“proposition of law”

- all the statements and claims on what people believe about what the law allows,
prohibits or entitles them to have
- lawyers, judges and lay people will assume that some of these propositions can be
true or can be false
Grounds of law
- reasons or sources that makes these propositions true or false
- meaning like it is illegal to drive over 55 mph in California because the California
legislature passed a statute to that effect
- the legal proposition is only true or false depending on the ground of law that can
encompass it being a legislation, judicial decision or even a principle of justice
Empirical Disagreement
- whether the statute or the judicial decision actually says this
- they disagree with the words of the statute in the same way they disagree about any
other matter of fact
- facts about what the law is (can be observed and verified)

Theoretical disagreements
- disagreements about the grounds of law
- how the particular law works or what counts as a valid legal reasoning
- basically about the interpretation of the law.

1) Principles & policies & rules ✔️

2) Theory of interpretivism vs Hart’s theory of adjudication/ Dworkin v Hart on
what judges do in hard cases.
3) Moral discretion vs premised the pre-existing law – theory of interpretation?
4) Theory of interpretation
5) Dworkin’s theory of law
6) Judge Hercules and the one right answer
7) Dworkin’s criticisms of Hart’s Theory ✔️
8) Dworkin’s theory of integrity
Dworkin’s criticism of Hart
1) ROR
a) Fails to take into account theoretical disagreements/ cure uncertainty
- According to Dworkin the ROR fails to take into account theoretical
disagreements between lawyers and judges about the law. Dworkin argues that
legal positivism only takes into account empirical disagreements that is the
disagreements as to the words of the statute whereas theoretical disagreements are
that which are the disagreements as to the grounds of law where principles of
justice play a role. As such, Dworkin terms Hart’s theory as “plain-fact’
positivism. Dworkin argues that the purpose of the ROR was to curb the defect of
uncertainty however there is still uncertainty in the law as can be seen in the case
of Monica v DPP where both parties’ lawyers have different ideas on what the law
says.
- Hart’s response in the Postscript
~ Hart in return disputes the claims made by Dworkin in stating that if
anything he is a soft positivist as his ROR ‘may incorporate as a lega;l
criteria of legal validity conformity with moral principles or substantive
values.
~ He also argues that Dworkin seems to exaggerate both the degree of
certainty which a consistent positivist must attribute to a body of legal
standards and the uncertainty which will result if the criterion of legal
validity includes the conformity with specific moral principles or values.
~ He also asserts that although yes the ROR was to cure the defect of
uncertainty, his aim was not to clear all uncertainty as he is made it explicit
that the ROR will still have a “penumbra of uncertainty”

- My response towards this argument

~ Dworkin misinterpreted Hart in the sense that Hart established that ROR is
merely essential in determining whether the law is considered valid within
a legal system. Meaning that lawyers and judges can actually accept the
same ROR as rules like PS and JP in which they are concerned with the
validity of an Act of Parliament and Judicial precedent while still having
disagreements as to the principle or interpretation of the law. However,
Dworkin was right in the sense that Hart’s theory does not allow for the
theoretical disagreements and according to Hart is possible that his theory
never intended to as he said that the ROR does come with its own
penumbra of uncertainty and theoretical disagreements can fall within that
ambit.

b) Judges and lawyers don’t seem to share the same acceptance of ROR
- Dworkin argues that if all officials are accepting the same ROR, are they all really
accepting the same ROR if they identify different laws.
- Dworkin also questions about what acceptance of the ROR consist of? In
criticizing the Hart’s theory that the officials need to accept the secondary rules, he
raises the example of the scenario in Nazi Germany in which he states that the
officials merely obeyed Hitler’s commands out of fear. He questions if that means
 their obeyance to the law is their acceptance to the ROR and if it does then he
argues that it means there is no distinction between mere obedience and
acceptance. And if it doesn’t, then is hart arguing that there was no law in Nazi
Germany.
- Hart’s response to this argument
- Dhanya’s response to this argument

2) Rules vs principles vs policies

3) Judicial discretion – Hard cases – rules/policy/principles

Hart postscript
c)
Dhanya thoughts
d) In Monica v DPP, it could be argued that both parties are relying on the same Rule
of Recognition, drawing from Parliamentary statutes and judicial precedents.
However, despite this shared foundation, they reach different conclusions about
what the law actually requires or permits. This illustrates Dworkin’s point that
disagreements in law are not always about which rules are valid (as Hart
would suggest), but rather about how those rules should be interpreted in
light of principles or policy. Thus, even with agreement on the sources of law,
Monica’s case reveals a theoretical disagreement, which supports Dworkin’s
argument that legal reasoning often involves deeper normative debates that Hart’s
framework struggles to fully accommodate.

Dworkin holds that other theories of law (natural law, legal positivism, etc.) are “semantic
theories of law” in which he states that this theories

Meaning in the case of Monica according to Hart

The defendants lawyer is talking about what the law is whereas Ms. Kauffman is arguing on
what the law ought to be.
In Monica’s case you can say that perhaps they are identifying the same ROR in the sense
that they are both relying on PS and JP to support their argument however Dworkin is still
right that his theory doesn’t allow for theoretical disagreements because even though they
may be relying on the same ROR they are instead arguing about the policy behind the rules
Rules vs policies vs principles
1) Policies
- ‘policy’ that kind of standard that sets out a goal to be reached, generally an
improvement in some economic, political, or social feature of the community
(though some goals are negative, in that they stipulate that some present feature is
to be protected from adverse change).

2) Principle
- a standard that is to be observed, not because it will advance or secure an
economic, political, or social situation deemed desirable, but because it is a
requirement of justice or fairness or some other dimension of morality.
- Social goal ie that no man shall profit from by his own wrong doing
- Principles as Dworkin puts it is basically “a reason that argues in one direction,
but does not necessitate a particular decision.”
- In it’s application in the law, it means that just because a principle is not accepted
in a case doesn’t mean that it is not a principle of the law because in another case,
it may be accepted
- Ie “the principle that no man shall profit from his own wrong”, in the case of
Riggs v Palmer this principle was accepted in which the courts refused to allow
the grandson to inherit the will since he had killed his grandfather to do so but in
looking at the law of AP it can be seen that such a principle doesn’t apply since the
defendant gets the profit of being able to own a certain part of the land after
trespassing on it for a stipulated period of time.

Rules vs principles
In regards to the case of Riggs v Palmer, so basically this dude killed his grandfather so that
he could inherit the will. The court was deciding whether or not he can do so.
The principle of the law is that no one shall profit from his own wrong but this is nit a rule
because there are instances where people can profit from their own wrong and the example of
this is AP
Rules – ‘applicable in an all or nothing fashion’
- “If the facts a rule stipulates is given, then either the rule is valid in which…..the
answer it supplies must be accepted or it is not in which case it contributes nothing
to the decision.”
- In explaining this, Dworkin states that it is better to look at how rules apply
outside the ambit of the law in which he takes reference to the game of baseball. If
the rule provides that a batter who has had 3 strikes is out then the official cannot
acknowledge that this is an ‘accurate statement of a baseball rule and then decide
that a player who has in fact gotten 3 strikes is not out.
- He contends that of course rules may have their own exceptions. In fact, Dworkin
holds that a rule without exceptions would be incomplete and that the more
exceptions added the more accurate the statement of the rule becomes. “In theory,
 at least, the exceptions could all be listed, and the more of them that are, the more
complete is the statement of the rule.”
- Rules will define specific duties such as what our obligations are and what rights
we acquire. Meaning rules are similar to that of primary rules of obligations in
which it imposes duties, prohibits you from doing something
- Rules = legal consequence that follow automatically when the conditions provided
are not met.

Distinctions between rules and principles

Dworkin argues that this is a logical distinction. He states that both rules and principles share
a common function in which they set out the legal obligation in particular circumstances but
they differ in the character of the direction they give.
Principles have dimensions where they are given weight or importance. So when there is a
conflict between two principles, one has to “take into account the relative weight of each”.
Rules on the otherhand don’t have dimensions. Dworkin argues that where two rules conflict
then one of them cannot be valid and in deciding which rule is valid, one must appeal to
considerations beyond the rules itself. He says this can be done either by;-
a) The rule enacted by a higher authority ( ie Act of Parliament vs case law)
b) Rule enacted later
c) The more specific rule and
d) Etc.
It should be noted that in cases such as the case of Riggs, in which the decision of the court
that the one who murders cannot be eligible to inherit the will, that the case will stand for the
particular rule. However, Dworkin argues that rule did not exist prior to the decision of the
court and that although the principle that a man shall not profit from his own wrong existed
prior to the decided case, it was merely providing a justification for “adopting and applying a
new rule”. Is this not judges stepping into a legislative function that Dworkin holds is
unconstitutional? Because they are creating new rules.
Dworkin states that, therefore, “An analysis of the concept of legal obligation must therefore
account for the important role of principles in reaching particular decisions of law.” And this
can take two different forms;-
a) That some legal principles are binding similar to that of legal rules and judges must
take into account when making decisions in regards to legal obligations. Law includes
both principle and rules. Judges are wrong if they choose not to apply the principle
when the decision calls for it. (rule of law) – preferred by legal positivist
OR
b) That principles aren’t binding and that “the judge reaches beyond the rules that he is
bound to apply….. for extra legal principles he is free to follow if he wishes”. This
will in turn treat “principles as summaries of what most judges ‘make it a principle’ to
do when forced to go beyond the standards that bind them”. (make it a rule)
If you don’t follow the rule/principles in the first form then you will be “subject to criticism
or censure”.
Dworkin argues that it is not a question on which is the right approach but more in
determining which approach describes the social situation more accurately and he argues that
in this determination will affect or even determine whether in hard cases such as Riggs were
attempting to enforce a pre-existing legal rights and obligations. He states that if we follow
the first form the judges when applying the binding legal principles are in fact enforcing an
existing legal rights and obligations but if we follow the second form then we are arguing that
judges are deciding based on their judicial discretion and thus applying it retrospectively.

Judicial discretion
- It is a relative concept
- Dworkin holds that in a weak sense, that sometimes the standards an official must
apply cannot “be applied mechanically’ but would require them to use some form
of judgement or another weaker sense of discretion can be that “some official has
final authority to make a decision and cannot be reviewed and reversed by any
other official.”
- In a strong sense, the official can be deemed to not being bound by the standards
set by the authority in question essentially meaning that they are free to create law
as they see fit.

1) Legal positivist – ie Hart on discretion

- Where the case does not fit within the core settled meaning of the rule (hard cases
or penumbra cases) then judges have the right to exercise their discretion.
- Dworkin claims “It is the same thing to say that when a judge runs out of rules he
has discretion, in the sense that he is not bound by any standards from the
authority of law, as to say that the legal standards judges cite other than rules are
not binding on them.”
- Dworkin then questions legal positivists whether the principles that the judges
cite, control their decision and if they don’t then what possible arguments could
the positivists raise to prove that it doesn’t. In doing so he raises and dismisses 3
arguments.
a) Principles are not binding or obligatory
 Dworkin argues that this argument is wrong because there will always be a
question as to whether any particular principle is binding on some official.
In quoting the case of Henningsen, he argues that where a judge in
deciding the case favours the defendant by solely relying on only one
principle that is the freedom of contract and fails to take into account or
ignores principles that were of importance in past cases (such as principle
that automobile manufactures have an obligation to their consumers or that
the principle that the court must seek to protect those who are in a weaker
bargaining position)
  Then critics would argue that the judge had a duty to consider those
principles. Dworkin argues that “the duty” mentioned above is the same
obligation in which legal positivist argue that judges have when following
a rule.

b) Some principles are binding in which the judges must take them into account
but principles cannot determine a particular result.
 Dworkin holds that this is true in terms of that rules determines the
result and when a result that is not aligned with the rule the rule mist be
abandoned or changed. But again he asserts that principles are not
rules.
 Principles unlike rules are not all or nothing instead they have weight
which can influence the outcome of a decision, unlike rules which
determine it.
 Although principes doesn’t conclusively determine the outcome of a
decision, doesn’t mean that judges have discretion because judges are
still bound to give weight to the relevant principles and to apply them
accordingly.

c) Principles don’t count as law because their authority and even more their
weight are congenitally controversial
 Dworkin agrees that principles unlike the validity of rules can’t be
found in statute books or in the authoritative opinion of the courts
 Instead, a principle and it’s weight can be found in the “amalgam of
practice” that includes the “implications of legislative and judicial
history” and the specific community practices. It is all a matter of
judgement.
 Just because it is based on judgement, does not mean that judges have
discretion. Dworkin uses the analogy of a the sergeant in saying that he
doesn’t have a device to measure “experience” but there is an
understanding regardless of whether it is controversial or not of what
the rules or his order requires. He argues that the same applies to
judges.
 Following Hart’s ROR which he claims is the ultimate test in
determining binding law and following this model, principles are not
binding law but the mere fact that principles are incompatible with
Hart’s theory according to Dworkin does not mean that principles are
to be treated differently.
 Dworkin argues that positivist should instead prove why the role of
principles should be excluded from the law and not just why they don’t
fit within their framework.
Dworkin states that in our current legal system it is common to see that previous decisions get
overruled and to see interpretations of statutes change and if following the legal positivist
view that judges do in fact have the discretion to change these established rules then can’t it
be argued that the rules are not binding upon them and thus so wouldn’t law in accordance
with the positivist’s model. Hence, Dworkin argues that positivist the must then show that
there are some other standards that are binding on judges that determines when a judge can
overrule or change an established rule. (read about the rule of change or what Hart says in
retaliation to this).
Dworkin argues that the above standard in which judges are allowed to change an existing
law are pinciples. WHY?
1) It is necessary that the judge finds that the change in the law would “advance some
principle”. Basically that the principle justifies changing the law.
 Ie in the case of Riggs, the court sought to change the interpretation of the statute
of wills which was justified by the principle that no man should profit from his
wrong doing.
 He argues further that not just any principle can change the law as that would mean
that the rule or the law can be changed just based on the judge’s whim and thus
would not be binding.

2) Judges when deciding to change the law must also take into account principles that
‘argue against the departure of the of the established rule;
 Dworkin argues that this includes the principle of PS and JP
 Judges are not allowed to just pick and choose which principle to apply on a whim
but they must weigh between the principles that support the change against the
conservative principles such as JP and Ps that support the certainty in the law
Dworkin argues that these 2 standards are similar to the nature of rules in which it is binding
upon officials in the community.
Hart’s rebuttal in the postscript

Dworkin’s Theory of Interpretivism

Start with the introduction
Then go with a short summary of how judges decide cases – Hart – theory of adjudication –
plain and penumbra cases (see whether the case is a plain case or penumbra case) Is the law
clear – following case law a statute or is it penumbra as in there is no case that is exactly on
point and if the law is very clear then how is the case coming to court, because if it is clear
then the facts is supposed to be applied as it is and therefore there will be no basis for an
appeal. If it is penumbra then the Divisional court will have to make law and decide which
interpretation of the law they would want to follow whether it is Ms. Kauffman or the CPS
interpretation.
Then criticism of Dworkin
Both Ms. Kauffman and the CPS don’t invite the court to make law. They explain it as if it is
already law. So why are they pretending not to make law when they already made law.
Then Dworkin’s theory of adjudication/ interpretivism – Theory on how judges should decide
cases and not on how judges decide cases + also go into fit + substance
- In Dworkin, different people can view the case differently meaning that to one it
can be a plain and easy case where you just apply the rule then habis but to
another, the case can be a hard case and they will need to find the justification etc.
- But to Hart, the case can either be plain or penumbra, not taking into account the
perspective of the judge or lawyer. If two lawyer’s disagree then one of them must
be wrong.
1) Explain what Dworkin means by interpretation – whether you agree or not based on
the case, are they arguing what the judges intended or what Parliament intended. No
instead they were looking at all the case law as a whole.
2) Then go into each stages; pre-interpretive stage, interpretive stage, post – interpretive
stage.
3) Once you go into each stage, at the end compare it with Hart’s theory
a) Pre-interpretive stage – similar to the rules that would be identified by Hart’s ROR
hence Hart was right in his Postscript when saying that he and Dworkin share the
same explanation of judicial identification of the sources of law.

b) Interpretive stage – Both Ms. Kauffman and the Divisional Court didn’t disagree
with on what the rules are but they do disagree on what the justification of the law
is. Divisional court never saud that autonomy was irrelevant but they just said that
her interpretation of autonomy does not fit the law. So the Divisional Court’s
judgement actually implies that the better justification for the law is a narrower
version of the principle of autonomy because they rejected Ms. Kauffman’s wide
interpretation of autonomy. ( not explicitly stated in the judgement)
- Ms. Kauffman is arguing that the principle of autonomy is the justification for the
law of rape whereas the Divisional Court did not explicitly go into the interpretive
stage because they didn’t explicitly consider what is the best justification for the
law of rape but by rejecting Ms. Kauffman’s wide interpretation of rape. It implies
that the best justification of the law of rape is the narrower version of autonomy.
- Fit and substance – Divisional court – easy case – just follow what the law said –
decide the case based on fit
 - J – Ms. Kauffman – hard case – in which she states that she believes
that there are two possible justifications that will past the fit threshold - that both
the CPS justification of the case and her justification of the case but she believes
that her justification is substantively better than the CPS justification.
- Compared with Hart – Dworkin’s theory can explain why Ms. Kauffman and the
Divisional Court can disagree on what the law is because they don’t disagree on
the rules but merely the principles that are reflected in the rules whereas Hart –
the court and Ms. Kauffman aren’t disagreeing on what the law is but on what the
law ought to be.
- If you argue that this falls within Hart’s theory where the case is a core case then
how can there be disagreement.
- Conclude that Dworkin is better

c) Post – interpretive stage

- Divisional court didn’t have to adjust anything because they accept that the law =
the existing law
- But had they accepted her interpretation then they would have to overrule the case
of Clarence and distinguish Linekar.
- And if they do so then is Dworkin right to say that this is merely adjusting the
sense of what the rule requires. And if what you are deciding is a completely
different rule then what the rule initially was then aren’t you actually making law?
- And Dworkin does agree that make judges make law but in a trivial sense but
although it is easy to say that, if you put yourself in the shoes of the D, and by
distinguishing and by overruling the above cases, the D is now charged with rape,
would he think that judges make law in a trivial sense?
- Here, you can argue that maybe Hart is correct, in the sense that judges do make
law because it will not be trivial to the D.
Conclude, Although Dworkin’s theory does provide a better explanation as to how judges
should decide cases (interpretive stage), but ultimately Hart is correct in his insistence that
judges do make law.
If the question doesn’t mention hard cases then you can talk about Hart’s theory on general
but mainly focus on Hart’s theory of ROR and then talk about how it doesn’t account for
theoretical disagreements. Then follow the above structure lah.

Principle vs policies
After the intro then go straight into a brief explanation on what the 3 stages are, don’t apply it
to the facts yet, then go to principles and polices and then you apply to the facts
Say when looking at the interpretive stage, Dworkin identifies two types of justifications that
is principles and policies. Then apply it to the facts. State that in the case of Monica, both the
court and the lawyers only relied on principles and not policies. Which is good because that
means they are following Dworkin’s theory. Then follow the argument above when taling
about principles. Both lawyers relied on PS and JP. It wasn’t explicitly states but by applying
the cases it can be implied that both parties relied on those principles.
Why is principles so important to Dworkin? – can tie back to Dworkin’s criticism of hart
especially the judicial law making part but focus on the 2nd and 3rd one because it relates to
the theory of principles.
1) Democracy
- Judges are not elected and they don’t represent society hence they cannot decide
cases based on policy
- On the other hand, because they are not elected, that means that they are more
neutral and more impartial, that they are able to better evaluate and decide
arguments about individual rights
2) Retrospective lawmaking
- Dworkin says that judges should decide cases based on principles because
principes are about existing rights and if a claimant has an existing right against
the defendant then the defendant already has a corresponding duty that is not
created by the courts but an existing duty that justifies the award against him.
- Hence to Dworkin, even if judges change the rules and even if there are no rules,
it doesn’t matter because as long as the judges base their decisions on principles
the it is not retrospective law making.
- How can this be because there was no rule that says that what the D did was rape
what and if the court had decided that it was then isn’t it retrospective law
making? Dworkin states that there’s principles that say that he commits rape what
so ok lah I’m not making law, im just relying on an existing principle.
- This is a bit unrealistic no because, he is basically rationalising justifying making
retrospective law.
- So, then you must decide whether Dworkin is right or the Divisional Court is right
- Here it can be argued that his theory has no connection to reality.
- If there was no rule that states that what Mr. Boyling did was illegal then it is very
misleading to say that in the name of interpretation you create new law that
applies retrospectively just because of the existence of a principle. This is
misleading because that was not the law at the time.

Law as integrity part (usually will come out with the theory of adjudication/ theory of
interpretation so focus on the 3 stages
1) Introduce what is integrity and that the interpretation theory as a whole is theory of
integrity and then at the end tie it back to integrity.
Integrity (acting according to your own principles/ beliefs
- Personal – must act according to his own convictions and his own moral beliefs
- Political – governments even if they may not reach moral perfections, they must
be consistent with the moral principles they relied on
- Subset of political integrity = integrity in adjudication – judges must interoret the
law as coherently as possible in the sense that the law itself should follow the
principles which the law claims to follow ie PS and JP
- So do we see the theory of integrity of adjudication being applied in the set case,
ie the divisional court?
- Connected to Judge Hercules but the court failed to look into the wider law. They
could have considered the law of misrepresentation and contract or murder or
OAPA or Tort in respect to consent. This would mean that they failed to live up to
the idea of integrity.
Dworkin’s Theory of Interpretation/ Adjudication
In devising his theory of law, Dworkin draws a distinction between two types of
interpretation:-
a) Conversational Interpretation: “We interpret the sounds and marks another person
makes in order to decide what he has said”
b) Scientific Interpretation; “Scientist collects data and then interprets them”
c) Artistic Interpretation: “critics interpret poems and plays and paintings in order to
defend some view of their meaning or theme or point”
Dworkin states that the interpretation of the law (interpretation of social practices) is similar
to that of artistic interpretation in the sense that both interpretations interpret something
created by people as an entity that is distinct from them personally rather than what they say
(conversational interpretation) or events created by people as in scientific interpretation. &
interpretation of social practice = creative form of interpretation