Back when I started this law stuff, I intended to do 1 post of background, and then get to the stuff I actully wanted to say. And here we are, part four, and it's still just background. So I'm going to quickly blow through Ronald Dworkin's ideas, get to the CLSers, and move on to other things.
Dworkin argued that despite the gallons of ink spilled over the issue, the question "What is the law" had yet to be properly answer. He thought the Realists were arrogant, and that the Positivists answered many questions, but not the truly fundemental ones.
Realists argued that judges have true discretion, while Positivists say judges are bound by the secondary rules. Dworkin says neither answer is sufficient. In practice, judges do not have unlimited discretion and there will always be cases in which the rules are insufficient.
Judges are bound by principles. The distinction between principles and rules is important. Rules are hard and fast, all or nothing. A rule is meant to apply 100% of the time; all exceptions must be explicitly listed as part of the rule. If two rules contradict each other, one must be erased; they cannot exist side by side.
Principles work differently. Principles are not all or nothing; they can apply to some cases, and not to others. They do not have explicit exceptions, because the principles themselves are not explicit. They are simply part of our common conception of justice.
One of Dworkin's example cases is Henningsen v. Bloomfield Motors (1960). Mr. Henningsen bought a car; the warrenty said the manufacturer's liability was limited to "making good" defective parts, and abosolutely nothing else.
My textbook offers no details of the case, but for whatever reason Hennginsen argued that the manufacturer should be liable for more than just parts. At the time, there were no rules governing this issue, but the court decided for Henningsen. The court said that cars are important and dangerous, so manufacturers need to be liable for more than just parts. The court also said it couldn't support an agreement where someone's economic necessity has been exploited.
The court relied on principles - especially the bit about not exploiting economic necessity. The court considered another principle - the need to hold up contracts. Here we have two principles that contradicted each other; the judge needed to weigh the two against each other. This is another aspect of principles; they have weight. In each case, the judge must decide which of the possibily contradictory principles is the most important.
And how do judges weigh principles? Well, it's what you call a hermenutic process. Unfortunately, the rule of recognition cannot deal with principles; the RoR can only handle rules. Principles, Dworkin believes, spring from the meaning of justice itself.
For Dworkin, the law is a continuing story. Each judge - or generation of judges, I guess - writes the next chapter. When dealing with an open texture case, a judge needs to look back over the precedent cases, and find the themes and ideas that are most important, and find a way to tie his current case to those themes.
It's like writing a chain novel. Dworkin's example is A Christmas Carol. Let's imagine a judge in the position of basically writing the last chapter in this novel. How is he going to portray the character of Scrooge? Should the theme of capitalism run amok win out by chosing to have Scrooge continue his ways? Or should the theme of redemption win out, by chosing to have Scrooge reconcile with Cratchet?
That's the work of the judge; picking out the themes of the past and continuing the story.