Phi 213 Sp13
 
Reading guide for Fri. 2/22: Ronald Dworkin, “Hard Cases,” Harvard Law Review, vol. 88 (1975), §IV.A.2-IV.B.1, pp. 1085-1093 (on JSTOR at 1340249)
 

This assignment again concerns parts of two larger units. The tie in this case is the difference Dworkin sees between statutes and precedents.

In §IV.A.2, think about Dworkin’s sample interpretation of the statute in the “celestial marriage” case (p. 1085) and the interpretation of the bridge charter indicated by the quotation from Justice Morton’s opinion (in note 21 of p. 1086). How do these fit Dworkin’s description of such interpretation in the footnoted sentence on p. 1086? Dworkin fills out this description in the first of the two points he goes on to make (p. 1087). The second point is an important comment on the role of “canonical” language in statutes; note its connection with the difference between policy and principle and with Dworkin’s earlier discussion of political responsibility (on p. 1064).

In §IV.B.1, Dworkin sets out his view of the differences between statutes and precedent. He first argues that a precedent has a “gravitational force” that goes beyond the “enactment force” determined by the language used to state a rule (pp. 1089-1090). He then argues that this gravitational force must derive from considerations of fairness (pp. 1090f) and that this implies that precedent applies to new cases only by way of arguments of principle and not by way of arguments of policy (pp. 1091-1093).