Philosophy of Law; First Essay
Introduction The history of jurisprudence is one of the most fascinating of all scholarly subjects. Individuals such as Roscoe Pound, H.L.A. Hart, and John Austin have provided individuals ranging across the disciplines with outstanding accounts of their personal philosophies about the law and the interpretation of it. When looking to the modern era, it is difficult to consider the philosophy of law without examining the much-esteemed Ronald Dworkin.
Part I – Adjudication of Hard Cases
In his well-regarded works entitled “Taking Rights Seriously” and “A Matter of Principle,” Dworkin provides an outstanding account of how judges should adjudicate hard cases. In presenting this account, he examines the discretion thesis. This thesis serves as the mechanism by which members of the judiciary should decide the most difficult of cases by establishing new law in the exercise of discretion. Dworkin assesses this thesis as evident in his comments as excerpted –
“The set of these valid legal rules is exhaustive of ‘the law’, so that if someone’s case is not clearly covered by such a rule … then that case cannot be decided by ‘applying the law.’ It must be decided by some official, like a judge, ‘exercising his discretion,’ which means reaching beyond the law for some other sort of standard to guide him in manufacturing a fresh legal rule or supplementing an old one. (Dworkin 1977, p. 17).”
In consideration of this viewpoint, a judge cannot make a decision about a case that fails to clearly fit under an authoritative rule by interpreting or applying the law. He or she must decide the case by promulgating or establishing a new law that was not existence prior to the adjudication. As such, the discretion thesis implies that members of the judiciary are vested with a quasi-legislative authority in cases that cannot be decided merely through the application of law. In addressing this thesis, Dworkin provides three different circumstances by which
Part I – Adjudication of Hard Cases
In his well-regarded works entitled “Taking Rights Seriously” and “A Matter of Principle,” Dworkin provides an outstanding account of how judges should adjudicate hard cases. In presenting this account, he examines the discretion thesis. This thesis serves as the mechanism by which members of the judiciary should decide the most difficult of cases by establishing new law in the exercise of discretion. Dworkin assesses this thesis as evident in his comments as excerpted –
“The set of these valid legal rules is exhaustive of ‘the law’, so that if someone’s case is not clearly covered by such a rule … then that case cannot be decided by ‘applying the law.’ It must be decided by some official, like a judge, ‘exercising his discretion,’ which means reaching beyond the law for some other sort of standard to guide him in manufacturing a fresh legal rule or supplementing an old one. (Dworkin 1977, p. 17).”
In consideration of this viewpoint, a judge cannot make a decision about a case that fails to clearly fit under an authoritative rule by interpreting or applying the law. He or she must decide the case by promulgating or establishing a new law that was not existence prior to the adjudication. As such, the discretion thesis implies that members of the judiciary are vested with a quasi-legislative authority in cases that cannot be decided merely through the application of law. In addressing this thesis, Dworkin provides three different circumstances by which