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LAW EXTENSION COMMITTEE
UNIVERSITY OF SYDNEY
2004
JURISPRUDENCE OUTLINE
ALL STUDENTS PLEASE NOTE:
The outline below is intended to assist students in following the lectures in the course
and in understanding the recommended reading. The outline is not a substitute for the
lectures and reading. The outline is not intended to be comprehensive. Students who
have merely familiarised themselves with the outline but not attended the lectures and
read the prescribed text and readings will be inadequately prepared for the exam and at
substantial risk of failure.
Commencing with the November 2001 semester, examination questions will increasingly
ask students to apply the concepts and arguments taught in the course to an issue or
problem. Students will be best prepared to deal with the paper who have attended the
lectures or weekend schools and read widely.
LECTURE 2
RONALD DWORKIN: LAW AS INTEGRITY
Ronald Dworkin was born in 1931. He was appointed to the Chair of Jurisprudence at Oxford
University in 1969. His most important work is Laws Empire published in 1986 and he is still
a prolific writer and commentator on the American legal scene.
Dworkin’s work involves an attack on the idea that law and morality are clearly separated
concepts.
Christopher Birch
April 2004
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TYPES OF MORAL THEORY
Consequentalist Moral Theories
Non-consequentialist Moral Theories
Eg. Do what will produce the best outcome for
Eg Do what is right, just, etc without regard to
the largest number of people
consequences
Subjectivist Moral Theories
Objectivism
Eg. Morality only reflects personal
Eg. Morality expresses claims binding on
preferences. We cannot rationally disagree on
everyone. It is possible to have rational moral
moral issues.
disagreements.
Sceptical Moral Theories
Strong Objective Moral Theories
Eg. We cannot prove any particular moral
Eg. We can demonstrate rationally that some
theory is right. There is no such thing as moral
moral theories are better, or that there is moral
truth.
truth or that some moral theories would be
irrational
This table is not an exhaustive way of categorising moral theories.
Dworkin advocates a non-consequentialist theory of moral rights. He believes that moral
claims are at least objective in the first sense described above.
Dworkin’s Criticisms of Positivism
Dworkin’s early essays particularly criticise HLA Hart’s positivist theory of law. This was the
theory that: (i)
law consists of a body of rules;
(ii)
rules have a central core of meaning where their application is clear but with a
penumbra of uncertainty;
(iii)
where cases fall within the penumbra of rules there is no right answer to the legal
question;
Christopher Birch
April 2004
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(iv)
where there is no right answer judges exercise a judicial discretion and make law by
creating a new rule; and
(v)
judges are thus law makers, although they only make law piecemeal.
Dworkin criticised this theory on the following grounds: (i)
there are no gaps in the law, if an existing rule does not prohibit conduct it is lawful;
(ii)
judges do not fill gaps they can only change existing rules or principles;
(iii)
if judges made law in the fashion Hart suggested they would be acting as legislators;
and
(iv)
if there was no right answer to a case it could not be said that anyone had a right to the
outcome.
Dworkin’s Theory of Law

Objectivity. There are right answers to legal problems;

Principles: Law is not just rules but contains principles;

Institutional Support. Judges cannot apply any principles, they apply those principles
which have institutional support;

Rights. Rights are trumps. They override consequentalist moral demands.
Principles v Policies
Politicians engage in policy reasoning. Policy reasoning is consequentalist, eg. passing law X
will improve overall welfare.
Principles reflect rights, eg, the principle that one should not discriminate upholds each
citizen’s rights not to be discriminated against.
Judges do not have the means or resources to properly take into account policy issues. Judges
should decide cases by only having regard to legal rights, but in determining what the law is
judges also take into account principles.
Christopher Birch
April 2004
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Dworkin’s Theory of the One Right Answer
Dworkin seeks to overcome the sceptical conclusion of the realists. Initially Dworkin argued
that principles were a device by which judges could justify right answers.
In later works, particularly ‘Laws Empire’ Dworkin appealed to notions of overall coherence
of the law to demonstrate why there is a right answer. He used a number of metaphors and
analogies to explain how there is a right legal answer to all legal problems.
1.
the hypothetical best legal decision arrived at by the hypothetical best possible judge
Hercules;
2.
the concept of best fit;
3.
the metaphor of the serial novel;
All these arguments seek to show that judges should strive to arrive at the best justification in
political and moral terms of past decisions.
A Case Study in Legal Reasoning using Dworkin’s Theory
Yerkey v Jones (1939) 63 CLR 649
European Asian Bank of Australia Ltd v Kurland (1985) 80 NSWLR 192
Garcia v National Australia Bank Limited (1988) 184 CLR 395
Christopher Birch
April 2004