CRIM 338 Lecture 6: CRIM 338 -6- 2.9.19
12 Feb 2019
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Document Summary
Crim 316 - lecture 6 - interpretivism & judicial review. There are right answers to legal problems. Law is not just rules but contains principles. Judges cannot apply any principles, they apply those principles which have institutional support. Rights are trumps - override consequentialist moral demands. Judges decide hard cases by making new law which is then applied retrospectively to parties in case. 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. 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. No gaps in law, if existing rule does not prohibit conduct it is lawful.
