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Dworkin Law's Empire Notes

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LAW'S EMPIRE Ronald Dworkin

CHAPTER 1: WHAT IS LAW?

WHY IT MATTERS

Mr Learned Hand, "I fear lawsuits more than death or taxes." In fact, civil suits can be more consequential than all but most momentous criminal trials.

Moral dimension: risk of public injustice, e.g., innocent person convicted of crime.

IN UK and US, judicial decisions affect more people because law becomes what judges say it is. (Constitutional position of Supreme Court in US, e.g. In 1954 decided cannot segregate schools by race, led to big social revolution).

UK Eg.

1: 19th English judges said factory worker cannot sue employer for compensation if injured through carelessness of another employee because he "assumes risk fellow servants may be careless."

2: 1975, HL fixed time Cabinet minister must wait before publishing his memoirs.

DISAGREEMENT ABOUT LAW

Thus, matters what judges think law is. Lawsuits raise 3 issues:

1. Issue of fact: What happen?

2. Issue of Law: What is pertinent law? Does it allow damages?

3. Political morality/fidelity: Is denying compensation unjust, should judges ignore law?

Judges usually disagree most about issue 2.Mostly in two ways

1. Empirical Disagreement: May agree about grounds of law (what lays beneath every proposition of law, e.g., 55 miles in california is proposition, the ground of law is saying aye in state legislature) but disagree if those grounds are in fact satisfied in case

2. Theoretical Disagreement: May disagree about grounds of law, which underlie propositions.

Empirical disagreement simple. People disagree about what words are in statue books same way they disagree about any other factual matter.

Theoretical disagreement: We see how judges disagree about what law really is

although they agree on what the statute books say.

Lay public unaware of this problem, they are more concerned with fidelity. But fidelity not live issue in uk/us courts.

In trivial sense, judges make law. Though they say that what they do is just correct perception of true grounds of law which may not have been recognized before. Thus, invent v discover debate is essentially theoretical disagreement in disguise. Why, because would be easy if no theoretical disagreement, could just check what law was. So while invent/discover debate part of theoretical disagreement, but doesn't help us because real issue never rises to the surface.

THE PLAIN-FACT VIEW

"Plain fact view": Our jurisprudence has no plausible theory of theoretical disagreement in law. Most legal philosophers evade question, say that it is an illusion, and that lawyers and judges all agree on grounds of law.

Claim: law only matter of what legal institutions have decided in past. And when they have what looks like theoretical disagreements, they are really disagreeing about issues of morality and fidelity, about what it should be, not what it is.

Popular (conservative) view: Judges must follow law not improve it. If they don't, they are bad judges, usurpers, destroyers of democracy. Other (progressive) view: Judges should improve law, bad judge is the mechanical judge.

Note, academic, plain fact view, accepts that sometimes there is no law at all. This again gives rise to division of opinion. How should they fill gaps?

Jerome Frank draws radical conclusion from sophisticated version of plain-fact view: say that past institutional decision almost always vague of ambiguous or incomplete
- there is never really law on any topic or issue, only rhetoric judges use to dress up decisions actually dictated by ideological or class preference.

Not all accept plain fact view. Some that reject it indulge in unstructured "craft", mysteriously, romantic, essentially what judge o the day thinks better or worse. But not enough discipline in that view to call it any developed theory.

Later will show evidence why plain fact view is evasion rather than theory. But if correct, if judges. Lawyers, laymen, etc have no good answer to Question of how theoretical disagreement is possible and what it is about, we lack apparatus for intelligent criticism of what our judges do. Generally, governed do not understand courts nearly well enough.

A THRESHOLD OBJECTION pg 11

"This book is about theoretical disagreement in law" - pg 11 Trying to see what this is all about.

"I am concerned with issue of law, not reason judges may have for tempering their statements of what it is." It centers on judges in black robes.

Critics may say project is misapplied and incomplete and obscure. But, "theories that ignore structure of legal argument for supposedly larger questions of history and society are therefore perverse."

"This book take up the internal participants point o view, tries to grasp argumentative character of our legal practice. " "We will study formal legal argument from judge's point of view." Citizens and politicians also important, but judicial argument more explicit and more influential on legal discourse.

THE REAL WORLD

Let's see how PF thesis distorts legal practice by looking at actual cases.

Elmer's Case

Elmer murdered grandfather in hope of getting will he knew he left for him. Caught, put in jail. Residuary legatees were grandfathers daughters, they sued administrator of will, demanding that property go to them not Elmer. New York statutes of wills was silent. Judges felt compelled by law, must give to elmer, but disagreed about what law actually was, what statute required when properly read.

How possible? Like a poem, we agree on literal words, but not the second sense. So judges disagreed on impact of words of statue on legal rights of elmer, and daughters because disagreed about how to construct real statute.

Dissenting Judge Gray: Proposed literal reading, must look at statute contextindependent, voted for Elmer. Much to say for this, because we don't know if grandfather changes mind, can't substitute own opinion. Also, would be double punishment if Elmer, after jail, also looses inheritance.

Majority Judge Earl:

*"It is familiar canon that a thing which is within intention of makers of statute is as much within statute as if it were within the letter; and a thing in letter but not in intention, is not in the statute.". And here, with murderers, legislators had no intention either way. Earl meant that statue doesn't have any consequences the legislators would have rejected if they had contemplated it.

Also, must construct statute to make larger legal order coherent. Here - no one should profit from their own wrong.

*Comment: Most important point from case: dispute was not about whether follow law or adjust law. It was dispute about what the law was, about what the real statute really said.

The Snail Darter Case

Facts: Endangered Species act gave minister of interior special power to make sure nothing happens that endangers it. Conservationists convinced it to protect the snail darter, a fish of no importance, and stop a building project by TVA. Tenessee Valley authority argued that because project substantially underway, act doesn't apply and cited acts of Congress in support.

Chief Justice Warren Burger: found that dam must be halted. Said that when text is clear the Court has no right to refuse to apply it just because it believes the results silly. But rejected Earl's principle about way in which congressional intention is relevant. "Not for us to speculate on whether Congress would have altered its stance had specific situation been anticipated." (bit like Gray, but less rigid)

Justice Lewis Powell: Courts should accept an absurd result only if they find compelling evidence that it was intended. (a bit like Earl's, but substitutes common sense for principles of justice found elsewhere in law).

Comment: Again, they disagreed about the question of law; about how judges should decide what law is made by particular text enacted by Congress when congressmen had the kinds of beliefs and intentions both justices agreed they had in this instance.

McLoughlin

Previous cases deal with statute. Here, argues that judge should follow rules laid down in earlier cases.

Facts: Mother came to hospital to see injured husband and dead daughter and sued for emotional shock. Up to then, only get money if actually at scene.

We have relaxed (must give some weight to past decisions) and strict doctrine (depending on court, must fully abide) of precedent.

Trial judge: distinguished this case because not at scene. CA ruled in favor of trial judge, but different reason. Not because not reasonably foreseeable, but because of policy - widening the group would have bad consequences. HL: overturned decision. Not convinced by policy decisions.

Two lordships: Precedents can only be distinguished if the moral principles assumed in earlier cases for some reason did not apply to claimant in the same way. And not the case here, moral principle applies. Congestion in courts or rise in auto insurance are not justifications to refuse enforcing individual rights that have been recognised before.

Brown

Plessy v Ferguson, Supreme Court confirmed its not violation of equal protection of laws (14 Amendment) to have Blacks ride in back of bus.

Post WW2, issue came up again, felt more deeply wrong than ever. But states felt bound by Plessy. But, in Brown case, decided for black claimants.

Chief Justice Warren: Racially segregated schools could not be equal schools. Said that if present decision inconsistent with Plessy. But compromised on remedy, only said that schools should be desegregated with "all deliberate speed".

Comment: If Constitution, as many argued, did not as matter of law prohibit official racial segregation, then decision in Brown was illicit constitutional amendment, but little thought they were doing this. Thus, as other cases, it was a fight over question of law.

SEMANTIC THEORIES OF LAW

Propositions and Grounds of Law

Plain fact view: holds that law depends only on matters of plain historical fact, only sensible disagreement about law is empirical disagreement about what legal institutions have actually decided in past. And say that theoretical disagreement

about grounds of law must be pretense because very meaning of world law makes law depend on criteria.

Semantic theories of Law = Philosophers who insist all lawyers follow certain linguistic criteria for judging propositions of law, have produced theories identifying these criteria.

Legal Positivism

Semantic theories suppose that lawyers and judges actually agree about the grounds of law.

Positivist theories, support plain fact view, that genuine disagreement about what law is must be empirical disagreement about the history of legal institutions. Positivist theories differ about which historical facts are crucial.

John Austin: Defined sovereign as some person whose commands are habitually obeyed and who is not in habit of obeying anyone else. And main idea: law is matter of historical decisions by people in positions of political power, has never wholly lost its grip on jurisprudence.

HLA Hart picked up Austin account, rejected habitual obedience theory, said that true grounds of law lie in acceptance by community as whole of Fundamental master rule (ror) that assigns to particular people or grounds the authority to make law. E.g for Austin 55 mph speed limit true because legislators who enacted that rule happen to be in control there, for Hart it is true because people of California have accepted and continue to accept, scheme of authority deployed in state and national constitutions.

Critique of Hart: Nazis obeyed Hitler. Does that mean they accepted a rule of recog entitling him to make law? If yes, Hart and Austin difference elusive. If no, acceptance requires more than mere obedience, thus, suggests that there was NO law in Nazi Germany.

Other Semantic Theories

Rival of positivist, natural law. But all semantic have this in common: they argue that lawyers follow criteria that are not entirely factual, but at least to some extent moral, for deciding which propositions of law are true. At extreme, justice = law. But obvious not true (e.g., many people think tax system unjust but still law).

Second rival to positivism is legal realism. They argue linguistic rules lawyers follow make propositions of law instrumental and predictive. Exact meaning of law depends on context. "Law is nothing more than what judge had for breakfast."

Defending Positivism

Legal positivism: Genuine argument about law must be empirical rather than theoretical.

"Crossed-fingers defense": Quick answer to why judges and lawyers pretend to theoretical disagreement, because people believe there is always law for everything and judges should follow it. Essentially, this view says that lawyers and judges are systematically conniving to keep truth from people. Bad view because:

1. Wouldn't it just be easier to show that there is no law? And if so easily exposed, why bother with the charade?

2. No evidence in our sample cases that lawyers or judges actually believed what this defense attributes to them. Gray or Burger not bent on reform, because each said what he took to be the law, interpreted in a certain way.

3. In McLoughlin it was disagreement about what law was, not about what it should be.

"Borderline-case defences" Second argument: linguistic limitation that becomes exposed in hard cases: lawyers and judges in sample cases only THOUGHT they were disagreeing about law but self description shouldn't be taken at face value. -idea of using words that are not precise or exact, they permit penumbral cases. This explains why they disagree in hard cases like present sample cases. Treats the main question as a question of repair, even if judges themselves might not have conceived it that way.

But: if argument true, why would people argue so long, they understand that diff people have diff idea of what a house is.

Borderline defense ignores distinction between borderline cases and testing or pivotal cases.

Difference like when two people argue if photography is form or branch of art. At end of day both understand its arbitrary. (this is like borderline). BUT, different type of argument is that two camps have a completely different understanding of what art forms are (this is not borderline, these are fundamental differences). Like this - also judges reasoning.

Judges in all sample cases disagreed on what makes proposition of law true not just at margin but in core. Not about drawing an arbitrary line.

The Real Argument for Semantic Theories

Semantic philosophers suffer from same block: If two lawyers are actually following different rules in using word law, each must mean something different from the other when he says what the law is. They are talking past one another. Like when talking about banks one means "riverbanks" and the other means "money banks". And even when agree they are pointless: "many banks in north america." --- These bizarre conclusion cannot be correct.

Biggest problem that wreaks havoc is idea that unless judges share factual criteria about grounds of law there can be no significant thought or debate about what law is.

It is a philosophical argument. Must confront this argument philosophically. (pg 44)

Chapter TWO: INTERPETATIVE CONCEPTS

THE SEMANTIC STING

We have following dilemma: In spite of first appearances, lawyers all do accept same criteria for deciding when claim about law is true or there can be no genuine agreement or disagreement about law at ALL, but only idiocy of people thinking they disagree

because they attach different meanings to same sound (because leg two crazy, legal philosophers embrace first and try to identify the hidden grounds that MUST be there)

Unfortunately, this picture of what makes disagreement possible fits badly with kinds of disagreements lawyers actually have. These losers try to explain away the theoretical disagreement. They say lawyers and judges are only pretending or that they disagree only because case falls in some gray area.

AN IMAGINARY EXAMPLE

The Interpretive Attitude

Imagine community where members follow set of rules which they call rules of courtesy, e.g. Take off your hat for nobility. Everyone develops complex interpretive attitude toward rules

1. they have value

2. requirements of courtesy, behavior it calls for etc, not necessarily what they have always been taken to be but are instead sensitive to its point.

1 + 2 are independent of one another. But, if accept both, like in story, value and content become intertwined.

How Courtesy Changes

When full interpretive attitude develops, assumed point acquires critical power and people begin to demand under title of courtesy, forms of deference previously unknown or to spurn or refuse forms previously honored, with no sense of rebellion, claiming that true respect is better served by what they do than by what others did. So change happens, through each interpretative step.

Views about proper grounds of respect will change from rank to age or gender or some other property. Ideas about respect may change, internal to external showing of it. Or opinions change about whether respect has any value when it is directed to groups or for natural properties rather than individuals.

A FIRST LOOK AT INTERPRETATION

Beyond birds eye view of how tradition of courtesy changes, lets look closer by noticing kinds of judgments and decisions and arguments that produce each individual's response to tradition and over long periods produce large changes we first noticed.

In this chapter: Dworkin offers theoretical account particularly designed to explain interpreting social practices and structures like courtesy, and defends that account against some Fundamental and apparently powerful objections. "The analysis of interpretation I construct is foundation of book" (pg 50)

People interpret in many different contexts, lets see how they differ: conversation, art, science. What we try to do, interpretation of social practice, is like art, try to interpret something created by people as entity distinct from them, rather than what people say. Note, in contrast to science and speech, interpretation of social practices and art is essentially concerned with purposes rather than mere causes

One solution to replace metaphor that social practices speak to us is creative interpretation - we listen to the human authors not practices themselves. Dworkin argues that creative interpretation is not conversational but constructive. It is a matter "of interaction between purpose and object."

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