Wednesday+Sept30+notes

· Reasoning is a normative process · And when we don’t do it well we have to doctor the law · Deliberation is like any kind of recent problem solving · Use a suitable way of solving it and get the right result · OR use a non-suitable result and get the wrong result · Although law is not a cut an precise as that · But Dworkin states that if Deliberation is not done correctly you do not get the law · For Harp – even if a judge decides stupidly, unless or until another court overrules a judge or legislature passes a law that what the judge says it set aside – what the judge says is law. · Besides the rules according to Dworkin we have to think about something that hides behind the law – principles. · The law above us is trying to establish justice and justice assumes that everyone will have somewhat of a limit of action · It seems that judges are making new law – because they are deciding cases. But this is not what’s is really going on · They are deliberating and trying to draw conclusion form principles about what the positive law is really there to do. · They are not changing the law but in fact finding the real law that lies behind the positive law. · Dworkin says what’s really happening is careful deliberation – rethinking the matter with new eyes. Which leads to a decision which will say lets get the law right this time. · Not changing or making the law but just getting it right. · You’ve made the law better because now you have a better expression of the principles that lie behind the rules.

· Dworkin thinks the only law is the positive law and that it would be wrong for judges anyway to expand that law. · Decision about how to read the law actually appears to be part of the law. So Dworkin thinks law is about following rules and these rules are clear an laid down in such a place and courts don’t have the right to intervene in accepted rules as long as these rules are contradicting something else. · The law should satisfy the greatest number of preferences. · The law should allow people to pursue their happiness as far as possible.

The Chain Novel · Dworkin thinks legal reasoning is much like writing a chain novel – works like a soap opera – characters that are consistent over time. · Two considerations a. What went before? b. Best continuation of what the story could be.