Dworkin

Nathan Vandy
Mind Map by Nathan Vandy, updated more than 1 year ago
Nathan Vandy
Created by Nathan Vandy almost 5 years ago
26
3

Description

Mind Map on Dworkin, created by Nathan Vandy on 03/10/2015.

Resource summary

Dworkin
1 Introduction
1.1 normative/analytical distinction
1.1.1 critique of Hart's account of law
1.1.1.1 critique of Hart's conception of the enterprise of jurisprudence
2 Rules and Principles
2.1 Hart: law is found by reference to the basic rule of recognition
2.1.1 It recognises certain sources as "sources of law"
2.1.2 application of rules can be unclear because of the "open texture" of language
2.1.2.1 In these cases courts must exercise: discretion, policy consideration and fairness
2.2 Dworkin: the law does not consist only of rules but also of principles
2.2.1 Riggs v Palmer - no man should not profit from his own wrong

Annotations:

  • The rules of testamentary succession were binding on the court by virtue of certain unpinning principles, such as the principle that "the enactments of the legislature should be enforced according to their clear wording"
  • Allow the principle about enforcing principles over the principle of "no profit" would be a serious infringement of values[ ]#
2.2.2 rules vs. principles
2.2.2.1 1. Rules apply in an "all or nothing" manner whilst principles are the reasons the decision

Annotations:

  • If the rule applies, and it is a valid one, the the decision should be made in accordance with the rule WHEREAS as there can be many principles they cannot give a conclusive reason
2.2.2.2 2. Valid rules cannot conflict whereas principles can and still be legally binding (valid)
2.2.2.2.1 lex posterior derogat priori
2.2.2.3 3. Principles hold a dimension of weight whereas rules are one-dimensional

Annotations:

  • As rules are either valid or invalid, they have no issue of "outwieghting"
3 Principles and Positivism
3.1 Legal principles cannot be identified by Hart's rule of recognition

Annotations:

  • A principle may already exist even though no court has ever formulated it or laid it down as a principle
3.1.1 They are part of the law but can be identified by some version of the rule of recognition
3.1.1.1 this does not refute legal positivism or Hart's theory in general
3.1.1.1.1 if principles are not part of a legal system this means that judges are amending the law which means that they are not bound by it making rules redundant
3.1.1.1.1.1 legal positivism becomes a version of rule-scepticism
3.1.1.1.1.2 Dworkin argues that if principles are not part of law, then rules are not binding
3.1.2 They are not part of the law but an extralegal moral consideration that judges may take in their discretion
3.1.2.1 Incorrect as even by enforcing both plaintiff and defendant's rights are based on principles
4 Discretion and Rights
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