Dworkin Lecture 1 21/02/2014 2:06 PM

Principles & “The Model of Rules”

Lecture 1: Legal Principles and “the Model of Rules”

1. Introduction to the lecture series: Ronald Dworkin (1931-2013)

2. Focus on Dworkin, “the Model of Rules” (MOR)

Attach on legal positivismDworkin wants to dispute the assertion that the law simply exists of a set of rules, and that difficult cases arise when the law is in dispute. Thinking of the law as a set of rules, and learning the law consists of learning what the rules are.

Distinction between rules and standards. both species of norms Rule: fairly determinate and measurable, e.g. speed limit,

president must be over 35 Standard: requires judgment, not easily determinable, e.g. duty

to take reasonable care, excessive fines must not be imposed Standards allow a little bit of decision making to be made

‘downstream’ as opposed to everything being made by the rule maker

Dworkin wants to add to these two a third element, principles Dwokin’s taxonomy is STANDARDS split into rules and

principles

Dworkin thinks a legal system has background principles which pervade the body of law as a whole.

“the well established policy of English law is to impose harsher punishment on people who do wrong with intention than those who do it negligently”

“cannot allow wrongdoers to use their wrongdoing to their advantage”

Dworkin tends to think that the background elements are more or less consistent rather than contradictory

Distinction: law which is enacted or law which simply ‘emerges’ bodies of doctrine emerge from the interaction of various

precedents Customary international law Riggs v Palmer (New York CA): Elmer Palmer poisoned his

grandfather because he thought he might change his will (to exclude him). Question was whether the property should pass to Palmer or Mrs Riggs (Palmer’s aunt). On the face of it, the will was completely fine. Majority said 1) It cannot possibly have been the intention of the legislature to have the statute of wills apply to such a case 2) “all laws, as well as contracts, may be controlled in their operation and effect by general… -on hand out-”. They also said that it was a principle common to all jurisdictions, so goes to show how precedents from other jurisdictions can affect judges

o Cited insurance cases and other cases for support Two judges in minority said we have got to stick with the statute

Underlying principles require reaching from ‘surface’ to ‘deep’ law

Principles: how they work

Work differently from rules, don’t work in an all or nothing manner Principles have a ‘bearing’ on how you think about the law, and

may compete with other principles. Don’t have definitive formulations, can be expressed in a variety

of ways Often operate as standards can change over time, as the spirit of the law changes (not like

natural law) When the rules run out you have to use your discretion, but this

word discretion needs analysis

Discretion “weak discretion” No review/review (WHICH ONE?) The norm you are applying requires judgment You judgment is guided

“take your ten most experienced men and attack that position”o have to use judgment to some extent (what kind of

experience), but your judgment is guided Dworkin thinks the judges in Riggs v Palmer HAD to take the

common law principles in mind, they were doing what the law required them to do

Dworkin moves on to say that we are not just dealing with principles but also with policies and the law’s purpose

Principles can give rise to rights, while policies cannot English judges tend to refer to both principles and policies as

‘policy’

Hinnings v bloomfield (new jersey): in a society like ours the automobile manufacturer is under a

special obligation. Apply notwithstanding waiver of liability

Principles can also apply at a meta level, norms about norms Principle of parliamentary sovereignty, rule of law, respect for

precedence etc.

Sometimes when a judge is laying down a norm, he phrases it for subsequent judges. Other times subsequent judges do it.

when we read cases, we read them as tiny propositions of law or 20 page statues

precedence can have general or gravitational force as well as their specific force, distending the law in a particular way

o Dworkin is a wholist about the law: treating like cases alike is a much wider doctrine than what people might think

Dworkin says that the principles he is talking about are legal principles (though they might have a moral quality)

that is to say that they are a part of the law if so, why can’t there be a rule of recognition for these principles Dworkin things the process of discerning deep law from shallow

law is very difficult and important.o Maybe you can’t sum it up in some basic RoR

21/02/2014 2:06 PM

21/02/2014 2:06 PM