Theorists and the Legal Model¶
Under Construction. This section and chapter will expand greatly.
Will also contain proper structuring and contents
Dworkin and the Legal Model¶
Political theorists like Ronald Dworkin, in Taking Rights Seriously [Dworkin, 2013] argues that jhustices do not freely exercise discretion according to ideological preference alone. Instead, he posits that precedent guides justices towards a decision. In contrast to attitudinal theorists he does not accept that Justices merely pick and choose from precedent in order to rationalize their individual values. The law determined by precedent is considered to the rule which Justices follow.
In fact, precedent is considered to be the paramount authority in cases in which no preexisting rule of law exists ([Dworkin, 2013] , 110 -115). Dworkin, denies that in such cases judges essentially legislate new rights, and fervently “denies that they exercise discretion ([Dworkin, 2013] , 49).” Along with the Justice Scalia, he claims, that it is a “judge’s duty, even in hard cases, to discover what the rights of the parties are, not to invent new rights retrospectively ([Dworkin, 2013] , 81.” Instead when the facts of a new case fall within the matrix of rules developed by precedent, the earlier cases exert an “enactment force” which restricts the range of judicial discretion. Even when unprecedented cases reach the bench, earlier decisions exert a “gravitational force” again limiting judicial decision making ([Dworkin, 2013] , 111). These two combined forces do not allow for a justice to merely make the law according to their preferences. Instead, they must balance his own “intellectual and philosophical convictions” with the facts of the case and precedent ([Dworkin, 2013] , 118). In doing so a justice will find the correct legal answer tempered by personal experience and philosophy.
Dworkin’s work does not argue that the subjective factor of jurisprudence is totally eliminated. Rather, the justice is argued to operate as a qualified filter that selects the proper ruling in a case while bound by the structures of legal history and precedent. Accordingly this theoretical approach nullifies certain interpretations from a possible win set available to a justice. The Judge’s job then is to find the law with the support of a “textual anchor” or “extant legislation.” Individual interpretations, or bounds may different, but nonetheless precedent affects decision making. Dworkin also considers the role of institutional factors. Higher courts, he acknowledges, are not obligated to strictly follow precedent due to their position within the hierarchy of the courts, but are to a degree still reliant upon the pull of precedent. [Dworkin, 2013]
Kahn and the legal model.¶
Of the theorists and justices arguing for a legal model, Khan’s argument is most succint. He states, that:
“Members of the Supreme Court believe that they are required to act in accordance with particular institutional and legal expectations and responsibilities ([Kahn, 1999], 175);”
“The Court does not follow elections or politics, but views itself as autonomous from direct and indirect political pressures ([Kahn, 1999], 177);”
“Justices do not follow personal policy wants ([Kahn, 1999], 177);”
“respect for precedent and principled decision making are central to decision making ([Kahn, 1999], 177).”