This essay is about the school of thought of Ronald Dworkin and how did the school of thought best describes the concept of law.
Firstly, it is important to understand the school of thought of Ronald Dworkin. Dworkin claims that laws must be interpreted in light of the best moral principles that underlie philosophy. His views represent a reconstruction of traditional natural law theory. He believes in the moral content of the law. According to Dworkin, when judges and lawyers considering the best way to solve a legal issue, they should not just simply identify exactly what positive law is applicable in a certain case and not just simply using the literal rule to interpret , but taking an interpretative approach to law as social practice. Dworkin emphasizes that a solution to a certain case is always sought out through a matter of interpretative practice. In accordance with Dworkin’s arguments, the interpretation of law should not only fit into the legal system but also be the best normative justification of law as such, this means that not only must the interpretation of the judge’s be consistent with the law identified at the “pre-interpretative stage”, but also the law must be interpreted in a way which is the best in the participants’ mind.
[J]udges 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 of tort or contract (Dworkin 1982, 165).
Therefore, refer to the quote of Ronald Dworkin in the question that there are familiar assumptions of many people that when the judges go beyond political decisions already made by the parliament and government they are legislating. This quote shows the legal theory of Dworkin, as when the judges dealing with a particular case , judges should make decisions and interpret the case morally. This may go against the legislation which enacted by the parliament. So when the judges use moral rule, they are interpreting the law in a different way and they are not following the decisions of the parliament, to use the pure meaning of the words of the legislation and they may go beyond and override the parliament.
Secondly, with reference to the judgment of Justice Foster in Fuller, ‘The Case of the Speluncean Explorers’ (1949) 62 Harvard Law Review 616. The judgement of Foster had shows the idea and the school of thought of Dworkin and they both supported natural law, an observable law relating to the natural phenomena of human. This case is a fictional judgement about five explorers who are caved in a landslide, they are likely to starve to death and they decide to select one of the number to be eaten and engage in cannibalism. The article introduces five possible judicial responses about whether they have to face the death penalty. foot Justice Foster would reverse, sets aside convictions. These are the judgements that Foster mentions in the case (1)The statute can be applied to the explorers but the purpose of the statute would not be served by applying it in this case as the men may violate the law without breaking the law itself. Statutes or judicial precedents should be reasonably interpreted in the light of their obvious purpose, knowing from self-defense that the main purpose of criminal law is to deter people from committing crimes, and that the law should correctly convey the will of the House of Representatives. Therefore, it is necessary to expect judges to have the same intelligence quotient and to correct obvious legislative mistakes and omissions. (2)As the case took place outside the federal territory and the explorers were cut off from society. They are in a state of nature and no one would argue that the society’s laws should apply to them . The laws of nature would allow them to sacrifice one’s life and to save the other people because the territorial principle assumes that people coexist within the same group, and that positive law is based on the possibility that people can coexist. Therefore, the case can be morally separate from the law as during the time of the crime, they were not in a state of a civilized society, but in a natural state.
Therefore, the judgement of Foster shows that he uses Dworkin’s jurisprudence and his school of thought to create the judgement. As Justice Foster also agree that the judgement should be judge morally , following the natural law.
Thirdly, by reference to Lloyds Bank v Rosset . It clearly shows that it is a counter case to Dworkin’s theory as the house of lords did not follow Dworkin’s theory and followed more of Hart’s theory in this case. Hart is a positivist and he believes in legal positivism. He thinks laws are commands of humanity. He also says that it is not necessary to have connection between law and coercion or between law and morality. He explains that to classify all laws as coercive orders or as moral commands is to oversimplify the relation between law, coercion, and morality. FOOTNOTE http://www.angelfire.com/md2/timewarp/hart.html He also explains that to conceptualize all laws as coercive orders or as moral commands is to impose a misleading appearance of uniformity on different kinds of laws and on different kinds of social functions which laws may perform. He argues that to describe all laws as coercive orders is to mischaracterize the purpose and function of some laws and is to misunderstand their content, mode of origin, and range of application.
In the case of Lloyds Bank v Rosset,the defendant, Mrs Rosset, was married to Mr Rosset, who was the sole registered owner of the property. Mr Rosset had bought this house with his family trust money, which had insisted on his sole ownership as a condition for using that money. Mr Rosset had secured a loan against the property from the complainant’s, Lloyds Bank. The defendant had helped in the building work and decorating of the property. However, Mr Rosset defaulted on his payments and the complainants sought repossession of the property.It was held that the defendant did not have a beneficial interest in the property. Mrs Rosset did not make any financial contributions in buying the property nor for the renovations; she had only helped with the physical building and redecorating of the house. There was no discussion or agreement between Mr Rosset and Mrs Rosset regarding the ownership of the property and without express agreement, there could be no beneficial interest for the common intention needed to form a constructive trust. Mrs Rosset’s work on the house was not enough to form an equitable interest. Thus, the complainants were successful.
This case is a case which counter and disagree the theory of Dworkin and it follows Hart’s theory. Hart’s strongly criticise moral rule, he thinks law is the social fact and propose to follow the legislation directly . He thinks that there should be no necessary moral consent of law. He believes the moral rule would mischaracterize the true meaning and the purpose of the law.So as this case, the House of Lords followed Hart’s school of thought instead of Dworkin’s school of thought to hold the judgement. As in this case, Mrs Rosset only helped with the physical buildings and the decorations of the house, her work was not enough to form an equitable interest. This case clearly couldn’t consider morality because the effort she put in was not equivalent to Mr Rosset’s house. Rather than interpreting the law morally, the house of lord follow the principle legal system contains a principle state reason that argues in one direction but does not necessitate a particular decision.
Therefore, from this essay it shows us that there are different school of thoughts and theories. As there are different judges and there may also have different concept of law and jurisprudence. These school of thoughts also have their own advantages and disadvantages.
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