LAWS EMPIRE PDF
LAW'S EMPIRE. RONALD DWORKIN. THE BELKNAP PRESS OF. Harvard University Press. Cambridge, Massachusetts. London, England. Law's Empire- Ronald Dworkin - Ebook download as PDF File .pdf) or read book online. A book by Ronald Dworkin. With the incisiveness and lucid style for which he is renowned, Ronald Dworkin has written a masterful explanation of how the Anglo-American legal system works and on what principles it is grounded. Law’s Empire is a full-length presentation of his theory of law that will be.
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European Journal of Legal Studies Title: Expanding Law‟s Empire: Interpretivism, Morality and the Value of Legality Author(s): Alexander Green Source. Destabilizing the Conceptual Foundations of Law's Empire In this critical review of Ronald Dworkin's Law's Empire,1 I deliver a two-pronged. Session 5 Dworkin, selections from Law's Empire: Integrity and Adjudication Legal rights are fully determined by the letter of the laws that have the proper –.
As such we have no reason to base our legal system on those principles exclusively. In this example the requirement is itself unjust but nonetheless well meaning: The value of friendship is cited as having intrinsic value in the latter whilst the intrinsic value of associative communities of which friendship is a paradigm is denied in the former.
If that is the case, then it is hard to see what a community can add by way of obligatory force to a legal proposition. Dworkin acknowledges this in his reply, going so far as to say that integrity understood as principled consistency alone cannot justify a duty to obey the law regardless of its content. Only genuine moral authority can do that.
Indeed attitudes just shy of obedience might be best understood as justified by the universal duty to respect all persons equally, which as we have seen cannot be tied to particular communities anyway. A final position remains to be considered. Does community produce some sort of non- moral normativity that justifies the binding of people to a partially moral code? Given that true moral beliefs are the arguments that support them, it would seem to be a tautology to speak of justifying morality; it is like speaking of the need to justify justification.
Coleman indicates that considerations such as fair play justify obedience to law regardless of content. This displays a fundamental misunderstanding of justification.
Treating any old moral reason as justificatory on the basis that it has some applicability to a situation is not how justification works. When examining whether fair play justifies obedience to the law we must consider the countervailing moral effect of the legal proposition we are asked to obey.
If we do not then we are guilty of bad faith by explicitly choosing not to assess principles that may be and to make this an interesting problem in first place probably are, contradictory to the position we adopt.
As I showed in Section I, this has the paradoxical quality of being a morally irresponsible moral position. I doubt, however, that Coleman is committed to such a view.
There seems to be no basis for non-moral normativity in an argument such as this. Legal philosophy threw command theory out with the ark, but as a justification for normativity such theories purport to justify, rather than describe, obedience.
I can see no prospect of success here. There is no non-moral normativity to be had here either. It seems best to abandon the search altogether. The need to justify any normative claim will invariably lead one back to morality at some stage and as we have seen, there are no good moral reasons going for the intrinsic force of community. If we are still convinced that legality is intrinsically tied up with community values then we are left in a tricky position.
As we have seen so far, hard cases of law are solved by appealing to the moral principles that justify the law in order to discover what the answer should be.
However, if we are to assume that our principles are generated by the community, and not by what morality actually demands, then there is nothing of moral value in our principles because a community generates no serious moral weight and our task becomes impossible. This situation arises because Dworkin claims two things that, on closer consideration, are actually inconsistent.
Firstly he says that we can reach a sceptical conclusion that the law is of no value and that our project should be abandoned.
Stephen Guest suggests that we can do this by making an interpretation from the point of view of a judge who believes that these principles hold value. How does one understand the principle of racial superiority when one engages in reflective reasoning and has to commensurate it with values such as moral responsibility?
Could a Nazi judge actually make a consistent justification of legal practice if the principles he is applying are deeply irrational? This seems unlikely. In order to construct a coherent body of principles on this basis we would have to commit to some principles that were so blatantly absurd that they would fail to stand up to the most simple moral examination. A principle that cannot stand on its own merits can scarcely be held to justify legal practice, even if it is perfectly consistent with it.
After all and it bears repeating it is the substance of the principle that gives it the role it has in legal interpretation.
How can we save integrity from this mess? I believe that we can do so by eliminating the element of community that distinguishes integrity from equality of respect. We can use commonly held views of what counts as equality of respect as a starting point, but would have to assess them as moral arguments, rather than considering them established canon. If we have a prevalent or traditional conception of this idea and country X has one that stands up to moral scrutiny better, we should prefer their conception when considering what our law demands.
Instead we can argue for the use of genuine principles: Such an account of principles fits well with legal practices such as appealing to foreign precedents because it explains why we think substantively correct moral conclusions matter in hard cases. Appealing to universal, as opposed to community based, moral principles affords us the luxury of not being tied to tradition when considering what conception of those principles makes sense.
Such freedom to speculate means that we can engage in moral reasoning in a far more responsible way. Of course, this once again reduces integrity to a theory of which moral standards legal propositions have to satisfy. It is a theory of legal morality and cannot be used to dispute my thesis that true legal propositions never conflict with what morality requires under an interpretivist model.
We are back where we were at the beginning of this 85 In any event I find it difficult to believe that many legal systems have a settled conceptions of equality of respect anyway. The point is that we should not shy away from moral reasons just because we cannot find them in our traditionally accepted sources.
Integrity and the Dimension of Fit In this section I turn from abstract discussions of the moral value of integrity to see whether this moral value in fact justifies legal practice as a theory of legality must.
I ask whether integrity explains our adherence to precedent and whether alternative explanations might suit that phenomenon better. I end this section by suggesting that law as integrity leaves out an important element of legal practice: These two elements are not separable but form part of a single interpretive exercise.
The adjudicative principle of integrity is designed to reflect this conclusion that I so hotly dispute. Nevertheless there is something intuitively appealing about it. We paradigmatically argue from the past political decisions of our own community rather than those of others. Indeed the whole system of arguing from authority, rather than on the basis of sound moral argument, suggests that our legal practices value something about such sources.
A major task for my thesis is therefore to explain this practice in such a way that justifies my previous conclusion that it is morality, and not a moral reading of past practice alone, that gives legal propositions their truth. First I want to make a methodological point.
In his chain novel example his authors fit their interpretation to the existing text. Hercules fits his legal interpretation to the collection of political decisions presented to him by his fictional variant of the American legal system. In the UK we accept that among our legal sources are things such as statues and case law.
However we also refer to academic commentary, international standards and comparative jurisprudence. The latter are taken to be non-binding of course, but this is only a feature of Anglo-American legal 88 Dworkin, Justice in Robes, In Germany for example, courts often treat past decisions and academic commentary as equally persuasive.
However legal practice almost always expands on such documents. The case of Marbury v Madison in the US is a key example of this. Legal practice is, unfortunately, not something that we can refer to in written format because it comprises more than official decisions. It includes methods of reasoning and substantive moral convictions. For example, in the UK Parliament is considered sovereign by many.
Whilst we could provide a historical account of how this came to be, we would have no reason to accept this tradition as part of our legal practices, only an explanation of how we became aware of the possibility of counting it as such. We must hold a substantive moral conviction that Parliament should be sovereign in order to justify why we consider obedience to it as part of our legal practices. Even fidelity to a written constitution requires an underlying moral theory.
If not, one could not proceed with moral-principle-based legal reasoning, as judges can so obviously be seen to be doing.
Without independent justifications of their existence, legal practices cannot be interpreted. Legal interpretation requires the interpreter to identify the practices that count. Making the best sense of legal practice cannot be the same as interpreting a novel or a collection of official decisions.
My objection is that a real judge simply cannot reason this way. This is because in order to have a concept of fit one requires a positive moral theory of what should count as the sources of law one is interpreting.
Ask yourself the following question: He faces exactly the same problem there though.
Ultimately all that one can ever do is to provide a substantive moral reason why a particular source counts as an appropriate target of interpretation.
Law as integrity fails to do this because it assumes that the question of what counts as legal practice is a settled matter. Take the example of international law and the creation of jus cogens norms. Traditional theories of international law suggest that it develops from different varieties of state action or consent.
However state practice can purportedly create norms that then exist regardless of whether state practice conforms to them. Do we accept the application of these norms as part of our legal practice or do we reject them as inconsistent with our practices thus far? Whatever we decide, we will have to provide a reason for including or excluding them other than the fact that they exist. Do we count these as part of our legal practice and require a theory of legality to account for the reason why more young black males end up being arrested for the same offences than young white females?
Of course we do not, for we have good moral reasons not to count these actions as part of our legal practices.
So why do we place so much weight on the opinions of a judge writing one hundred years ago and not on a modern academic at the height of his powers? It seems difficult to answer this question other than by providing a moral answer. If a legal practice has none, then there is no reason for considering it to be a worthy object of interpretation.
Law's Empire- Ronald Dworkin
By forwarding the conclusion I have, I am not suggesting that all our present sources of law are invalid, merely that everything treated as a source of law must have a moral justification. Nine times out of ten leading cases provide a wholly justifiable moral basis for a legal decision.
Every now and again however, such as in the case of R v R, authority should be and is overturned for moral reasons. That a positive moral value can change our approach to interpretation should be no surprise, as a theory of interpretation is itself a moral theory.
I can now move on to discuss the substance of the doctrinal stage of law as integrity. It provides us with a very good reason why we should accept statutes as valid sources of law regardless of their content. Equality of respect, it is argued, requires us to respect the moral value of the moral beliefs of others even when they are wrong.
Pol'y There is certainly a principle of legitimate expectations in public law that might be given as evidence for this. Surely it would demonstrate greater respect to apply correct moral reasoning to an individual rather than bind them by morally inappropriate standards, even if these standards benefit them?
After all, as I commented in my third section, equality of respect requires action appropriate to the object of respect and not necessarily the treatment such a person either expects or desires.
If we take every new judicial decision in a hard case as altering the interpretation integrity requires, at least in part, then all attempts to justify precedent with equal treatment must fail.
This is because every time a new decision is reached, and legal practice alters, the principles we adopt will alter in their application even if not immediately in their substance. New legal possibilities will suggest themselves and a certain amount of follow-up litigation will result. Time passing is obviously important and just because change is incremental we should not be tempted to deny that it is change.
If the principles used are true moral principles, rather than principles that depend for their weight in part on emanating from an associative community, then the judges really do apply, rather than make, the law. That is because what counts as a true moral principle is metaphysically restricted to those supported by an unassailable moral argument. When we appeal to moral principles in the normal way we seek to establish a case for all places at all times.
If law is based on such a case then it cannot be changed, only progressively realised. Note that the paradigm of such a principle is when an administrative authority makes representations to, or consistently treats a particular individual a particular way.
This is loosely analogous to precedent but could just as easily be justified by a theory of promising. I fully accept the latter point and it is for that very reason that I reject the former. Given the problems law as integrity seems to encounter in explaining precedent I propose an alternative conception of legality.
If we view precedent, not as a collection of definitive conclusions on matters of principle, but as an ongoing project of investigation into the nature of an ideal set of social relations, then we can develop a view of legality that promotes the importance of moral development. Since the early days of moral philosophy scholars have used moral arguments to enquire into the meaning of important concepts and to develop theories of virtue and state.
It is widely accepted that we develop our moral theories best when many minds engage on important issues and understanding flourishes in academic debates when critics emerge and theories are put to the test.
I am not suggesting that what counts as a true proposition of law changes as moral progress is made, but rather that getting the law right is aided by developing a corpus of discussion of various issues because that corpus itself aids moral investigation. Under such a model, precedent would only be worth following if it was morally correct but it would still be a valuable contribution to an ongoing project even if it were wrong.
This model of the value of precedent accounts very easily for instances where established precedent is overturned. Any contentious decision that overturned established precedent, such as R v R in the UK or Brown v Board of Education of Topeka in the US, can be seen as justified because it got the law right not just in terms of consistency but in terms of content.
It always aims, however, to get matters of principle correct in the present. It is the past that is questioned — the future is not speculated about. Penguin, Indeed the two seem to sit very well together as both equality of respect and accuracy require in-depth moral justification of legal decisions in order to prove why the solution adopted justifies the way the parties are treated.
Furthermore, the value of precedent would be maintained under such a conception of legality: The emphasis would be on why a different solution was reached, rather than why a previous decision should be repeated.
The result of this is that the equality of respect that law as integrity promotes, that of ensuring that consistent principles are applied to all, would be better served by adopting this less stringent adherence to precedent. For after all, how could we describe a person as being of integrity if they failed to question their own beliefs?
The important point is that it describes the value of legality as one that actively aims to transcend parochial conceptions of value rather than being held back by them. Accepting this theory of legality requires one to accept my overall thesis as well.
This is because legality for interpretivists is what gives rise to the truth conditions of law and this theory of legality requires the best possible moral answer to any legal question. This theory of legality might seem counter-intuitive to some but only if one focuses on the legal practice of stare decisis alone.
It is important to bear in mind that we are seeking a justification of legality that captures the value of all our legal practices taken together. I believe that this union of accuracy and equality best justifies legal practices such as judicial use of academic writings, comparative doctrine and international standards in formally dualist systems.
It also helps explain the increased importance of dialogue between national and international courts, in addition to that between courts and legislatures.
Furthermore, whilst it might have serious implications for the nature of the value of past precedent, it could very easily leave the duty of lower courts to obey higher courts untouched. We might seek to justify the latter with arguments of efficiency, claiming that it would just be practically unworkable to have an appeal system without vertical precedent of this kind.
After all, to a theory of legality that places emphasis upon accuracy, quality of reasoning is of paramount importance. If the courts have no time to reason at length because of flooded dockets then the whole legal project goes down the drain. Vertical precedent might be an entirely justifiable solution to this problem. Incidentally, the same weight is given in that statute to academic opinion.
In civil cases whilst it is formally bound to its past interpretations of the law it can override its own previous decisions in the event of mistaken views about the existence of legal decisions or when there is a conflict in the doctrine.
Morality in Context In this section I expand upon the conclusion that, for interpretivists, true propositions of law depend upon what morality demands. I adopt an understanding of morality that reflects the both the theory of moral truth advocated above and the theory of legality that I have developed.
This is both because of the correct standards of moral reasoning described in Section I and because legal questions deal with real problems, not simple thought experiments.
It is important, as a result, to root moral questions in the choices that people have to make. As Dworkin puts it in the context of the allocation of resources: I argue that it does so through an equal commitment to both accuracy and equality of respect. Even if my previous criticisms of law as integrity are not convincing, I have at least demonstrated that morality underpins every aspect of that conception of legality.
However, this does not imply that all morally justifiable propositions are legal. The moral justification required is one that provides a reason why a proposition should be treated with the force of law. There are other aspects of morality that might not achieve this status, for example virtue based ethics or supererogatory commitments. Practical moral judgements are highly contextual.
It might be acceptable for the law to allow something to happen that might be considered wrong in isolation. The moral question addressed to a legal decision-maker is not whether the outcome contains only aspects that are right in themselves but whether the overall outcome is the best possible or not.
This is exactly the same as the moral question that we would ask in the same circumstances. The only difference is that the legal question is asked as part of our legal practices. Resources for: Related Subjects LAW: General Share This. How Cars Transformed American Freedom on the symbiotic nature of the growth of the auto industry and law enforcement ; the Cato Institute journal Cato Unbound is running an online symposium on the book through the end of April.
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A session of the Imperial Diet shall last during three months. In case of necessity, the duration of a session may be prolonged by the Imperial Order. When urgent necessity arises, an extraordinary session may be convoked, in addition to the ordinary one. The opening, closing, prolongation of session and prorogation of the Imperial Diet, shall be effected simultaneously for both Houses.
When the House of Representatives has been ordered to dissolve, Members shall be caused by Imperial Order to be newly elected, and the new House shall be convoked within five months from the day of dissolution. No debate can be opened and no vote can be taken in either House of the Imperial Diet, unless not less than one third of the whole number of the Members thereof is present. Votes shall be taken in both Houses by absolute majority.
In the case of a tie vote, the President shall have the casting vote. The deliberations of both Houses shall be held in public.
Law's Empire- Ronald Dworkin
The deliberations may, however, upon demand of the Government or by resolution of the House, be held in secret sitting. Both Houses of the Imperial Diet may respectively present addresses to the Emperor. Both Houses may receive petitions presented by subjects.
Both Houses may enact, besides what is provided for in the present Constitution and in the Law of the Houses, rules necessary for the management of their internal affairs. No Member of either House shall be held responsible outside the respective Houses, for any opinion uttered or for any vote given in the House.
When, however, a Member himself has given publicity to his opinions by public speech, by documents in print or in writing, or by any other similar means, he shall, in the matter, be amenable to the general law. The Members of both Houses shall, during the session, be free from arrest, unless with the consent of the House, except in cases of flagrant delicts, or of offences connected with a state of internal commotion or with a foreign trouble. The Ministers of State and the Delegates of the Government may, at any time, take seats and speak in either House.
The respective Ministers of State shall give their advice to the Emperor, and be responsible for it. The Privy Councillors shall, in accordance with the provisions for the organization of the Privy Council, deliberate upon important matters of State, when they have been consulted by the Emperor. The Judicature shall be exercised by the Courts of Law according to law, in the name of the Emperor.
The judges shall be appointed from among those, who possess proper qualifications according to law. Trials and judgments of a Court shall be conducted publicly. When, however, there exists any fear that, such publicity may be prejudicial to peace and order, or to the maintenance of public morality, the public trial may be suspended by provisions of law or by the decision of the Court of Law. All matters, that fall within the competency of a special Court, shall be specially provided for by law.
No suit at law, which relates to rights alleged to have been infringed by the illegal measures of the executive authorities, and which shall come within the competency of the Court of Administrative Litigation specially established by law, shall be taken cognizance of by a Court of Law. Chapter VI. Finance Article The imposition of a new tax or the modification of the rates of an existing one shall be determined by law.
The taxes levied at present shall, in so far as are not remodelled by new law, be collected according to the old system.
The expenditure and revenue of the State require the consent of the Imperial Diet by means of an annual Budget. The Budget shall be first laid before the House of Representatives.
The expenditures of the Imperial House shall be defrayed every year out of the National Treasury, according to the present fixed amount for the same, and shall not require the consent thereto of the Imperial Diet, except in case an increase thereof is found necessary. Those already fixed expenditures based by the Constitution upon the powers appertaining to the Emperor, and such expenditures as may have arisen by the effect of law, or that appertain to the legal obligations of the Government, shall be neither rejected nor reduced by the Imperial Diet, without the concurrence of the Government.Here the correct moral solution would be to uphold a taxation level, which considered in isolation of the legal practices it is implemented by, would be less than ideal.
Chapter VI. Permissions Icon Permissions. I am not proposing a new theory of analytical jurisprudence, merely asserting what I feel to be a better interpretation of legal practice.
Furthermore, whilst it might have serious implications for the nature of the value of past precedent, it could very easily leave the duty of lower courts to obey higher courts untouched. It seems to me that the principle that a conclusion is only sound in the natural sciences when supported by irrefutable evidence is not so different from the moral principle that a conclusion is only true when supported by an irrefutable argument.