Chapter 3: Judging and legal reasoning today (‘official portrait’) (2)
In the last chapter we saw how the legal philosopher Ronald Dworkin developed a theory of law based upon interpretation. The role of the judge is one of interpreter. Dworkin is also known for his other major contribution to a theory of law and legal reasoning: that judges should concern themselves only with the determination of people’s rights. The idea of law as rights was by no means invented by Dworkin. Indeed some argue that its foundation is in the word ius, which in later Roman law appeared to have had a sense close to that of a ‘right’. The word ius was certainly given this sense by later continental jurists. But Dworkin developed this rights model in order to set out the role of the judge in the common law world. Yet what exactly is meant by the term ‘right’? What is being asserted here is a structural view of a ‘right’. It is an abstract notion based on a relationship between two institutional elements of a person and a thing. However this structural definition does not really capture the differing intensities that can attach to the concept. Yet even if one could better define a right, would this be enough? There is, then, an ambiguity that attaches to the notion of a right. One problem is that a range of rather different legal claims can all attract the term right. For example, if one enters a free public car park one can talk of one’s ‘right’ to park there.
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