Dworkin accepts that the law does not only consist of

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Dworkin accepts that the law does not only consist of rules, but that it also includes principles, values and standards. If a judge can use these intangible things in a specific case, what stops him from using his own opinions?
Critical Law Studies CC © Legal Philosophy Notes – Semester 1 2017 CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is strictly prohibited and constitutes a breach of copyright. 40 The answer lies in his view of constructive interpretation. Constructive interpretation q Judges don’t blindly follow rules (Bentham, Austin and Hart). q Judges don’t fill in gaps using their own discretion (American realists). According to Dworkin, a judge must search for the best interpretation of the principles in legal material as a whole. Precedent: A judge is someone who has knowledge of the law (statutes, textbooks and cases) This knowledge qualifies the judge to adjudicate on the next case that comes before him by means of an interpretive process that harmonises his current decision with the preceding decisions. Dworkin looks at the difference between: rules and principles . The problems with rules, Dworkin explains, are that they apply in an all-or-nothing fashion. If they apply they must be enforced , but if they don’t, nothing is left. Dworkin insists, principles are not conclusive = they incline a decision one way or another. Principles contain arguments of justice and fairness, which gives them a dimension of weight , which the rules do not have. Dworkin believes that the law consists of rules, principles and standards – the judges role is more creative without being legislative, because they only use existing legal material to come to a decision = judges aren’t making law but applying it more creatively. This is in line with the separation of powers doctrine in which it is the task of the court to interpret legal material in light of the Bill of Rights. Judges have a creative law making function in the form of precedent The law provides the only correct answer for every hard case. There is therefore no necessity for independent discretion, which allows the judge to search for answers outside of law (like the American realists suggested Dworkin believes that, if a judge had to decide a case, he would first of all apply the rule that fits the facts. If more than one rule fits, the judge will look for the principle behind the rule. The principle can be found in the history and tradition (precedent) of every legal system. The principle will indicate which rule best fits the current situation. It therefore gives value or weight to one rule or the other.
Critical Law Studies CC © Legal Philosophy Notes – Semester 1 2017 CLS notes do not replace prescribed materials. Publishing, sale and/or distribution of CLS notes in any manner or form is strictly prohibited and constitutes a breach of copyright. 41 Values in the constitution can be interpreted without reverting to politics

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