Ronald Dworkin has become one of the most influential legal philosophers over the last century providing a ‘sophisticated alternative to legal positivism’. Dworkin is a non-orthodox natural law theorist, his account of law centres on his theory of adjudication. A key aspect of adjudication is the concept of Law as Integrity. However, some commentators suggest that Dworkin’s ideal does not reflect the reality of judicial interpretation. In this paper I will outline Dworkin’s ‘law as integrity’ and then highlight some of the criticisms that appear to generate doubt over his writings as a convincing model. I will conclude that whilst his main opponents offer some substantial critiques of Dworkin’s theory of ‘law as integrity’, Dworkin does establish a convincing theory that tries to bridge the gap on judicial discretion that other notable theorists, including H.L.A. Hart, fail to achieve.
‘Law as Integrity’ and discretion
‘Law as integrity’ embraces a vision for judges which states that as far as possible judges should identify legal rights and duties assuming that they are created by the public as an entity, and that they express the public’s perception of justice and fairness. This requires Dworkin’s ideal of Hercules, a judge of ‘superhuman skill, learning, patience and acumen’, to ask whether his interpretation of law could form a part of a coherent theory justifying the whole legal system. Law as integrity stipulates that the law must express one voice. Judges must accept that the law is based around coherent principles about justice, fairness and procedural due process, in all new cases which comes before them in order to treat everybody equally.
The concept of ‘law as integrity’ first arose in Dworkin’s most quoted book...
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...m that Hercules is superficial and unachievable, Dworkin argues that he does not, (as mentioned above), persist that a Hercules standard is achievable for the everyday judge. He does however suggest that throughout their legal experience they will have gained enough information and knowledge to be able to assess which cases to use in the case of a hard case coming before them. Many would argue that this response is weak as it does not attend to the problem that Hercules has an ‘omnipotence of legal knowledge’. Whilst judges may have gained enough experience to be somewhat wise and insightful they cannot profess to be omnipotent. Therefore the judgement the judge delivers may not be the ‘right answer’ as their understanding and answer is restricted to their experience and does not extend to the capabilities of Hercules with his unlimited time, knowledge and wisdom.
The focus of this essay is to examine the extent to which Dworkin provides a convincing alternative to positivism. The central claim of legal positivism states that "in any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits". Dworkin completely rejects the positivist approach because he believes that "no combination of source-based rules, no matter how broadly construed or how carefully crafted can ground a theory of law". Dworkin is evidently making a big move away from positivism. The first part of this essay will explore how Dworkin 's rejection of positivism has led him to formulate an alternative theory of law. The final part of the essay will analyse how Dworkin has failed in getting an
Culver, Keith Charles. Readings in the philosophy of law. 1999. Reprint. Peterborough, Ont.: Broadview Press, 2008. Print.
Have you ever ask yourself how much being unjust impacts your everyday life and decisions, and how your life would change when you are just? Plato wrote in this book’s expect about how Glaucon perceives the basic idea of justice and how we humans perceive justice as. People created own laws and are deciding whether or no to follow them. One of Glaucon’s argument is that we follow justice to get things or because of its consequences. He also argues that we should preserve justice as a way to gain things not to value it for its own sake. The first of Glaucon’s two claims is the descriptive claim which talks about and explains that humans instrumentally value justice instead of intrinsically valuing it.
MacCormick’s institutional theory advances from Kelsen’s pure theory of law which considers politics and morality to be impurities. Whilst politics involves the process of law-making, MacCormick dismisses it from the institutional theory as it concerns the exercise of power to act in a certain way rather than according to the normative order. It is argued that the law is not coercive but normative in power as legislation has the power to alter practice without the need to provide direct orders to agencies. Nevertheless, this argument has limitations as the law can also be deemed as coercive due to the sanctions that the judiciary can impose on individuals. Furthermore, legal positivists argue that moral norms are distinct from legal norms and therefore prefer to exclude it from the institutional law theory. MacCormick argues that not all legal rules contain a moral element. This is a limitation of the theory as the law can only maintain the normative order in the “legal sense.” Different people have different views on what is morally correct and if this is not embodied in the law then it is difficult for the normative order to be upheld as there would be a conflict in the decision of what ought to be done in the circumstances. Moreover, this theory is based on democratic law which is not universal and therefore rejects the
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Parliament, the supreme law-making body, has an unrestricted legislative power, and the laws it passes cannot be set aside by the courts. The role of judges, in relation to laws enacted by Parliament, is to interpret and apply them, rather than to pass judgment on whether they are good or bad laws. However, evidence has shown that they have a tendency to deviate from their ‘real roles’ and instead formulate laws on their own terms. Thus the real role of a judge in any legal system continues to be a phenomenon questioned by many. We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law” . In this essay, I will argue the ways that judges do make law as well as discussing the contrary.
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Why is the concept of the rule of law an important aspect within society to have an integral understanding of? The rule of law is a facet of our society that affects and serves our lives on a daily basis because rules and laws dictate the underlying basis of our social interactions. One basic understanding of the idea of the rule of law is that society should be ruled by law, and not by men. At perhaps the most rudimentary level, the rule of law has been used to explain a type of governance that is founded upon universal and neutral rules. Endicott argues that communities can never adequately achieve the rule of law because “it requires, among other things, that government officials conform to the law. But they may not do so, and presumably there is no large community in which they always do so” (Endicott, 1999, p.1). Consequently, an area of rule of law is explored by Aristotle’s critique of Plato’s philosopher-rulers theory and his defence and understanding of the rule of law.
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The relationship between law and morality has been argued over by legal theorists for centuries. The debate is constantly be readdressed with new cases raising important moral and legal questions. This essay will explain the nature of law and morality and how they are linked.
Law is the foundation of central structures of social life on which society’s integrity depends, which is why Petrazycki, Ehrlich and Habermas perceive it to be a key steering mechanism in society,
The concept of law is an important philosophical subject in legal jurisprudence that has provoked debate in previous years, especially between Hart and Dworkin’s . Hart's theory was contained in the Book, the Concept of Law that provided a general and normative description that explained the notion of law. Herbert L.A Hart is famous for his legal philosophy that sought to define the concept of law. He redefined jurisprudence and established a line of inquiry in philosophy regarding the concept of law. Dworkin’s criticisms of Hart’s arguments have a focus on the doctrine of judicial discretion and the separation of morality and the law.
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