Applied Legal Theory S2E8

Essay must be analysis of what you understand of the class material —> don’t go out of
bounds of what was taught

Dworkin: Laws as Integrity

A legal system consists of:
• Rules
• Principles
• Policies

• Courts should not have policy in mind to decide cases —> SOP, No sneaky new rules
• Justice Keen in Speluncean case
• Their jurisdiction is limited merely to rules and principles
• Rules are highly rigid, do not invite discretion
• Principles are broader standards that invite discretion —> include considerations of
fairness, justice and morality
• Judges must weight both and decide which one is most congruent with the historical
values of the society

Hard Cases
• Where rules in questions are unclear as to their applicability; or
• No applicable rule
• Chess player example:
• Behaviour of a chess player who unnerves players by smiling
• Uncertainty as to whether any disqualification or sanction should be imposed

McLoughlin v O’Brian —> policy requirements —> FJR

• Psychiatric injury is easier to replicate
• Easier to fake than physical injury —> no empirical evidence to prove psychiatric
injury
Riggs v Palmer
Alcock v Chief Constable of South Yorkshire Police

Dworkin argues that unwritten maxims are non-rule standards

Rights As Trumps
• Prevent cost-benefit analyses to take away fundamental freedoms and rights
• Dworkin criticises postivists for their utilitarian calculus
• Rights as an anchor/buttress against encroachment by state authorities —> very
strongly based on a vision of liberalism
• Rights have a threshold weight that take precedence over social and communitarian
 goals in general circumstances
• Courts should not be able to override rights on policy grounds —> courts should not be
concerning themselves with policy in the first place
• Should parliament be allowed to curtail fundamental rights and freedoms on policy
grounds
• Can, but have limits —> there are constitutional limitations placed on hate speech
hand such
• But they should not be allowed to take away rights based purely on utilitarian
grounds
• Emergency or catastrophic circumstances may entail exceptional measures

So far: balancing act of rights —> not actual trumps, but only emphasis on individual
rights to be remembered

Criticisms of Dworkin
• Does Dworkin offer too idealistic a picture of the judicial role?
• Hercules J is in reality a myth (haha) and a fraud —> no way you will find a judge that
lives up to the Herculean standard —> not the most realistic standard to which judges
should be held
• Legal problems require a common sensical approach
• Too idealistic to suggest pure application of principles
• Judges are human, inherent bias, imperfections
• Does Dworkin’s theory have universal application to all types of legal systems?
• Dworkin as an idealist/utopian
• Noble dreamer?
• Not as applicable in a non-liberal jurisdiction (societies in which the rule of law is less
prevalent)
• Is it true/realistic to describe judges as making decisions purely on principle and not
policy
• Could judges dress up policy as principle?
• e.g. neighbour principle? Creation or interpretation
• Is there even a clear distinction between principle and policy? Are these standards
malleable? Are they subject to the expression and articulation of judges (language
influencing thought)
• Do we see judges routinely and habitually making references to policy? (FUCK
YEAH)
• There may be more than one correct answer to a case (or difference in reasoning)
• Question of justification of reasoning
• Realists will make the argument that law is not like a chain novel, because some judges
like to create their own narrative (groundbreaking precedent)
• Finnis has criticised the “right answer” thesis by comparing it to “the most romantic
English novel” —> there is no real criteria
• Gaps and rules are not capable of precise, semantic measurement

Whether Dworkinian model is descriptive or prescriptive in character

• Dworkin has no clear distinctions between rules and principles
• Rules have no real presence —> merely parasitic standards that attach themselves to
bigger principles —> not standalone entities
• Principles are historical blocks tracing the linear development of law (waystones on the
path)
• Each case affects the standards and principles of the entire block
• Whether precedent is an accurate representation of current standards (precedents,
no matter no recent, are always of the past —> thus they are only historical —>
every case is a hard case —> not possible for judges to directly apply any case
without first considering its suitability —> if values are mercurial soon, then
direct application is no longer possible—> thus Hercules’ mind would collapse
over the pure range of caselaw he must consider for each case)

Mustaspha v Culligan of Canada Ltd

• Gentleman who suffered psychiatric injury after witnessing the remains of a fly in a
bottle of water
• Hydrophobia
• Professional and personal life —> depression, afraid of taking baths

Legal Realism: American and Scandinavian

• Skeptics of abstract philosophical constructs: Everything you take for granted is just a
figment of human imagination that has no objectively verifiable existence
• Realists are characterised by their refusal to accept law at face value
• A realist Hercules takes the route of a tinker: The end result is visualised and the
reasoning is worked out in order to reach the outcome that is socially desired
• The law is merely an instrument in order to fulfil social objectives
• Legal instrumentalism
• Realists take a more holistic approach —> law in conjunction with other social
sciences —> law as a form of social engineering to bring about social change
• Lawmaking and its application is driven by human behaviour, psychological
dimension involved in lawmaking —> indispensable to the operation of legal system

• American: behavioural aspects of judicial decision making

• Scandinavian: Impact of rules on human behaviour, how people heave in the
contemporary society
Central Themes
• Central idea behind legal realism is that law is made by human beings and is therefore
subject to human frailties and imperfections
• Practical, empirical and pragmatic in orientation
• Informed by a behaviourist view of law
• Law has strong connections with psychology ,sociology, economics, politics and even
anthropology

American Realism
• Oliver Wendell Holmes (1841-1935)
• Karl Llewellyn (1893-1962)
• Jerome Frank (1889-1957)

Holmes
• Life of the law: Not logic but experience
• Question of observation: Perhaps certain judges decide certain cases in certain ways?
—> may be able to predict with higher accuracy the actual outcome of the case that
cannot be gleaned from legislature
• Knowledge can be gained through practice
• Thus we may gain enough experience to predict the outcome of a case (inner
simulation)

• Law is often facially neutral (neutral on the surface)

• Bias stems from judges —> systemic discrimination?
• Sentencing tendencies

• One of the central figures in American Realism

• Seminal work: “The Path of the Law” (1898)
• Practical approach to law: law responds to what is “needed” in society at the relevant
time; judges often modify or amend the law to meet such needs (relevant societal
goals)
• Marital rape? R v r.
• Adultery?
• Euthanasia? (see verse developed from idea by Sophocles)

• Anti-Dworkinian —> that there may be more than one correct answer, or more than
one way of reasoning to the correct answer
•