Philosophy of law- 2nd exam: A1 and B2

I have an exam in my philosophy of law class tomorrow. The essay questions were handed out a week ago, and I just recently outlined some potential responses to them. (During the actual exam, they are to be answered without the aid of notes.) I figured I'd post them or else I'd never make any other use of them except to benefit my personal understanding.

I did this once before but after writing them:
i. Two recycled essays

I'm not 100% certain that everything is accurate, as it reflects a course that covers a limited range of readings and is presented in light of the historical development of jurisprudence, rather than jurisprudence conceptually unabated.

Okay, so:

Question A1: Dworkin (in Law's Empire, ch. 7) discusses some of the important features of common law reasoning. Lay out Dworkin's account and criticize it.

-The authorial interpretation of law provided by Dworkin ('law as integrity') roughly operates on the assumption that the legal and judicial history of a state were written by a single author, or, perhaps more accurately, that they exist as a continuous narrative, hence they exhibit some consistency in principle when viewed as a holistic body of law.
-These past political events reflect 'legal principles' in tandem with the law proper ('policy') and ostensibly express the "character" (i.e. political morality) of the body politic.
-In accord with this principle, a judge's post-interpretive decisions ought to be drawn from an interpretation that follows two dimensions: fit and justification. Fit meaning that the possible decision is also be coherently applicable to preceding cases and can be retrospectively judged according to similar standards (as much as it is possible), and justification meaning just that: that the decision operates effectively from a standpoint of political morality, i.e. justice, fairness, and political due process (althoug not necessarily in its original historical justification... but rather one that demonstrates it in its best light.).
-The test for the judge then becomes whether his or her decision relates to existing political structures and prior decisions in a manner that forms an intellectually coherent whole.
-Dworkin also expresses a desire for judges to use a constructive interpretation in the compartmentalization of law, i.e. the creation of 'local priority', wherein divisions separating departments of law reflect the practice in its best light--in particular by creating normative boundaries that assent with popular conviction. In this case, normative boundaries are used in order to allow for the shifting social practices and moral opinions of the body politic. This promotes predictability and coherence or say says Dworkin's idealized fictional judge, Hercules.
-Local priority should, then, not be turned to unless the compartmentalization has proved to be justified in a similar fashion.
-It follows from this that "hard cases" result from a threshold test of fit that permits multiple localized principles but doesn't discriminate among them.
-Following this, Dworkin argues that localized principles that meet this threshold of fit should be construed as competing, not as contradictory. The two (or more) are "still in play", so-to-speak, but the inquiry shifts toward which one demands priority. After weighing these principles, the one that both fits and justifies BETTER than the rest (meets the judge's criteria of 'expanded fit'... presumably with consideration given to 'BIG' principles like justice, fairness, etc.) is the one that should be the basis for decision.
-Though judges may carry out this test of fit differently, under a given method of constructive interpretation, Dworkin holds that there is only one "right" (or "best") answer.
-Although Dworkin offers some possible objections to Hercules's method, they appear to me as radically imbalanced and not terribly substantive. Reidy's take on Dworkin's second objection ('Hercules is a Fraud'), seems to carry more weight than those provided in LE itself. Namely, how can there be only one correct interpretation (not simply for the plaintiff or defendent) when the dimensions of justification and fit have a tendency to pull in different directions? How does one prioritize them in a morally neutral way in order to reach a certain decision? It seems to me that Hercules's analysis of McLoughlin v. O'Brien suffers from this. Although I agree, morally, with his conclusion, I don't see any explicit method used to determine why value was given priority. The only answer I would foresee would be that this invariably differs among judges' conceptions of law, justice, fairness, etc. and that it is ultimately a matter of discretion.
-A second, but more minor objection, could be that in using the method of 'law as integrity', the application of law (in prioritization and justification) is still retroactive and thus not ideal as well as contingently unpredictable... however, this seems unavoidable in "hard cases", and the method which would avoid this, conventionalism, seems sufficiently unsatisfactory.


Question B2: One of the most contentious issues between Hart and Dworkin is whether judicial discretion (or judicial 'legislation') should be allowed. Discuss this issue carefully and ritically in the light of relevant readings/discussions in this part of the course, using (a) Dworkin, (b) Reidy, chs. 2 & 3, and (c) also Hart's 'Positivism and the Separation of Law and Morals' paper, sect. III, pp. 68-72. Try to come to some sort of balanced overview as to which view (Hart's or Dworkin's) seems best.

-With concern to judicial discretion, Hart emphasizes the significance of the "penumbral" areas that result from the use of general langauge to apply to specific, concrete instances, something that Dworkin refers to (to the dismay of Riedy, who considers the phrase neednessly pithy) as the "semantic sting". This problem with language creates fundamental problems in 'policy' law (especially statutory law) that makes strict literalism and pigeon-holing on the part of the judge implausible--what Hart calls "Blackstone's fiction".
-Consequently, "logic is silent on how to classify particulars." This means that short of resubmitting this dilemma to the legislature (as Joe suggested), a constructive approach becomes necessary.
-This method of interpretation is thus one determined by the judge. Dworkin emphasizes that even though this grants some non-objective discretion to judges, there is not any singular "objective" method available. Even the decision to adhere to a conventionalist line of reasoning, he argues, is chosen due to a political reason on the part of the judge. Thus no alternative practice is free from this objection. So, in the sense that there are multiple interpretive theories available to judges, there is discretion... there is by no means a rigid, existing framework for judges to abide by.
-In this respect, the matter of judicial discretion does call morality into question.. but not in a manner that may properly be termed judicial 'legislation'. As Dworkin makes clear, legislatures need only be concerned with policy, not principle, this is a far cry from the role of the judiciary.
-Although Hart and Dworkin seem to agree that a solution must be a product of constructive interpretation, that does not necessarily pronounce that judges have free reign to decide cases purely in accordance with their personal morality.
-(Hart's views seem more concerned the nature and foundational criteria of law, while Dworkin's seem to deal almost exclusively with a practical judicial understanding of law... in this respect they aren't equally opposed, so the comparison becomes somewhat difficult.)
-In Dworkin's account of 'legal principles', the discretion is lessened (with special effort made on his part to avoid the possibility of "strong discretion"): possible justifications are limited to those that are expressed in existing law through latent legal principles. Decisions are therefore guided in light of these principles, and in accordance with the Herculean 'law as integrity' method. This offers some degree of predictability and legislative deference while still permitting forward-looking criteria inasmuch as it can.
-In this light, Hart and Dworkin seem to have fairly compatible views on the need for judicial interpretive construction. In the case that there are existing differences beyond this, they could be understood as separate interpretive understandings of the "role" of the judiciary, rather than attributed to the presence of fundamental inconsistencies in what 'law' essentially is.


We'll see how it goes...