Criticism of Dworkin

Notary public solicitors in London

  1. Not really necessary to see the law in its best light – judges & theorists shouldn’t look at law through rose tinted spectacles, making it the best it can be – should instead describe it as it is
  • Dworkin: there’s no simple description of law as it is – describing it in that way necessarily involves an interpretative process which requires determining what the best interpretation of officials past actions is   law “as it is” is just a collection of past official decisions (i.e. pre-interpretive data) & collectively they can’t answer a legal question until some order is imposed on them; i.e. through “constructive interpretation”
  1. Emphasises the possibility of revision too much/doesn’t provide coherent theory for “easy cases” (b/c still says interpretative element exists)
  • The theory’s strength of being able to account for the way law is regularly subjected to change & re-characterization is also its weakness D argues that, even in situations where there seems to be a recent authoritative legal source directly on point, there’s still a need for interpretation since a skilled advocate could argue, whilst looking at past legal decisions, that appellate court’s decision was mistaken or too broad.
  • Emphasizes the possibility of revision too much & the likelihood of settlement too little.It celebrates the notion of great individual judge rethinking whole area of law, thereby deflecting attention from important areas of consensus & shared understandings. The whole picture may actually be too grandiose to cope w/day to day choices which real judges have to make

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Dworkin’s ‘Law as Interpretive Concept’

  • Law is an interpretative concept acc to conception of “law as integrity”, its content depends on more refined interpretations of the same legal practice it has begun to interpret. – Check out SEO Glasgow
  • Unlike positivism, Dworkin’s theory claims to be able to account for “disagreements in the law” – positivists claimed to argue that such disagreements are actually about what the law ought to be but this isn’t satisfactory. Theoretical disagreements frequently occur in legal practice & academia, and claiming their non existence would equate to calling practice in which legal scholars engage incoherent.
  • Judges should decide what the law is by interpreting the practice of other judgeslaw as integrity unites jurisprudence & adjudication in this way.
  1. Community of courtesy example
  • Members follow a set of rules; i.e. rules of courtesy (may require peasants to take their hats off to nobility). For time being, rules are there & not questioned but then all this changes & people develop an interpretative attitude towards them which has 2 components:
  1. assumption that practice of courtesy has value; i.e. serves some purpose
  2. assumption that requirements of courtesy are sensitive to the purpose, so that rules must be understood, applied or modified acc. w/it
  • Once that interpretative attitude develops, institution of courtesy ceases to be mechanical & people try to impose a meaning on it – see it in best light – and restructure it in light of that meaning.
  • Interpretation of social practice is like creative interpretation – it’s constructive b/c interpretation of works & social practices is essentially concerned w/purpose, not cause, but purposes at play are those of the interpreter constructive interpretation is a matter of imposing purpose on an object or practice in order to make it the best example of the form or genre to which it’s taken to belong.
  • In making the practice the best it can be, criteria are “fit” & “moral value/justification”

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Disagreements in the law

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Law is a special phenomenon which has a special structure.

    • Legal practice is argumentative – it consists largely of participants advancing various claims about what law demands & defending them by offering reasons. To understand law in this way, one must appreciate that for most part it’s a practice of argumentation.
  • Distinguish
  1. Propositions of law – statement about content of the law in particular legal system (e.g. breach of contract by A leads to B obtaining damages)
  • May be true or false
  • They are true by virtue of grounds of law
  1. Grounds of law
  • 2 types of legal disagreements
  1. Empirical – whether grounds of law have in fact obtained
  2. Theoretical – conflicting claims about what the grounds of law are
  • Arguesjurisprudence hasno plausible theory of theoretical disagreementsb/c it’s committed to “plain fact” view of law:
  1. Grounds of law in any community are fixed by consensus amongst legal officials
  2. The only types of facts that may be grounds of law are plain historical ones
  • The plain fact view can’t account for possibDisagreements in the law
  • ility of theoretical disagreements in the law instead, legal interpretation is “constructive” = the process of “imposing a purpose on an object or practice in order to make it the best possible example of the form or genre to which it is taken to belong”.
  • A purpose makes an object the best it can be when it both “fits” & “justifies” the object better than a rival one
  • A purpose “fits” the object to the extent that it recommends the object exists or that it has the properties it has
  • A purpose is “justified” to the extent that it’s a purpose worth pursuing
  • SO to determine what the grounds of law are interpreter must engage in constructive interpretation; i.e. impute a purpose to particular practice that presents it in its best light (one that best fits & morally justifies it) + use this point to ascertain the grounds of law for particular system.

 

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African laws

Newspapers are dying but we live in a golden age of journalism. Writers of every political shade such as Boris Johnson, Matthew Parris, David Aaronovitch, Douglas Murray, Nick Cohen, George Monbiot and Polly Toynbee are daily turning out copy that is by turns hilarious, compassionate, persuasive, acerbic, astute, angry and exasperating. And you could probably add another twenty-five names at least to that list: journalists that you would want to read no matter what they were writing about.

Such Premier League journalists are for everyone. More specialist tastes are catered for ever more often on the large numbers of specialist blogs.

Many of these are political. Iain Dale, for example is required reading for Conservatives and other parties have their own gurus and soothsayers.

The climate change debate has been a particularly fruitful area for bloggers. The magisterially sceptical US site Watts Up With Thatand its more rumbustious British equivalent, Bishop Hill, compete with extraordinary vigour against the equally robust Real Climate, while the indefatigable Judith Curry is a rare and very perceptive female voice amongst the bearded weathermen who tend to enjoy the mathematical minutiae every bit as much as the conspiracy theories and email skulduggery.

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