February 19, 2015 The Models of Rules IRonald Dworkin Dworkin’s Position - Model of rules can’t account for constraints on judges in hard cases - Principles and policies are also part of law, and judges must respect them - Judges decide cases not covered by rules in accordance with (principles of) law, not by use of discretion - If principles are not considered part of law, then there are few binding rules of law, because rules can be overturned - No test for principles other than acceptance o Thus, there is no ultimate test of law in the form of a rule of recognition Rules, Principles, and Policies - A “policy” is a 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). - A “principle” is 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. - The difference between legal principles and legal rules is a logical distinction. o Both sets of standards point to particular decisions about legal obligation in particular circumstances, but they differ in the character of the direction they give. Principles and the Concept of Law - The rule does not exist before the case is decided. o The court cites principles as its justification for adopting and applying a new rule. - The origin of these as legal principles lies not in a particular decision of some legislature or court, but in a sense of appropriateness developed in the profession and the public over time. - So even though principles draw support from the official acts of legal institutions, they do not have a simple or direct enough connection in terms of criteria specified by some ultimate master rule of recognition. - The difficulty raised for Hart’s general theory is because he does not attempt to set out the criteria a master rule might use for his purpose. o It cannot use, as its only criterion, the provision that the community regard the practice as morally binding, for this would not distinguish legal customary rules from moral customary rules, and of course not all of the community’s long-standing customary moral obligations are enforced at law.o If, on the other hand, the test is whether the community regards the customary practice as legally binding, the whole point of the master rule is undercut, at least forthis class of legal rules. Puzzle - Main tenets of positivism: o Law consists of rules with pedigrees o The law stops where these rules stop  Cases not covered by rules must be decided through discretion o Legal obligations arise (only) from rules. o Hart adds primary/secondary rules, concepts of validity and acceptance - Dworkin challenges all of these. Riggs v. Palmer - Can’t be accounted for by model of rules - Difference between rules and principles o Rules are all or nothing, principles have weight and don’t function automatically o Look at how they work in Riggs and Henningsen cases o Rules have exceptions or are declared invalid  Principles retain validity even when they don’t prevail o If two rules conflict one must be invalid  Not so for principles - Rules containing words are reasonable, refer to principles - Courts use principles to modify rules Two Options - Treat principles as rules o Some are binding as law, and judge violates law when he does not apply them - Say that in applying principles, judge goes outside law Discretion - Makes sense only in context of restriction - 2 weak senses: o Standards require judgment o Final authority to make decision - Strong Sense o Not bound by standards (though can still be criticized for rationality fairness and effectiveness. - Which of these senses do positivists intend? o No discretion when clear rule available  Only use of judgment This would be a tautology- Idea of discretion would add nothing o Strong Sense:  Positivist can argue in several ways that principles don’t control decivions - Principles can’t be obligatory o Critics would say it was duty of judge to take principle into account - Principles don’t determine particular result but can be criticized for wrong assessment of weight of principles on each side - Principles inherently controversial can’t show deductively, but can make a case for authority of a principle - Idea of principles is incompatible with idea of ultimate test for binding law like Hart’s rule of recognition - Why does Dworkin say that if principles are not binding on judges than few rules are either? o Courts change rules  If this is discretionary, there are no limits on authority of judge - Is there a test for principles, like the rule of recognition? o No pedigree, no formula - Distinction between acceptance and validity does not holdCustom - If only morally binding, then everything would be law - If regarded as legally binding, acceptance rather than pedigree for validity - Same problem for principles o And then rules, which owe their force to acceptance of principles, also lack test for validity Riggs v. Palmer: Facts of Case - Man to inherit from grandfather who he killed in order to do so - Law says will is valid, must be enforced - Do you think the will should be enforced? Why or why not? o Judge says will should not be enforced. Where does he get the idea he can do this? Ishe just making it up?  Realist: judge does whatever he wants- Rule of law is a myth  Natural law theory: do what’s right, thus okay to disregard rules  Positivist (Austin/Hart): judge uses discretion in area where law is unclear, or simply disregards law to do what’s right  Dworkin: appeals to principle that is part of law Riggs v. Palmer (1899) Facts- Young guy kills his grandfather in order to get his inheritance, now wants his inheritance o Notes that will was duly executed, will laws say nothing about murder Interpretive Arguments - From Plaintiff o The purpose of wills is for people to dispose of their property as they like, testator clearly expressed his desire to give Palmer his property, no reason to undo that by Palmer’s actions - Legislative Intent o Cannot be intent to benefit murderers - Statutory Purpose o Purpose of will is to allow testator to dispose of property as they like  Arguably he may not have