Contemporary Jurisprudence: Make Up Assignment for Seminar 2
My group presented the text of Dworkin:
Dworkin tries to find a middle ground between Hart and Fullers’ theories, building his jurisprudence on an attack of Hart’s claim that the law consists only of rules. Like Fuller, Dworkin thinks that the law is inherently interpretative. Dworkin contends that in reality the materials available to judges are wider than only rules, and that in practice judges use principles and background justifications as well as rules to decide hard cases. Dworkin argues that by using the full range of legal materials available to judges, they will not have to rely on discretion and instead will be able to solve hard cases objectively in a principled way according …show more content…
Although deciding cases according to principle may involve constructive interpretation of legal materials, the decisions reached in this way will not be subjective, but will be objectively grounded in existing law.
b. Judges who reason this way will be acting according to their institutional responsibilities and therefore the law will have maximum integrity:
i. It will be as if the judge is writing a chapter in a chain novel: each new rule is necessarily shaped and changed by what has gone before it.
Law and Morality:
Dworkin disagrees with Hart’s separation of laws and morality, but he says that following rules is an important principle itself and is backed by an institutional right to have one’s case decided by a court acting on established rules.
• This means that it is illegitimate for judges to rely on their own subjective preferences or moral views or advance their own idea of the social good.
• Instead they must rely on the background moral principles that are already embedded in the full set of legal materials to hand.
Right Answer Thesis:
Dworkin also maintains that there is a ‘right answer’ for every hard case, even when there are no rules to cover it.
He says that the right answer is the only answer that can be reached by correct legal reasoning, which he argues consists of an analysis …show more content…
Because of lawyers important role in society it would not be right for lawyers to use a different or internal moral basis if it conflicts with society morals which is why the code is present in the first place. Obviously there are grey areas and parts of the law that these codes do not cover when a lawyer may have to use their own moral judgment however, they should align it to be in-keeping with society and ethical morals of the justice system.
Is the debate about positivism and natural law of any relevance today?
I think the debate about positivism and natural law is still of relevance today. Even though a positivist view of law is more in line with the trend in many developed countries. Natural law is the basis still of a lot of developing countries. The debate most importantly means an understanding of other cultures and their laws.
The justice system in no country is perfect yet. Therefore, jurisprudence in all areas of law is relevant to further understand law and different legal systems and how it should be used at all levels from judges, lawyers, laymen, citizens
My group presented the text of Dworkin:
Dworkin tries to find a middle ground between Hart and Fullers’ theories, building his jurisprudence on an attack of Hart’s claim that the law consists only of rules. Like Fuller, Dworkin thinks that the law is inherently interpretative. Dworkin contends that in reality the materials available to judges are wider than only rules, and that in practice judges use principles and background justifications as well as rules to decide hard cases. Dworkin argues that by using the full range of legal materials available to judges, they will not have to rely on discretion and instead will be able to solve hard cases objectively in a principled way according …show more content…
Although deciding cases according to principle may involve constructive interpretation of legal materials, the decisions reached in this way will not be subjective, but will be objectively grounded in existing law.
b. Judges who reason this way will be acting according to their institutional responsibilities and therefore the law will have maximum integrity:
i. It will be as if the judge is writing a chapter in a chain novel: each new rule is necessarily shaped and changed by what has gone before it.
Law and Morality:
Dworkin disagrees with Hart’s separation of laws and morality, but he says that following rules is an important principle itself and is backed by an institutional right to have one’s case decided by a court acting on established rules.
• This means that it is illegitimate for judges to rely on their own subjective preferences or moral views or advance their own idea of the social good.
• Instead they must rely on the background moral principles that are already embedded in the full set of legal materials to hand.
Right Answer Thesis:
Dworkin also maintains that there is a ‘right answer’ for every hard case, even when there are no rules to cover it.
He says that the right answer is the only answer that can be reached by correct legal reasoning, which he argues consists of an analysis …show more content…
Because of lawyers important role in society it would not be right for lawyers to use a different or internal moral basis if it conflicts with society morals which is why the code is present in the first place. Obviously there are grey areas and parts of the law that these codes do not cover when a lawyer may have to use their own moral judgment however, they should align it to be in-keeping with society and ethical morals of the justice system.
Is the debate about positivism and natural law of any relevance today?
I think the debate about positivism and natural law is still of relevance today. Even though a positivist view of law is more in line with the trend in many developed countries. Natural law is the basis still of a lot of developing countries. The debate most importantly means an understanding of other cultures and their laws.
The justice system in no country is perfect yet. Therefore, jurisprudence in all areas of law is relevant to further understand law and different legal systems and how it should be used at all levels from judges, lawyers, laymen, citizens