[ Pobierz całość w formacie PDF ]
the judge, whose judicial function is then that of a creative legislator. He or
she determines what the right answer in this case ought to be. It would seem
that judges are then supplementing their legal knowledge and expertise with
their own moral perceptions, that they have a free hand to refer to their own
instincts for justice and equity, and so on. It is the freedom or judicial caprice
seemingly sanctioned by this view of hard cases that Dworkin is opposing as
contrary to the spirit of common law, which requires a degree of principled
consistency in its succession of decisions.
Hercules and moral objectivism
Dworkin s advancement of the one right answer thesis is an integral part of
his wider defence of moral objectivism against moral scepticism and rela-
tivism. This moral objectivism is presupposed by the one right answer thesis
and by the rights thesis. The claim that answers to moral problems or
conflicts can be right or correct , and the related claim that some rights
prevail over others, is objectivist in the sense that the standards of morality
or justice are taken to be independent of human decision or convention.
It is to illustrate this principle of moral objectivity as a model for legal
reasoning that Dworkin introduces the mythical judge Hercules. This is the
name he gives to an imaginary judge of unlimited intellectual power, for whom
the failings of memory and the pressure of time would be no problem. Without
any such impediments, Hercules would find the unique correct answer to every
hard legal case, because he would have all the relevant information about the
entire history of the rules and principles of the common law, and about the
facts and competing claims in the case before him. With these superhuman
powers he would not simply follow precedent; he would reason his way to the
correct solution by constructing a complete theory of law and what it required
for the case in hand. His interpretive reasoning would be guided by the require-
ment of best fit with all relevant legal precedent, and at the same time by the
criterion of best light , finding the interpretation that provides the best polit-
ical reading of past law. Both criteria presuppose moral objectivism, the
assumption being that there can only be one morally sound interpretation of
56 What is law?
precedent. Hercules symbolises legal reasoning at its best because, with
maximum knowledge of the law, he can justify his decision by legal precedent
and balance the relative weight of the relevant principles and act accordingly,
endorsing the rights that are entitled, on the balance of arguments, to prevail.
Above all, Hercules will see that he has no discretion to act otherwise.
Dworkin s hard cases
From the many morally controversial cases in English and US law cited by
Dworkin, the one he has made pivotal to his argument is the relatively minor
one of Riggs v. Palmer (New York, 1889). The relevant facts of the case were
as follows. Elmer Palmer was a 16-year-old who successfully prevented his
grandfather from changing his will, of which he himself was the main bene-
ficiary, by murdering him. After serving a prison sentence, there appeared to
be no legal obstacle to prevent Palmer from claiming his inheritance. This
was challenged in court by relatives (who were minor beneficiaries), but the
judge upheld Palmer s claims because the formalities of law in relation to the
will had been satisfied. This decision was overturned by a majority decision
in the Court of Appeal, depriving Palmer of his inheritance, on the grounds
that no one should profit from their own wrongdoing.
It is not difficult to see why Dworkin regarded this case as a striking illus-
tration of his concept of law as a complex of rules, principles and policies.
The central conflict in the case was between the black-letter legal rules of
probate relating to the validity of wills and legal inheritance, and the
unwritten principles of the common law. The case also provides an excellent
illustration of the practical implications of the competing theories of law. A
number of points should be noted before we examine these.
First, it seems intuitively obvious, given the prevailing moral views on
such cases, that anyone who murders for profit thereby forfeits their right to
the proceeds. Nobody would suggest that a man convicted for armed
robbery should keep the money that he had hidden before serving his
sentence. The difference with Palmer, of course, is that he appeared to be
legally, if not morally, entitled to it. Second, it should be remembered that
two judges did not find it intuitively obvious that he should forfeit the right
to inherit, or at least not obvious enough to find against Palmer. One
dissenting judge declared that it would be bad social policy to punish
someone twice for the same crime. There had also been earlier cases similar
enough to Riggs v. Palmer to be cited as precedent, in which apparently
shocking judgements had not been appealed. In Owens v. Owens (Adams
1992: 138), for example, a widow convicted of being accessory before the
fact to the murder of her husband was nevertheless granted entitlement to
the legally specified portion of his estate.
Third, many still believe that unworthy claims like these have to be upheld
for the sake of legal consistency. If the current state of the law points in an
unwelcome direction, it can always be amended for future cases. This might [ Pobierz całość w formacie PDF ]
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the judge, whose judicial function is then that of a creative legislator. He or
she determines what the right answer in this case ought to be. It would seem
that judges are then supplementing their legal knowledge and expertise with
their own moral perceptions, that they have a free hand to refer to their own
instincts for justice and equity, and so on. It is the freedom or judicial caprice
seemingly sanctioned by this view of hard cases that Dworkin is opposing as
contrary to the spirit of common law, which requires a degree of principled
consistency in its succession of decisions.
Hercules and moral objectivism
Dworkin s advancement of the one right answer thesis is an integral part of
his wider defence of moral objectivism against moral scepticism and rela-
tivism. This moral objectivism is presupposed by the one right answer thesis
and by the rights thesis. The claim that answers to moral problems or
conflicts can be right or correct , and the related claim that some rights
prevail over others, is objectivist in the sense that the standards of morality
or justice are taken to be independent of human decision or convention.
It is to illustrate this principle of moral objectivity as a model for legal
reasoning that Dworkin introduces the mythical judge Hercules. This is the
name he gives to an imaginary judge of unlimited intellectual power, for whom
the failings of memory and the pressure of time would be no problem. Without
any such impediments, Hercules would find the unique correct answer to every
hard legal case, because he would have all the relevant information about the
entire history of the rules and principles of the common law, and about the
facts and competing claims in the case before him. With these superhuman
powers he would not simply follow precedent; he would reason his way to the
correct solution by constructing a complete theory of law and what it required
for the case in hand. His interpretive reasoning would be guided by the require-
ment of best fit with all relevant legal precedent, and at the same time by the
criterion of best light , finding the interpretation that provides the best polit-
ical reading of past law. Both criteria presuppose moral objectivism, the
assumption being that there can only be one morally sound interpretation of
56 What is law?
precedent. Hercules symbolises legal reasoning at its best because, with
maximum knowledge of the law, he can justify his decision by legal precedent
and balance the relative weight of the relevant principles and act accordingly,
endorsing the rights that are entitled, on the balance of arguments, to prevail.
Above all, Hercules will see that he has no discretion to act otherwise.
Dworkin s hard cases
From the many morally controversial cases in English and US law cited by
Dworkin, the one he has made pivotal to his argument is the relatively minor
one of Riggs v. Palmer (New York, 1889). The relevant facts of the case were
as follows. Elmer Palmer was a 16-year-old who successfully prevented his
grandfather from changing his will, of which he himself was the main bene-
ficiary, by murdering him. After serving a prison sentence, there appeared to
be no legal obstacle to prevent Palmer from claiming his inheritance. This
was challenged in court by relatives (who were minor beneficiaries), but the
judge upheld Palmer s claims because the formalities of law in relation to the
will had been satisfied. This decision was overturned by a majority decision
in the Court of Appeal, depriving Palmer of his inheritance, on the grounds
that no one should profit from their own wrongdoing.
It is not difficult to see why Dworkin regarded this case as a striking illus-
tration of his concept of law as a complex of rules, principles and policies.
The central conflict in the case was between the black-letter legal rules of
probate relating to the validity of wills and legal inheritance, and the
unwritten principles of the common law. The case also provides an excellent
illustration of the practical implications of the competing theories of law. A
number of points should be noted before we examine these.
First, it seems intuitively obvious, given the prevailing moral views on
such cases, that anyone who murders for profit thereby forfeits their right to
the proceeds. Nobody would suggest that a man convicted for armed
robbery should keep the money that he had hidden before serving his
sentence. The difference with Palmer, of course, is that he appeared to be
legally, if not morally, entitled to it. Second, it should be remembered that
two judges did not find it intuitively obvious that he should forfeit the right
to inherit, or at least not obvious enough to find against Palmer. One
dissenting judge declared that it would be bad social policy to punish
someone twice for the same crime. There had also been earlier cases similar
enough to Riggs v. Palmer to be cited as precedent, in which apparently
shocking judgements had not been appealed. In Owens v. Owens (Adams
1992: 138), for example, a widow convicted of being accessory before the
fact to the murder of her husband was nevertheless granted entitlement to
the legally specified portion of his estate.
Third, many still believe that unworthy claims like these have to be upheld
for the sake of legal consistency. If the current state of the law points in an
unwelcome direction, it can always be amended for future cases. This might [ Pobierz całość w formacie PDF ]