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Lecture 6

CRIM 338 Lecture 6: CRIM 338 -6- 2.9.19Premium

5 pages99 viewsSpring 2019

Department
Criminology
Course Code
CRIM 338
Professor
Iryna Ponomarenko
Lecture
6

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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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