack of cards

· A RIGHT ACT AS A TRUMP TO DEFEAT CLAIMS BASED ON SOCIAL POLICY

· While a right may seem small and the social goal may seem very important, Dworkin insists that it is the right that should win

· Nonetheless, JJs need to make value judgments about how conflicting rights of individuals will be resolved

The end product – ‘one right answer’

· Dworkin argues there is only ONE right answer to even a hard legal problem

· This ‘one right answer’ is different to the acknowledgement that there will be all sorts of outcomes of a case – this ‘one right answer’ is meant as a solution which is the best possible answer, given all the existing law, rules and principles.

· Dworkin’s judge therefore needs to be superhuman!!! Hercules J – take a/c of a wide range of ideas ; all balanced in order for the decision to slip into a ‘seamless web’ of the law, fitting as closely as possible in amongst all other bits and pieces that together constitute the law

o i.e. where there is no previous decision on a matter, the decision is generated by an attempt to act coherently within the web of principles

Critical response to Dworkin

- some of Dworkin’s observations about judicial behaviour and the nature of rules simply do not reflect what happens in the real world

- Hercules J: does not illustrate how JJs should behave in the real world – it is nevertheless still up to a judge to discover rights and declare law

- Ideas (such as ‘hard cases’) are inadequately defined

- The theory, assuming as it does so much of a liberal democratic viewpoint, does not ‘travel well’

- Positivists do not argue that law is comprised solely of rules

Activity One

Syndicate

Session 1

This question will be the focus of your syndicate. This is the question the leader answers in their outline

1. How do rights find their way into Dworkin’s theories about interpretation of the law? Do the approaches of the High Court judges in the Bangladeshi case, in either the majority or the minority judgements, reflect Dworkin’s approach to rights?

2. Referring to Dworkin’s underlying liberal philosophical stance, and his rights thesis, how would a judge best approach the process of judging in this case? As part of your answer

o consider the circumstances faced by the appellants in the Bangladeshi case as described at paragraph 25 of the judgments of McHugh and Kirby JJ, and

o the reasoning of the administrative decision-makers and the courts below at paragraphs 20-24

3. Is Dworkin’s theoretical premise correct? Think about your responses, using Davies at pp 64-65 as the catalyst for your argument.