Recently, I had the opportunity to read a very interesting article by Choo Han Teck, admitably I don’t know much about this judge, but I am learning more about the different legal personalities in the course of Part B, especially through A, who has been a good friend and wonderful companion on the course. Without my dear girls – WN, A and H, I think I would honestly feel terribly dreary writing an endless sequence of letters.
I’ll be sharing more on this article in time, but I thought this particular interpretation on Dworkin was quite refreshing – (in UCL, hardly anyone contradicts Dworkin, and many academics are staunch Dworkin supporters):
The connection between the different spheres of knowledge and learning is a close one, as Ricoeur illustrated in the context of the constant battles involving Dworkin and his favoured target, legal positivism, and the problems that frustrated both him and legal positivists. Referring to judicial discretion, postulated by some legal positivists as the truly legal answer in hard cases, and Dworkin’s indignation at this very thought, Ricoeur stated:
“Whence the problem as Dworkin sees it: how to justify the idea that there is always a valid response, without falling into the arbitrary or into the judge’s claim to make himself a legislator? It is at this critical instant that the juridical theory runs into the model of the literary text and the submodel of the narrative text, which will become under Dworkin’s pen, the paradigm of the literary text.”
Ricoeur’s essay is used here as an illustration for a straightforward but important point. An advocate can get by with a superficial understanding of the law and its jurisprudential implications by, say, accepting law as the rules that he can find expressed in legislation or judgments of the courts. He might get inquisitive and probe deeper into the question as to what law really is. At that point, he will meet the legal positivists, the natural law lawyers, and innominate philosophers like Dworkin. If he goes further, he may see the expansion of jurisprudential disputes acquiring the sheen of fresh meaning from other branches of knowledge, as Ricoeur was here attempting to do, showing Dworkin’s enthusiasm for the idea of law as interpretation prevented him from seeing that interpretation must lead to argumentation, and from that, the discretion of the interpreter becomes as powerful as that of judges, a notion that Dworkin disapproved”.
Thought-provoking stuff on law coming alive – As Choo Han Tech notes, “an advocate will learn in the process of study and reflection that although the finest exhibition of his art lies in the ability to simplify, simplicity is derived from a distillation of the profound; it is not attained by jettisoning deep learning. Simplicity is not synonymous with superficiality; and learning continues long after a case is closed”.
Really encourages me to go deeper into the practical subjects I am working on currently. Distilling the profound, what a thought.