·
Law cannot be understood in isolation to culture
of a society. Different societies with different culture can have different
meanings of law.
·
In the Anglo-American legal culture, power to
make law does not lie with physical force but with moral authority.
·
The characteristic that makes people obey law is
its integrity. People will obey even an unjust and unfair law as long as it has
integrity as a whole. There are two
principles of political integrity:
o
Legislative
principle: Legislature should try to make law consistent and morally
coherent with the principles established within the legal system.
o
Adjudicative
principle: Judiciary should also make an attempt to view the law as
coherent as far as possible by interpreting rules and statues in a manner consistent with the previous regime.
Dworkin on Principles
·
As per Dworkin, Law consist of rules as well as
principles.
·
When there is no rule judges may resort to principles
already imbedded in the legal system.
·
Dworkin argued that judges must always use
principle in hard cases and not use policy decisions.
o
Policy does not require consistent decisions.
o
Principle requires consistent decisions.
·
Dworkin argues that if judges do not make
consistent decisions then that will undermine the faith of the individuals in
the judiciary.
·
Principle does not automatically answer the
legal question and they may be even contradicted by an official rule. The judge
must consider the relevant principle or rule while making a decision.
·
Dworkin assumes a fictitious judge, Hercules,
who will go through all the rules and the principles till he gets an answer to
the problem. He assumes that every question can be answered from within the
existing set of rules and principles.
·
Judges could make mistake but the fact that they
may err does not imply that there is no right answer to the problem within the
legal system.
·
A good legal system endeavours to reduce the
overall number of mistakes.
·
Judges could also import morality while making a
decision but the morality has to be of the system and not that of the judge.
Dworkin on Law
·
Dworkin rejected theories providing a universal
description of law.
·
He considered that each community has its own
understanding of law and therefore any attempt to universalize the definition
of law is futile.
·
He identified the following characteristics of
his Anglo American culture:-
o
Law consists of rights and responsibilities of
citizens.
o
Political decisions of the ‘right sort’ are the
source of rights and responsibilities. These decisions include constitution,
legislation and judicial decision.
o
State’s coercive acts could only be justified to
enforce the rights and responsibilities established by past political acts.
Dworkin on Use of
Force
·
Dworkin advocates for limited use of force
because if courts decide as per their own whims and fancies the law will become
unpredictable and arbitrary.
·
Another advantage was this led to a kind of
equality which led to like treatment of persons in like situations. Dworkin did
not require absolute equality.
·
Dworkin also insisted on integrity of law to
ensure that law meets the moral demand.
Dworkin on Interpretation
·
Dworkin’s concept of integrity of law demanded
that laws be interpreted in a manner that they remain consistent to earlier
established rules and principles.
·
In hard cases, Hart stated that judges act as deputy
of legislature and it is here that Dworkin disagreed.
·
Dworkin expect a judge to not legislate in hard
cases but rather gather a solution from the existing set of rules and
principles to maintain integrity and consistency.
·
He identified
three stages in the process of interpretation:-
o
Pre-interpretive
stage
§
Interpreter (Judge) identifies relevant material
such as statutory provisions and case law
o
Interpretive
stage
§
Interpreter determine the reason for treating
the legal document as relevant to the case
§
Eg:- Application of Copyrights Act in a dispute
related to copyright
o
Post-interpretive
stage
§
At this stage, interpreter must identify what
will better serve the justification he accepts at the interpretive stage
§
The justification is that the system as a whole
promotes integrity of the law.
Dworkin on Law as
Chain Novel
·
Dworkin compared the law to a chain novel and
the role of the judge to that of a chain novelist.
·
Each novelist in the chain interprets the
chapters he has been given in order to write a new chapter, which is then added
to what the next novelist receives and so on.
·
Each has the job of writing his chapter so as to
make the novel being constructed the best it can be, and the complexity of this
task models the complexity of deciding a hard case under law as integrity
Dworkin on Law
& Morality
·
Dworkin considered a community’s law different
from its popular morality.
·
He defined popular morality as the set of
opinions about justice and other political and personal virtues that are held
as matters of conviction by most members of a community, or perhaps of some
moral elite within it.
·
In Anglo American culture, integrity is
essential feature of law so accordingly law may fail popular morality while
retaining its integrity.
·
He argued that there is moral value in the
integrity of law even when its results are unwelcome.
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