DWORKIN AND HART (SPECIFIC)

HLA Hart’s construction of law is founded as a ‘social phenomenon’, in which it is

considered ‘to be understood and explained’ only by way of ‘reference to the actual
social practices of a community.’1
- Modern legal positivism , more focused on transparency and human condition
-
In contrast DWORKIN VIEWPOINT IS -
According to Dworkin, it is inferred that we
should ascertain from ‘judges’ the concept of what law is.3

EXPLAIN HART BRIEFLY -

AS PREMISED ON THE RULE OF RECOGNITION WITH PRIMARY RULES THAT HAS AN
OBLIGATION TO FOLLOW , whilst secondary rules that is the regularutoy ambit of the
primary rules
ALL ROR IS PREMISED ON ACCEPTANCE BY OFFICIALS
Hence it is very rule and descriptive based - which is what DWORKIN ATTACKED ON
THAT IT IS JUST DESCRIPTION AND does not account for a legal system as a whole
(which would be contested if this the case and whether has any merit to his argument)

1. As the whole idea is premised on A RULE - AND THIS IS WHAT DWORKIN IS

AGAINST - IN THE FAILURE TO ACCOUNT FOR PRINCIPLES

AS FOR HART went on the idea of an open texture of just fully legal rules
As argues that inevitable that cannot predict every future instance and in order to
develop - there should be an area open to work around - a penumbra of uncertainty
to cope - as then only can decide continually and update
As all that needs to be decided is whether to add the new case to those falling
under the rule
As should just extend the case depending on whether aim of legislation and
balance competing interest

However dworkin is against this - as instead should be based on the flexible account for
procniiples - set of principles that have relative weight and can choose the best principle
and interpretation - AND DENIES THAT THIS IS DISCRETION - although HART THINKS that
there is really no distinction and choosing between them is discretion

- But also in deciding based on principles would not only be cohesive without
any subjective discretion , but also would be jsustificatory in the sense that
 judges know on what basis made the decision and not simply folliowing
rule….

HENCE PRINCIPLES PERFORM MULTIPLE ROLES AND IS FLEXIBLE ,

rules are just an all or nothing fashion
2. IMPORRTANCE OF PRINCIPLES - RIGGS V PALMER, ADVERSE POSESION
HOWEVER IT CAN BE FORESHADOWED - if rules only have all or
nothing fashion how can a single handed rule of recognition determine any
legal issue - THIS IS ALSO OWING TO THE FACT THAT THERE IS NO
CLEAR DISTINCTION BETWEEN RULES AND PRINCIPLES

As in now going to the idea of RULE OF RECOGNITION , HART AGAINST IT

as stil even then insisted on the importance of principles.
As another ambit in why he stressed on principles - is that it justifies the decision
better - and he says HART DOES NOT PROVIDE A ADEQUATE
EXPLANATION IN HOW ROR JUSTIFIES THE DECISIONS THAT ARE
MADE ALL THE TIME - just on the idea that accepted by officials

Dworkin has highly refuted this aspect of Harts theory, as the requirement of recognition
of the rule, ‘derives’ from the basis of its ‘pedigree’, and would not applicable to his
theory of law as ‘principles.’33 This is argued to ‘only apply to enacted law and [does]
not apply to [‘principles’] which typically are not enacted law.

DERIVED FROM THE PRINCIPLES - IS THE FORCE OF MORALITY - THAT CAN

JUSTIFY BETTER - COMPARED TO ON AN EXISTING RULE ITSELF TO JUSTIFY

This conclusion is reached because, as previously alluded to, it is a ‘requirement of

justice or fairness’, that ‘principles’ which he deems as standards, must be observed
.
MacCormick and Raz both accept the need for Hart to answer this, and
the former author suggests that a judicial decision needs to be intelligible to the individual the
judgement is rendered for or against - and for this there must be underpinning moral
reasoning. - AS THIS HELPS JUSTFYING COERCION AS WELL

Dworkin is concerned in showing that Hart's answer is simply on how to decide whether a given
legal proposition is true or false; that his interpretive theory shows how judges can give a
correct answer to moral debates

Law and morality justification

HOWEVER IT IS NOT THAT HART HAS NO JUSTIFICATORY AMBIT

AS HE DOES ADMIT THAT THERE WOULD BE CONTINGENT CONNECTIONS
WIHT MORALITY, but not necessary,
As does have the minimum content of natural law - and the fact that there are principles
but not that they are necessary but only that they MAY INCLUDE CONFIRMITY WITH
MORAL PRINCIPLES AND BE JUSTIFIED…
HOWVER HERE ONLY BASED ON A SURFACE LEVEL OF MORALITY - IN THAT
JUST OUT OF SURVIVAL - can justify coercion (HENCE DOWRKIN SAYS THIS IS
SUSPECTING TO MORALITY AND HENCE ACCEPTED THAT CANNOT BE A
STIRCT LEGAL POSTIVIST of separating law from morality altogether)

Hart’s further claim that moral principles can be part of the law – what is known as ‘soft positivism’ – would require,
Dworkin says, making moral judgments in identifying the law, and so would be contrary to Hart’s definition of legal
positivism.

However on one hand - the fact that so inextricably linked with morality - many do not find
convincing
As having to bring subjectiveness into the law - was what postvisim was trying to avoid and now
he brings morality as a central tenet in justifying the law - which often becomes more subjective
when judges use to manipulate and impose their own conviciotns even though he claims this does
not happen.
Further criticism to rule of recognition - does not do its role property - Timothy Macklem
Now to the second point. A key feature of the Rule of Recognition is that it supplies a ‘test for
law.’ But for a test to be adequate, participants cannot be applying different criteria to reach the
same result. In other words, agreement in legal judgment has to be motivated by the same
materials applied in the same way for the Rule of Recognition to be as explanatorily efficacious
as Hart imagined.
n. Every dispute over the terms of a written contract starts with the text. The ordinary meaning of
terms is given prima facie authority. This is rarely the end of the argument but it is the normal
point of departure. This process is not limited to contracts
To give Dworkin his due (although he does not make this point), it is not enough for a Rule of
Recognition simply to identify valid sources of law. 74 Once valid sources have been identified,
they must be construed (i.e., interpreted). Neither Hart nor any of his followers has ever
addressed this issue with the kind of focus it deserves.

ON THE OTHER HAND A THEORY THAT HE HAS THAT DOES STAND FIRMLY TO DATE IS
- SEMANTICS THEORY - PROSOSITION OF LAW AND GROUNDS OF LAW
Dworkin takes issue with the RoR, and all semantic theories in general, in so far as they
suggest (to him) that two parties can meaningfully disagree only when they share the
common criteria of the concept they agree about - THIS IS WITH THE WHOLE
NOTION OF IT BEING RULE BASED AND FIXED AS ASSUMES THAT THEY
WOULD HAVE A FIXED CRITERIA OF VALIDITY THAT CAN ALWAYS BE
SUBJECTED TO AND WOULD HAVE CONSENSUS ON

This is so much for HART CLAIMING THAT IS AN OPEN TEXTURE AND SHUOLD
LEAVE DISCRETION FOR FUTURE CASES - however seems to be illogically
confined sometimes where difficult to explain how they can always have a common idea
on the law
AS THIS IS IN LINE WITH DWORKIN - whole conception that the law is an
argumentative attitude - to actually consider the case fully often by constructive
interpretation judges need to agree on the criteria of validity as well whic would not be
fixed by any ROR WHATSOEVER

As would do so with integrity - DWORKIN BOTH BY JUSTFYING THE FIT AND

THE SUBSTANCE - hence judges have to go out of their way - as often the test itself
wodl be contrvesrsial - BUT JUST BECAUSE IT IS CONTROVERSIAL DOES NOT
MEAN THAT IS EXERCISING DISCRETION

AS THERE SHOULD ALWAYS BE ROOM FOR THOERITICAL DISAGREEMENTS

IT IS TOO IMPRATICAL that they would aways share the common concept and agree
about it
Elmer's Case and McLoughlin, where the judges are
clearly in disagreement not just about what the law should be, but rather what the law is

Hart's response, he suggests, would lie in the penumbra of uncertainty - that these are
borderline cases, and the judges are simply disagreeing verbally,
However this does not seem to be satisfactory - must hide their discretion in deciding
hard cases

As it is said that they usually do decide on what the test should be - but hide thie
discretion in deciding hard cases behind a smoke screen of leglisaltive intent and
construction of precedent - BUT DWORKIN SAYS NO NEED TO DO THIS WHEN
ALL CAN BE BASED ON CONSTRUCTIVE INTERPRETATION

Hart's second response is slightly more powerful: that Dworkin conflates the meaning
of a concept with the criteria for its application; that even if the validity of the
propositions of law were to be determined by a set of criteria, that only determines what
the law requires not what law requires. This was an objection raised by Himma,
Coleman and Kramer
Moreover it seems that rule of recognition can apply univresally in any legal system
- BUT DWORKIN EXPECTING JUDGES - NOT ALL JURIDISTIONCTIONS
WOULD BE PERMISSIBLE - SMITH RAISES THIS ARGUMENT
THE WHOLE RULE AND PRINCIPLE - it seems that since often even among
principles - is exercising discretion despite their difference they are excised in the
same manner therefore permitting judicial discretion which he was in reality against
Hart says it is not that in open texture - judges binldy chose among alternatives
Also often critisized for not knowing what exactly HARD CASES ARE - and yet it is
always the case that it is simply often regards to as a hard case…
HENCE IT SEEMS THAT THERE ARE SOME ASPECTS THAT DWORKIN MAY NOT
ANSWER TO SO CONVINCING TO SOME EXTENT IN MANY AREAS BUT THERE
ARE SOME AREAS OF CRACKS HERE AND THERE…

DWORKIN AND POSITIVISM

Main distinction that puts him in some kind of a venn diagraem center - from all the other
positivists - is that he evaluates the law based on morality which all other postivists are
against - and yet he still remains as a positivist

Dworkin remained a persistent and unyielding critic of all forms of legal positivism

Part of the success of Dworkin’s critique was a function of its elegant simplicity. Utilizing
just a few cases, Dworkin was able to demonstrate that principles play an important role
in law, particularly in hard cases. A case as simple as Riggs v Palmer41 showed that
Hart’s description of law as a system of rules was simply inaccurate. It would take some
time for Hart’s followers to take in Dworkin’s criticism and mount a persuasive reply.
After a decade of replies, the conventional wisdom was that positivism could
accommodate Dworkin’s claim that moral principles played a role in law. Inclusive legal
positivism was the result of Dworkin’s critique.

AS THIS IS THE MOST STRONG TENET - AND HOW HE ARGUES POSITIVISM AS A

WHOLE IS THE FACT THAT there are not much disagreements that it envisages - do not
fully evaluate the law - theoretical disagreements - statue plain meaning even if absurd
results..

As it is not just factual disagreements that can be resolved by the law, but the complicated
ones that often lawyers make - IT SEEMS POSTIVISTM RESPONDS TO THIS BY
STATING THAT IT WOULD ALWAYS BE AGREED UPON AND ONLY THE SPECIFIC
CIRCUMSTANCES CAN BE DEBATED ON,,,BUT THIS DOES NOT HOLD WATER

As it seems in hard cases - would really engage in these empirical disgarements where
cannot find answers in books

The various judges and lawyers who argued our sample cases did not think they were
defending marginal or borderline claims. Their disagreements about legislation and
precedent were fundamental; their arguments showed that they disagreed not only about
whether Elmer should have his inheritance, but about why any legislative act, even traffic
codes and rates of taxation, impose the rights and obligations everyone agrees they do;
not only whether Mrs. McLoughlin should have her damages, but about how and why
past judicial decisions change the law of the land. They disagreed about what makes a
proposition of law true not just at the margin, but in the core as well

TD is a fundamental feature of legal practice, one that Dworkin believes positivists

cannot account for

he rule does this most often by supplying criteria of validity which Dworkin calls
matters of pedigree and which refer not to the content of the law but to the manner and
form in which the laws are created and adopted; but as I have said (p. 250) in addition
to such pedigree matters the rule of recognition may supply tests relating not to the
factual content of laws but to their conformity with substantive moral values or
principles. Of course in particular cases judges may disagree as to whether such tests
are satisfied or not and a moral test in the rule of recognition will not resolve such
disagreement. Judges may be agreed on the relevance of such tests as something settled
by established judicial practice even though they disagree as to what the tests require in
particular cases

As whether this was in TENNESSE VALEY AUTHOIRTY V HIL - or in riggs v palmer

itself - it is clear that often do not just disagree on surface level - BUT ON
FUNDEMENTAL GROUNDS OF LAW - that postivist do not account for

Because positivism lacks the resources even to make sense of debates about the
grounds of law, it must be rejected as a proper account of the nature of law. - DENNIS
PATTERSON

Initial response is that techncialy they are making discretion behind smoke screens - on
the test of validity itself - WHY SHOULD JUDGES BE SEEN AS LYING - MAKE IT
SIMPLE JUST FROM THE CONSTRUCTIVE INTERPRETATION

However this has been repsponded to - THAT EVEN WHEN DECICIDINGON

VALIDITTY IS ONLY ON WHAT THE PARTICULAR LAW SHOULD BE NOT WHAT
THE LAW IS - BRIAN LEITER

POINT NO 2 - Dworkin maintains that Hart and positivists generally have a “plain
fact” view of law. The view has two core components. First, the grounds of law are fixed
by consensus among officials

Positivism assumes that all officials agree on the grounds of law.

The fact remains that Hart and his followers simply have not gone far enough in
generating a proper account of legal interpretation

As this can be by virtue of the fact that IS AGAINST MORALITY - AND HER DWORKIN
IS A SUPPORTER OF ONE IN THE DECISION-MAKING PROCESS AS THINKS IT IS
VITAL

- As then only would be able to justify the decision made - as difficult to justify the
decision made based on another rule - does not quite fit in well - HENCE TO
JUSTYF BASED ON LEGAL HISTORY, INTEGRITY , POLITICAL MORALITY -
WOULD NEED THE USE OF THE PRINCIPLES TO JUSTIFY

Despite the fact that Dworkin’s attack has strong roots, both schools of legal positivism
(exclusive and inclusive) have arguably parried his critique. The former by preserving the
Pedigree Thesis and segregating valid and applicable legal norms to justify the fact that
judges incorporate moral principles[15] and the latter by arguing that in “hard cases” there
is a consensus convention among judges to follow moral principles in such cases and
hence those principles are legal principles.[16] However, Dworkin rejects such idea, and
further pushes his attack by undermining the foundations of legal positivism, targeting
the fact that judges do not follow conventions, as such idea does not offer a plausible
account for the existence of disagreements.[17]

HART - ONLY FOCUSED ON BEING RIGHT AND WRONG - WITHOUT THE USE OF
MORALITY TO JUSTIFY , HOWEVER IT CAN BE SAID THAT ALSO HAS PRINCIPLES AND
MINIMUM CONTENT - BUT BY THIS WAY STILL ACCEPTING MORALITY - CANNOT BE
SAID TO BE POSTIVIST BY HIS DEFENTION - SHOWS HOW DWORKIN ATACCK WORKS -
AS AFTER HIS ARGUMENT - PSCRIPT HART ACCOUNTED FOR MORALITTY IN HIS RULE
OF RECOGNITON……
GENERAL CRITICISMS - BASED ON SOCIAL PRESURE, ACCEPTANCE OF OFICIALS -
OBIDIENCE - NOT ENOUGH - LAW AS INTEGIRTY IS VITAL AND NEEDED - ARGUMENT
OF FIT AND SUBSTANCE - ADVANCING THE MORALITY - HENCE SHOWS NEED MORE
ROOM FOR MORALITY - MAIN TENET OF HOW DWORKIN ATTACKS POSITVITISM

IDEAL JUDGE - DWORKIN

Harris summed up Dworkin's theory in following words: The trust of Dworkin's theory is that,
whenever the materials can be read in different ways, judges should not simply give effect to
their personal views. Instead, they have a responsibility to apply their conviction about what the
morality of the community is committed should be understood to entail, as long as these
convictions 'fit' the legal materials, they reveal what the law is. This process is called law
discovery and not legislation.

Dworkin describes an imaginary judge with “super-human skills” called Hercules. Hercules as a
model of perfect judge in deciding hard cases begins by constructing a theory of law applicable
“in its best light”.

Dworkin illustrated his theory with an imaginary judge, Hercules. Because Hercules acts on the
basis of the premise that the law is a seamless web, Hercules is required to construct the theory
that best fits and justifies the law as a whole in order to decide any particular case. Given the
holistic assumption that a change anywhere in the law can produce consequences
everywhere, Hercules must constantly revise his theory—checking to assure himself that a
recent change in the law of trusts does not have consequences for the best interpretation of
the reasonable person standard in torts

Hercules Judge should only ‘interpret the law’ using his magic wand of principles

To the Hercules judge law is all about interpretation and not just applying the law but
interpreting it as a whole to derive the right answer through the exercise of constructive
interpretation. As the ideal judge cannot just pick out the case from the relevant shelf, should go
beyond and like a lawyer consider different opinions and arguments.

As in comparison to Hart, Dworkin thinks that judges cannot exercise discretion to fill in the
gaps. He moreover submits there will be no gaps and the law can always be ‘found’ through
principles. As Marshall Cohen in “Ronald Dworkin and contemporary jurisprudence” put it,
Dworkin objects to this judicial legislation as it is inconsistent with the constitutional doctrine of
separation of powers.
Importance of principles ; - MORE FLEXIBLE THAN RULES - JUDGES SHOULD USE THIS TO
GRANT RIGHTS

As a court, when it has to decide on a hard case, will draw on moral or political standards,
principles and policies in order to reach the appropriate decision. Dworkin (‘The Model of Rules
I’) argues; the continually changing nature of law means that it should be analysed in terms of
justice, legal principles and morals, not just plain facts.

As in regards to the importance he accords to principles, since it is flexible and often one can
contradict each other, it readily works to give the right answer in comparison to rules as seen in
Riggs v Palmer. As ‘no man should ever profit from his own wrongdoing’ even though was used
to prevent an absurd outcome, it can also be stumped in adverse possession cases.

AT THIS STAGE UNDERSTOOD THAT - CAN ONLY DECIDE ON PRINCIPLES NOT POLICY -
ADVANCING A COMMUNITY GOAL - THIS IS NOT THE JUDGE TASK - SHOULD NOT INTERVENE
AND DECIDE ON POLICY.

Ideal judge should exercise the art of constructive interpretation to derive at the ‘right answer’

Hence so far it seems that may appear to be useful and not vice versa, especially when he
breaks it up into stages. Dworkin argues for a “constructive interpretation” and an interpretive
dispute can be divided into “pre-interpretive stage”, “interpretive stage” and “post-interpretive
stage”. Dworkin sees legal theory as part of society’s reflection upon the scope of a presumed
duty to obey and apply the law.

As should derive all the correct relevant constellation of legal principles and choose the relevant
ones in adducing weight to it to derive at the right answer.

This would all derive in forming the one right answer ;

Instead, in his major works ‘Law's Empire’ and ‘Taking Rights Seriously’ he propounded his
theory of adjudication, the rights thesis. His theory claims that the enterprise of law
presupposes “right answers” even in “Hard Cases”.

Hence, it is a question of finding the right answers and the process involved in deciding hard
cases which includes the process of constructive interpretation.
However how would an ideal judge choose the right interpretation? They would be guided by
integrity by doing so. Hence shows how useful for judicial interpretation as does not just simply
expect the judges with no recourse to adduce weight to principles but there are boundaries and
considerations for judges to factor in. this boundaries that is constrained by is referred to as
LAW AS INTEGRITY. AS JUDGES ALWAYS WOULD BE CONSTRAINED BY THE LAW.
Instead, when interpreting law judges must be guided by integrity.

HOW JUDGES SUPPOSED TO APPEAL TO INTEGRITY - DETAIL EXPLAINED HOW IT JUSTIFIES

COERCION - IMPORTANCE GIVEN TO IDEAL JUDGE - HAVE TO APPEAL TO INTEGRITY

The essence of integrity requires the law to be “fit” (consistent with settled laws) and contain
substance (treating people as equals).

For Dworkin, legal argument in most hard cases will develop as the result of a tension between
two dimensions of an argument, one that argues towards a fit with what is accepted as settled
law, the other that argues towards substantive issues of political morality.

Hence in doing so , judges are expected to form a moral fabric of society which would allow
judges to identify the interest that would be regarded as important to preserve. Hence would
have to identify the whole precept of integrity and conscientiousness of the society and ensure
that decisions are made at par with this cumulatively

As a society would accept integrity as a moral virtue to justify its moral authority to assume and
deploy a monopoly of coercive force. Hence if it is to the point of justifying coercion, then
integrity can become very useful.

Moreover in balancing the tensions between ‘fit and substance and morality in the law , an
ideal judge should not strictly bring in his own convictions in the decision-making process and
his own beliefs should strictly stay out of the process.

In complying with integrity judges are also expected to because policies arise with the whole
society (a matter concerning the government) and changes so frequently, judges should not
find the right answers based on policy grounds and instead should only decide on principles.
He further drew a distinction whereby policies are decisions that look towards the goals of the
community (forward looking) whereas principles are proposition that describe rights. To once
again confirm to not superseding parliament’s role ideal judges should not decide on policy.
Hercules judge, a movie character or a judge presiding in court?

However, this all seems to be a nice image of a Hercules judge and a good movie character. But
does this translate to reality, or is an imaginative task to expect from the judge?

As it has been contended that the most intellectual judge like Richard Posner can give
explanations and produces a theory that actually fits with the law in specific fields of the law,
but to do so to fit and justify the whole of law itself would take ‘longer than a human lifespan
and most of work would be terribly dull’.

CRITICISMS FOCUSING ON THE JUDGE TASK BEING TOO IDEAL DWORKIN EXPECTING TOO
MUCH THIS DOES NOT HAPPEN IN REALITY

1.As is it really an easy task to give an overall consistent account of the law in the country and
form out the moral fabric of the society by one judge residing in court? Dworkin says Hercules
but in my opinion a stronger delusional force is needed. As there is a possibility that the moral
fabric is so worn out and dysfunctional (legal system) that no moral case for integrity can be
made for it as per Waldron.

2. JUDGE SUPPOSED TO BALANCE THE FIT AND SUBSTANCE - APPEAL TO INTGRITY - AS EEVN
WHEN ATTACKED THAT BY SAYING THAT DIFFERENT INTERPRETATOINS - RECONCILED BY
INTEGRITY - IS REINTRODUCING MORALITY - BUT SAID THAT IT CAN BE BALANCED - HOWEVER
CAN IT REALLY BE BALANCED BY THE IDEAL JUDGE FROM THE TWO EXTREMES BY STRICTLY
REMAINING OBJECTIVE AT THE SAME TIME.

FIRST OF ALL IT SEEMS THAT CANNOT EVEN BALANCE BETWEEN FIT AND SUBSTANCE NEATLY -
due to distinction itself not being neat - which finnis insinuates - AS FAILED TO PROVIDE
GUIDANCE AS TO HOW FIT A PPRINCPLE SHOULD BE - TOO IDEAL FOR JUDGES TO KNOW
HOW…

THIS IS MORE SO BECAUSE OF THE USE OF PRINCIPLES AND HEIGHTENED IMPORTANCE TO IT -

AS BASED ON SUBJECTIVE, BUT APPLIED IN AN OBJECTIVE WAY - HOW ARE JUDGES SUPPOSED
TO UTILISE EFFECTIVELY AND REMAIN NEUTRAL
Hence to balance these tensions often no choice, the ideal judge is not so ideal anymore and
resorts to his own convictions to resolve the matter.

As Duncan Kennedy admits that on one hand, Dworkin emphasizes objectivity in decision
making, on the other hand, Dworkin puts decisions onto a moral basis. According to Dworkin
"the judges should not choose the interpretation that applies their 'own moral and political
convictions'.However Duncan comments “ I personally don't see what else they could apply"

THEY WILL MIX THIER IDELOGOY AND PRINCIPLES BECAUSE OF THE AMOUNT OF MORALITY CAN
BE MANIPULATED TO SUIT THIER PERSONAL CONCLUSIONS - POSNER

AS IDEAL JUDGE WOULD JUST IMPORT THIER ONW VALUES INSTEAD OF AKSING QUESTIONS
ABOUT THE INTELLECTUAL AND SOCIAL GENEALOGY OF THOSE VALUES.

AS HENCE IT IS JUST A FORM OF JUDICIAL ACTIVISM WHICH IS THE ACTUAL REALITY - NOT THAT
PRINCIPLED MANNER IN RIGHT PROPRTIONS OF FIT AND SUBSTANCE - SHOWS HOW GOES
AGAINST COMPLETELY

Does an ideal judge not decide on policy?

Moreover going in the same line of not being able to balance the tension judges ‘ideal’ do
inherently decide on policy. For example, national emergency (Madzimbamuto v Lardner-Burke)
and the floodgate litigations argument (Anns v Merton LBC).

As this can be inherently seen in D v National Society for Prevention of Cruelty that often from
pressures with government itself would have no choice but to decide on policy no matter what
creative ways Dworkin tries to justify that it is right for the future parties or consequalist rights.
As a judge is still deciding on policy, which by right Hercules judge should not do so which is why
not useful for judicial interpretation practically.

AS OFTEN NOT EVEN BECAUSE OF PRESUREDS BUT PURPOSEFULLY DUE TO THE LOOSE NATURE
OF PRINCIPLES OFTEN POLICY CAN BE DISGUISED TO LOOK LIKE PRINCIPLES AND DECIDE - EVEN
THOUGH WOULD ACTAULLY BE POLICY - SHOWS THERE IS NO LOGICAL BASIS FOR DISTINCTION
IF AN IDEAL JUDGE DOES NOT EVEN MIND THE DISTINCTION - ALOCK CASE
OFTEN MAY NOT EVEN DERIVE AT EITHER A RIGHT ANSWER, OR IF DOES SO - IT IS AN EVIL ONE

(which is what the law or judges should do, how does the ONE SO RIGHT ANSWER
AFTER CONSIDERING ALL PRINCIPLES AND POLICIES : end up giving an answer that is
evil?
What should the judges do when they are legally required to send captured slaves back
to the South? In order to maintain the integrity of the legal system, the judges should
send those slaves back but to achieve the goal of justice, judges should set the slaves
free. Hence, the outcome of the judgment represents a serious conflict between
integrity and justice.
but a Hercelud judge must always appeal to integrity?
So interpretivism produces an ideal, but it is not the outcome that would be the best in
all possible worlds, which is how we ordinarily think of ideals
AS JUST BECAUSE APPAEL TO INTEGRITY - MAY NOT ACTAULLY BE THE RIGHT ANSWER -
TOO IDEAL.

Often do not even derive at one right answer - IDEAL JUDGE TOO HIGH STANDARD

Moreover it seems that just for the sake of arriving at a right answer would do so : that
the answer may not even be true to integrity which Lord Hoffman contends:
As Lord Hoffmann said integrity does not demand of us pretend that there is a right
answer when there is none.
As Hart contest that there is no point in saying that you would derive at a right answer if
you cannot find, prove and demonstrate it. As often believing that there may be a right
answer would be precept of integrity itself
Lord Hoffman of Airedale NHS v Bland where he said “there is no formula for
reconciling this conflict of principles and no easy answer” when using Dworkin’s theory
to solve the hard case. Hence often even if principles exist may not be able to ‘find’ with
integrity the right answer.

Conclusion Overall, as seen in the case of Airedale NHS v Bland where Lord Hoffman
contended that there is “no formula for reconciling the conflict of principles and no easy
answer” this goes against the main aspects of what an ideal judge stands for and is supposed to
do in terms of using his magic wand and getting the right answer. However, if this does not
translate to practical realities then it can be understood that Dworkin’s theory is not useful for
judicial interpretation.

Thus, in conclusion, it may be said that Dworkin’s theory of law is of somewhat of an idealistic
theory. His embodiment of the fictitious judge Hercules himself, in a superhuman light, although
knowing full well that such characters do not exist in real life, shows that the theory of
adjudication expostulated by him is not one that is based on practical reasoning