Cotterrell Politics of Jurisprudence, Ch.6

  • Dworkin’s view is calculated to allow judges to protect the rights of individuals (which he sas are incorporated in rights) against majoritarian tranny.
  • Says Dworkin is right that there is no room in common law for strong judicial discretion as the court’s purpose may be creative but is not legislative. Wrong: If two competing principles are at work then the judge can still decide between them in any way he likes and where the principles are broad then the discretion/ability to make law will be broad too.
  • Dworkin explains constructive interpretation by analogy to a writer continuing a story that was started by earlier writers. The style and storyline must fit, but within the possible options that fit he must select the best option.
  • Dworkin argues that “community” is the basis of law. However Dworkin doesn’t say what community actually is or why law should be seen as an expression of community values (especially since judges are NOT delegates of majority will- in fact to suggest this would be contrary to what Dworkin himself believes). Dworkin only uses an internal perspective which prevents us from answering these questions.
  • Dworkin says that because the law is based in community, all participants of the community who accept its basic values of integrity etc are as entitled to interpret the law as judges. Therefore people are entitled to act according to his own considered and reasonable view of the law, since community members are duty bound to obey the true interpretation of the law, not one person’s or one judge’s interpretation of it. This is the basis for civil disobedience. This is retarded. Seriously retarded. (1) Who will determine anarchy? Not the courts since clearly Dworkin sees them as having no more right to interpret the law than anyone else, such as the person who refuses to comply with their interpretation. (2) This would lead to anarchy- nobody would follow laws which they considered not to have “integrity”. (3) IT DOESN’T REALLY HAPPEN and is therefore invalid as a description of our system- people DO follow court orders even when they think the court has got it wrong. Submitting to court decisions is not voluntary.

Book review of Taking Rights Seriously; Haworth:

  • Dworkin says rights are legal trumps. This is in contrast to utilitarianism and he sees rights as a way of restraining the state. This is because rights guarantee integrity i.e. they allow a person to be treated with equal respect concern as anyone else. However Dworkin is wrong to say that this distinguishes him from the positivists as Hart himself does not purport to be utilitarian. Positivism does not say that rights should not be enshrined in law, or even that secondary rules shouldn’t enshrine them: he merely says that this doesn’t happen automatically (arguably Hart is coming from the perspective of saying what law is, whereas Dworkin is saying what law ought to be in order to allow rights to be supreme.)
  • Equal right to respect and concern does not fulfil the idea that taking rights seriously is contrasted with utilitarianism. Utilitarianism may view welfare in the long run as being maximised by observing the right to equal concern and respect. Utilitarianism makes calculations based on the suffering of each individual and so it needs to do what Dworkin is saying. Really? What about where we are prepared to make a minority suffer a certain amount in order to greatly improve the welfare of the majority, e.g. Heathrow 3rd Haworth is wrong to claim that Dworkin’s position and utilitarianism are the same.