The interpretive theory of Dworkin challenges Harts positivism. He found the law more complicated than what Hart depicted as a system of rules. This descriptive interpretation of Hart describes a legal system which consists of only rules that have a characteristic of having gaps in them. These gaps represent laws that cannot account for every given situation in society and this where judges used their discretion to fill these gaps like legislative bodies. If a rule or law does not clearly apply to a given situation then this is a gap. This in Dworkins opinion, by leading Judges into the legislative arena that they ought not hold a role as unelected bodies; where the judiciary and legislative bodies are suppose to be separate. further this would make judgements of courts laws and thus lead to punishments of individuals for a duty that they did not previously have under the law. The common law made would thus act retroactively.
Dworkin agreed that while there are rules, there are more standards or tools that Judges use such as principles and policies in their decision making enabling them to stay within the parameters of their adjudicative role. Principles are broad points dealing with rights that are recognized by courts that point to one direction in analysis but do not necessarily provide a concrete answer. Policies on the other hand are direction pointing as well that a judge ought to consider but only point to a goal to be reached yet again do not point to how to get there. Hart himself said that he did not discuss these non-conclusive principles. But Dworkin went even further to point out that he believed that the legal system is gapless and judges we always constrained by existing law. The problem with Dworkins analysis is that there is no clear direction given, it would seem, between how Judges may use a principle such as "no man shall profit from their wrong", that how it is to apply and in what cases it applies as it is to broad and unclear as to what is a wrong and what is considered as profit. The other standard judges use to interpret legislation are policies or goals of the legislation This is aimed at changing some condition in society such as improving women's rights. Judges must interpret legislation or laws in light of these standards to uphold existing legislation or changing it. We might think that certain principles have been entrenched in constitutional law such as every person has a freedom of expression and it is up to the Court to interpret this in light of different facts such as hate speech. But the question remains for Dworkin that while some of these principles may exist in constitutional rights or policy goals may be expressed in legislative papers it does mean that their exists gaps in the law as application of principles and policies does ultimately give Judges legislative powers build with in his interpretive theory. If a judgment is justified through argument's of the highest court in the land it is next to impossible to have that same court overturn it soon after and if the legislative body does not act to change it then the interpretation of the law become law allowing the legislative body a way out saying its the courts who decided if the public who elected them disagree. Hence we have the judiciary being legislatures or judicial activists without the benefit of public scrutiny with a complacent legislative governing body. This can be seen as a very big gap in the law.
Discretion:
Much of the debate among scholars surrounds the use of the word discretion involved in the Hart Dworkin debate. Michael Freeman seems to believe that Judges only 'have choices within there judgements or how they rule and this must be backed up by there legal arguments for it. What he is saying is that discretion does not mean that they can do what they want but when they choose to decide a certain way that in their final legal ruling they must justify their decisions in legal argument or write their decisions backing up their reasoning. So, practically speaking judges are suppose to have made it clear why they ruled the way they did and back it up with legal reasoning that is based on both common law rules and legislation.
This line of description made by Freeman was a direct attack made on another writer named Greenawalt. The argument presented by Greenawalt is that 'Dworkins denial of discretion itself is either wrong or misleading'. According to Greenawalt 'if we look at different opinions of judges, briefs and critical legal argument they all do not support the notion that discretion means a judge can do what they want. Thus in essence Greenawalt is saying that Dworkin is correct in saying that Judges cannot do just what they want as is Freeman and it has nothing to do with an idea that discretion means that judges can do what they want. So, Freemans attack on Greenawalt is not founded and it seems to be the fault of how Greenawalt is read when he describes his view on discretion rather than any disagreement as to whether Judges write out their rulings clearly in their judgements.
Hart had addressed the issue of discretion but as Dworkin noted and later Hart admitted, that it was not enough. Dworkin in pointing out that standards judges use to adjudicate cases was not supported enough in Harts theory, may have went too far in criticizing Harts entire theory. For while Hart admitted that he did not address the role principles make this itself does not diminish his positivist theory to a point where Dworkin actually denies the importance of the rule of recognition's importance and thus Harts contributions. For Dworkin himself is guilty of making too much of open ended principles and standards because this leaves the door open for judicial activism; the vary thing he accuses Hart's theory of creating. Judges by interpreting principles and standards allows them to create this idea of what they 'ought' to be and just like values such as justice, fairness and integrity; that Dworkin himself incorporated in his theory seemingly because he caught himself in supporting this same paradox.
It is easy to say that we have the best' fit' for a given application of law when we appeal to open-ended principles. This maybe the sentence that Hart 'ought' to have given in response to Dworkin's criticisms. The idea purported by Dworkin was that judges had to appeal to old understanding of values and principles actually leaves the door open again for moralities necessity in the law. To think that politicians or judges are more morally minded that society is a false hood by just masking the word political morality with societal morality. What is the difference if these very ideas are molded by politically motivated individuals? Are there moral principles not as 'skewed' to support morals through interpretation of what justice, fairness and integrity mean in a given situation that ultimately weaken rights of individuals creating the vary authoritarian government that positum attempts to prevent. Joseph Raz seems to believe that Justice and Fairness concepts can not full explain law either, finding such a description more analogous toa type of social morality rather than a political morality.
How does a judge use this interpretive theory:
There is a set of examples on how the arguments presented in court work to influence the judge's decision making or how two opposing arguments that are presented in court ought to be assessed by the judge. The entirety of the arguments may encompass different issues but each issue is to be broken down and examined by the judge in a certain way. (example here) But what Dworkin tends to do is justify a judges ruling where they may be no reason to consider the difficult case. The Court in other words must not try to fit a hard case with the existing law but exclude one from even being permitted without trying to reinterpret the law so that it does fit. In other words if a given situation occurs and an argument either appeals to 1: something not in statue or something not in case law 2: something against statue or case law or 3: a policy where the judges become legislators then the argument cannot succeed according to Dworkin. For an argument to succeed it must then appeal to a legal principle, statue or a precedent in order to succeed because this is the only way that it can fit. The problem is in the interpretation of a principle that would allow for a judge to rule in favor of an argument based on an ambiguous principle. The ambiguity of a legal principle is where there is a problem in Dworkin's theory because it seems that this would again allow a judge to be a legislator because they found a way to rule in a certain case that would fit with their personal outlook while hiding under claim that they appealed to a principle that before this case was never interpreted or intended to be interpreted in this manner. This would support Hart's contention that a judge has discretion where the law is not clear in the 'penumbra' of certain Hard case's where the law is not clear. It would seem that Dworkin relies to heavily on a principle being clear enough or supportive enough to 'fit' into every case. Thus, where principles may be used is not clear because he is not clear how principles in general play a concrete role but more like a deciding vote. It looks as if they should be considered and then accepted when they are based on one advocates interpretation of a conception of a principle's application if a judge agrees. Or if a judges agrees with an interpretation of a principle which may be an accepted concept used in the past but does not exactly 'fit' with the given facts of a certain case. The concept of integrity is applied by judges so that they are consistent with the use of past principles as a value that the courts must uphold but it is unclear as to how this works if they simple use their judicial discretion on how it ought to fit in a particular case thus sending us back to Hart. In other words integrity as an associative principle is able to be manipulated just as much as in hard cases to the extent that it as a principle can be just as good as Harts description of judicial discretion.
Interpretation itself becomes a dangerous weapon in the hands of a judicially active judge or court. How can we restrain government as Dworkin advocates if new interpretations are agreed with by the judiciary. According to Dworkin governments are to be held accountable by the law. If this is the case a court can practically allow controversial decisions of the government just by an appeal to a broad principle. This would support Dworkin's contention that the relationship between morality and law is interpretive. In this sense we consider the potential of courts looking at past political decisions together with a new coercive intention of a government. It is possible that a court will claim find a right decision that allows individual equality under the law to be trumped regardless of past political decisions and thus not find in favor of people being treated with equality and respect. If this happens where a government is found to be too coercive in this sense that they override equality then Dworkin may just cleverly say that the politics of that government is not developed. There maybe to much of an attempt, by Dworkin, to find a proper definition of the law in his theory of interpretation that it give's the reader a sense of how the court can never go wrong with the law. It may be because Dworkin is trying to protect his theory from being guilty of the very judicial activism that he criticizes Hart for.
Comentarios