Jurisprudence
Tutorial 7
Dworkin

Remember that so far we have been studying attempts to model our legal system. It is like making a model of the weather or solar system. The philosophers do not have the answers, but each tries to come up with the best fit.

We saw that Austin's model is that law is the command of a sovereign backed by a sanction. Hart criticises Austin saying that this model compares government to an armed gunman. Instead, Hart posits that law is made up of primary and secondary rules. Both Austin and Hart, being positivists, argue that morality is completely separate from law.

In addition, Hart speaks about law as having gaps or grey areas. These are penumbras. (When you look at a shadow, the umbra is the dense part in the middle, and the penumbra is the lighter part on the edges.) Remember the exercise we did on the first day of class: no vehicles allowed in the park? This actually an example from Hart's work. Because the law does not state expressly whether bicycles are allowed in the park, judges must use their discretion to fill the gap.

Dworkin believes that Hart's model is flawed. He says that judges do not decide based on rules alone but also on non-rule standards. He argues that there are no gaps in the law, and that any model of adjudication must take into account principles and policies.

Some definitions from Dworkin:

Strong discretion: A major says to his sergeant, "Choose five men and meet me at HQ in an hour." The sergeant has a strong discretion. He can choose any five men without being criticised.

Weak discretion: A major says to his sergeant, "Choose your five best men and meet me at HQ in an hour." The sergeant has a weak discretion. He must choose men which meet the criterion. If he picks last week's raw recruit, the major will have his hide.

Principles: These are rights, standards of justice and morality.

Policies: These are goals for improving some social, political or economic aspect of the society.

Law as Integrity
Dworkin sees judges as having a weak discretion. He describes them as being authors in the great chain novel of common law.

A chain novel is one where each author writes a chapter. Thus, each author must be able to interpret and understand the work that came before, and add to it so that at the end, the work is a cohesive whole.

Similarly, any time a judge gives a ruling, what he says must make sense in the context of the body of work which is common law. Think about it: apart from Lord Denning (!) have you ever come across a judgment where the decision was so far out there that you gasped in amazement? Or have the decisions all fit with what you would expect. Even Lord Denning attempted to find justification for his decisions in precedent. Consider the following cases:

Donoghue v Stevenson [1932] UKHL 100. This case established the modern principles of negligence. A woman ordered a gingerbeer at a cafe and, after she had drunk some of it found a snail in the bottle. She sued the manufacturer. Previously, there had been no duty of care owed by the manufacturer to the consumer. The House of Lords held that there was indeed such a duty.

Hart argues that there was no law governing the situation and that the judges were legislating. But wouldn't this have been retrospective legislation? Imagine if I told you right now that shoes were illegal and you were to be tossed into jail for wearing them. Would that be fair to you given that shoes were perfectly legal when you put them on this morning?

Instead, Dworkin interprets this case as one where the Court finds an existing principle (that people have a duty not to harm others) and applying it to a new situation. In other words, it is nothing new, and a wise manufacturer could have seen it coming.

McLoughlin v O'Brian [1983] 1 AC 410 was a case where a mother got word that her family had been involved in a horrendous accident. She arrived at the hospital, two hours after the accident, to find one of her children dead and her two other children and husband in pain and covered in blood and gore. The Court held that she could receive compensation for nervous shock. Previously, plaintiffs could only receive compensation if they were actually at the scene of the accident. The Court extended the principle. Again, it is arguable that there was no gap in the law -- someone could have seen it coming.

Finally, there is the case of Riggs v Palmer (1889). In this case, a loving grandfather left the bulk of his estate to his grandson. The grandson killed him so that his inheritance would be secured. The testator's two daughters sued, and the Court's refused to allow the grandson to profit from his crime.

There was no law under which the Court ruled. However, they felt that all tenets of principle would be violated if the grandson were allowed to inherit. They said that the legislature would have certainly written this into the law if they had ever considered such a contingency.

What power did the Court have to make this decision? Remember that there is no absolute rule that a testator's wishes must be followed. For example, it is not possible to disinherit one's spouse -- no matter what the testator puts in the will, a spouse is entitled to take 1/4 to 1/2 of the estate. In addition, before any legacies are disbursed, all debts must be paid. Finally, a will can be struck down on grounds that it was written under undue influence (eg, an elderly person falls prey to the manipulations of a minister, doctor, housekeeper), fraud or mental incompetence. Thus the Court was not actually going against the law -- they were simply adding a new category.

Make sure you understand this case -- sometimes on exams you are asked to discuss it from the perspective of both Dworkin and legal realism.

Dworkin puts forward his idea of an ideal judge, Hercules, who must interpret the law which came before him, in order to sensibly make decisions in the cases in front of him. He must look for the necessary principles. How does the judge decide whether two principles are alike? How does anyone decide whether two things are alike? (Sing that song from Sesame Street: "Three of these things belong together...")

To draw from a personal example: Once when my father lived in Canada, he received an invitation which had been sent to all persons in the Greater Toronto area with the name Peter Anthony Robinson. Apparently the invitation had been sent to over fifty men. Without knowing more, would you say that these men had anything in common? What if they had all been born in September? What if they were all bankers? When you are checking to see if there is similarity, what do you consider to be very relevant and what do you consider to be irrelevant?

Imagine that Hercules is given two lines of cases to examine as precedents, and he must decide which line to follow. He must extracts the principles from the current case and from all the precedents. If the guiding principle is obvious, then it is easy to make his decision. What does he do if there are two or more conflicting principles which are of equal weight? In that case, so Dworkin says, he must make his decision based on policy.

Note that Dworkin is not saying that Hercules must be political. He does this only as a last resort. It is a way of making a final decision. Take for example the Speluncean Explorers case. There was a judge who could not make up his mind. On the one hand, he thought that the four had committed murder, on the other he thought they should be pardoned. Both principles weighed so strongly with him that he finally refused to make any decision at all! Dworkin is merely giving him a basis for deciding between the two choices. In fact, consider the article "Further Proceedings of the Speluncean Explorers". In that article, the Chief Executive supposedly referred the case to three professors to decide whether clemency should be granted. Professor Thri represents a Dworkin position. He shows how both sides are convincing but then makes his decision that the death sentence be commuted to community service at a hospital, saving lives.

The Caribbean
Does Dworkin’s philosophy have any relevance to our law today? Is it a good model of how law operates in Caribbean society? Are there any similarities between Boyce and Joseph and Riggs v Palmer? Would the ordinary legal observer have been able to predict the Boyce and Joseph decision?

Some links: