“natural” Law Revisited

articulates a view of natural law that is reflected in how judges apply the law to decide cases. This view, he argues, is different from the traditional metaphysical view of natural law, which says that what the law is must be determined by what the law ought to be. He argues that his view of natural law insists that the content of law may sometimes depend on the correct answer to some moral questions. For Dworkin, an accurate account of the nature of law involves an account of the workings of a legal system, which is reflected in how judges decide cases. Hence, his account of natural law is manifested in how judges decide cases, especially difficult cases. This view says that judges should decide hard cases by interpreting the political structure of their community. This requires them to find the best justification for their decision in principles of political morality, which provide the basis for the political and legal structure as a coherent set of laws and practices, including constitutional rules and the private laws of contract and tort. He argues that when a judge is faced with a case, the judge will have to ask questions that will help him to provide the best justification for his decision in a way that justifies the whole system. To account for what he calls full justification, he invents a mythical judge, Hercules, who has superhuman abilities to contemplate a justification of the whole system. In reality, he argues that judges can provide only partial justification for specific decisions in the context of the system. Obviously, Dworkin rejects the idea that the process of adjudication is a mechanical process of applying the law to a set of facts: it is an interpretative process. Dworkin argues that his theory of adjudication can be appreciated by understanding how someone would interpret a story in a chain novel. In the interpretation of law, the judge must make creative decisions, but those decisions also have to be coherent with the decisions that have been made before. The decisions that represent the best interpretation must present the system in the best political light. Two factors affect the judge’s decision: one has to do with interpretative fit, and the judge must establish a threshold for himself; the other is the substantive ideals of political morality and justice. “NATURAL” LAW REVISITED Ronald Dworkin