lecture 12 - Dworkin’s Critique of Positivism
Some biographical background:
- American legal and political philosopher.
- Lived between 1931 and 2013.
- Studied at Harvard and Oxford. Later served as Clerk to Judge Learned Hand and worked as an
Associate at Sullivan and Cromwell.
- Taught at Yale (1962-1968), held the Chair Professor of Jurisprudence at Oxford (1969-1998).
- Following that held professorships at both UCL and NYU.
A comment on his method
- Aim to provide an account of law that would explain why (that would vindicate and make sense of
the common assumption that) law and legal obligation entitle the state to punish and coerce us; that
a breach of law is a ground for justified coercion.
- Quotation: ‘Day in and day out we send people to jail, or take money away from them, or make them
do things they do not want to do, under coercion of force, and we justify all of this by speaking of
such persons as having broken the law or having failed to meet their legal obligations, or having
interfered with other people’s legal rights. … [W]e are not able to give a satisfactory account of what
that means, or why that entitles the state to punish or coerce him. … [U]ntil we can identify the
principles we are following we cannot be sure that they are sufficient, or whether we are applying
them consistently’ (The Model of Rules, 15)
Dworkin’s first major attack against positivism (from ‘The Model of Rules’)
- Dworkin: when lawyers reason or dispute about legal rights and obligations they make use of
standards that do not function as rules, but operate differently, as principles.
- Uses Riggs v Palmer (court was called upon to decide whether a heir named in a will in his
grandfathers despite the fact he murdered the grandfather in order to inherit. There was nothing in
the law to suggest he could inherit’. Court said all laws should be controlled in their meaning by some
general maximums. Court appealed to the maxim – no person should be permitted from his own
wrong. Based upon this principle, the grandson couldn’t inherit) and Henningsen v Bloomfield
Motors (court considered whether a car manufacturer and limit their liability when the car is
defective. Hennington purchased the car, contract limits the liability of the manufacturer only to
defective parts of the car. When Hennington drove, one part of the car become loose and an accident
occurred injuring his wife. Defendant said they’re only liable to the parts, not to the damage that
those defective parts caused. There’s no statutory base for this. Court referred to freedom of contract
principle – weighed it again the principle of the fact that cars are necessary for transportation and the
fact that the use of cars involve inherent dangers. Courts said this danger in driving thus requires
careful examination of the. Vehicle. Court thus held supported the hennington’s) to illustrate the
difference between rules and principles.
- One of the key differences between rules and principles:
Rules applicable in an all-or-nothing fashion.
Principles applicable not in an all-or-nothing fashion; they have a dimension of weight.
‘Rules are applicable in an all-or-nothing fashion. If the facts a rule stipulates are given, then
either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in
which case it contributes nothing to the decision’ (The Model of Rules, 25, hereafter ‘MR’)
- Quotations:
‘Rules are applicable in an all-or-nothing fashion. If the facts a rule stipulates are given, then
either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in
which case it contributes nothing to the decision’ (The Model of Rules, 25, hereafter ‘MR’).
‘All that is meant, when we say that a particular principle is a principle of our law, is that the
principle is one which officials must take into account, if it is relevant, as a consideration
inclining in one direction or another’ (MR, 26).
‘This first difference between rules and principles entails another. Principles have a
dimension that rules do not—the dimension of weight or importance’ (MR, 27)
- Two possible routes by which one might try to account for the role of principles in judicial decisions:
Route 1 principles are binding as law; the law includes principles as well as rules
Some biographical background:
- American legal and political philosopher.
- Lived between 1931 and 2013.
- Studied at Harvard and Oxford. Later served as Clerk to Judge Learned Hand and worked as an
Associate at Sullivan and Cromwell.
- Taught at Yale (1962-1968), held the Chair Professor of Jurisprudence at Oxford (1969-1998).
- Following that held professorships at both UCL and NYU.
A comment on his method
- Aim to provide an account of law that would explain why (that would vindicate and make sense of
the common assumption that) law and legal obligation entitle the state to punish and coerce us; that
a breach of law is a ground for justified coercion.
- Quotation: ‘Day in and day out we send people to jail, or take money away from them, or make them
do things they do not want to do, under coercion of force, and we justify all of this by speaking of
such persons as having broken the law or having failed to meet their legal obligations, or having
interfered with other people’s legal rights. … [W]e are not able to give a satisfactory account of what
that means, or why that entitles the state to punish or coerce him. … [U]ntil we can identify the
principles we are following we cannot be sure that they are sufficient, or whether we are applying
them consistently’ (The Model of Rules, 15)
Dworkin’s first major attack against positivism (from ‘The Model of Rules’)
- Dworkin: when lawyers reason or dispute about legal rights and obligations they make use of
standards that do not function as rules, but operate differently, as principles.
- Uses Riggs v Palmer (court was called upon to decide whether a heir named in a will in his
grandfathers despite the fact he murdered the grandfather in order to inherit. There was nothing in
the law to suggest he could inherit’. Court said all laws should be controlled in their meaning by some
general maximums. Court appealed to the maxim – no person should be permitted from his own
wrong. Based upon this principle, the grandson couldn’t inherit) and Henningsen v Bloomfield
Motors (court considered whether a car manufacturer and limit their liability when the car is
defective. Hennington purchased the car, contract limits the liability of the manufacturer only to
defective parts of the car. When Hennington drove, one part of the car become loose and an accident
occurred injuring his wife. Defendant said they’re only liable to the parts, not to the damage that
those defective parts caused. There’s no statutory base for this. Court referred to freedom of contract
principle – weighed it again the principle of the fact that cars are necessary for transportation and the
fact that the use of cars involve inherent dangers. Courts said this danger in driving thus requires
careful examination of the. Vehicle. Court thus held supported the hennington’s) to illustrate the
difference between rules and principles.
- One of the key differences between rules and principles:
Rules applicable in an all-or-nothing fashion.
Principles applicable not in an all-or-nothing fashion; they have a dimension of weight.
‘Rules are applicable in an all-or-nothing fashion. If the facts a rule stipulates are given, then
either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in
which case it contributes nothing to the decision’ (The Model of Rules, 25, hereafter ‘MR’)
- Quotations:
‘Rules are applicable in an all-or-nothing fashion. If the facts a rule stipulates are given, then
either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in
which case it contributes nothing to the decision’ (The Model of Rules, 25, hereafter ‘MR’).
‘All that is meant, when we say that a particular principle is a principle of our law, is that the
principle is one which officials must take into account, if it is relevant, as a consideration
inclining in one direction or another’ (MR, 26).
‘This first difference between rules and principles entails another. Principles have a
dimension that rules do not—the dimension of weight or importance’ (MR, 27)
- Two possible routes by which one might try to account for the role of principles in judicial decisions:
Route 1 principles are binding as law; the law includes principles as well as rules
