School
Simon Fraser UniversityDepartment
CriminologyCourse Code
CRIM 338Professor
Iryna PonomarenkoLecture
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CRIM 316 - Lecture 6 - Interpretivism & Judicial Review
Ronald Dworkin (1931-2013)
● Theory of law - major points
○ Objectivity
■ There are right answers to legal problems
○ Principles
■ Law is not just rules but contains principles
○ Institutional support
■ Judges cannot apply any principles, they apply those principles which
have institutional support
○ Rights
■ Rights are trumps - override consequentialist moral demands
3 Main Kinds of Disagreement about Law
● Factual
● Legal
● Morality (often called question of fidelity)
Legal Positivism & Discretion Thesis
● Legal disagreement
○ How do judges decide hard cases wherein no legal norm controls case or
alternatively, there is considerable disagreement as to proper interpretation of
legal norms?
● Answer from legal positivism
○ Judges decide hard cases by making new law which is then applied
retrospectively to parties in case
Dworkin on Hart’s Model of Rules
● Dworkin identifies these 3 propositions as forming core of legal positivist position
○ Law of community is set of special rules used to determine what kind of behavior
punished/coerced by state
○ Set of rule exhaustive of law
■ Case not clearly covered by them must be decided by judge/official
exercising discretion, requiring them to reach beyond standards
established by law itself
○ When no clear & valid legal rule covers case & judge must exercise his
discretion, he is not enforcing legal right/legal obligation
Dworkin Criticized Hart’s Theory on Following Grounds
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● No gaps in law, if existing rule does not prohibit conduct it is lawful
● Judges do not fill gaps
○ Can only change existing rules/principles
● If judges made law in fashion Hart suggested they would be acting as deputy legislators
● If judge makes new law & applies it retroactively to litigation being decided, losing party
will be punished not b/c violated some dury, but rather new duty created after event
● If there was no right answer to case it would not be said that anyone had right to
outcome
Easy vs Hard Cases
● Easy cases - straightforward cases
● Hard cases - cases dealing w/ fundamental propositions of law, upon which lawyers
disagree - no determinable rule to resolve them
○ Outcome differs depends on who is assigned task
● Problem - what ought judges do when rules “run out”? How to decide “hard cases”?
● Dworkin - “judges should decide hard cases by interpreting the political structure of their
community in the following, perhaps special way: by trying to find the best justification
they can find, in principles of political morality, for the structure as a whole, from the
most profound constitutional rules and arrangements to the details of, for example, the
private law or tort or contract”
○ Criteria of justification
Hercules
● Dworkin uses number of metaphors in works to explain how there is right legal answer to
all legal problems
● According to Dworkin, hypothetical best legal decision arrived by hypothetical best
possible judge Hercules, a judge of “superhuman skill, learning, patience and acumen”
Case Study in Legal Reasoning using Dworkin’s Theory
● In landmark decision, SCC unanimously struck down criminal prohibition against
physician assisted death in Carter v Canada
● In Carter, Court held that ban on physician assisted death violates rights to life, liberty,
security of the person contrary to principles of fundamental justice under s.7 of Charter &
could not be justified as reasonable limit under s.1
○ However, Court declined to deal w/ claim that ban on PAD also violates equality
rights contrary to s.15(1) of Charter
Rules vs Principles vs Policies
● Rules
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