Common law did not start off as legitimate law, but rather as an artful imposition by clerks working for a Norman conquerer. It acquired legitimacy through acquiescence by subjects who respected its consistency and justice. Common law today retains that legitimacy through its consistency with the past. Sometimes -- when circumstances change -- common law must also change so as to adapt. But that change is legitimate only inasmuch as it reaches into the past for a way to understand something new in the present. By proceeding in this manner, the common law judge preserves the legitimacy of his judgments through their conformity with a kind of democracy of the dead.
Simply overturning common law because one detects -- not a new situation -- but a new principle is to undermine the legitimacy of common law. Even if one believes this new principle is obvious to those formed by the spirit of the age, one cannot legitimately introduce it to a common law situation. For common law has no procedure to legitimate the spirit of this age any more than it can the personal preferences of a judge. The promulgation of new moral principles is the task of a legislator rather than a common law judge.
Dworkin's strategy is to avoid both the conservatism of a common law judge who only wants to duplicate the past as well as an "living Constitution" innovator who would introduce contemporary principles to common law. He does this by allowing the common law judge to reach into the past to find principles not previously applied in the sort of case that one presently faces. There is something both conservative about this procedure inasmuch as it reaches into the past, yet innovative inasmuch as it applies the already known principle in a new way.
There is something untethered about this: for in applying old principles to new situations, the Dworkian judge is lifting the old principle to a higher level of generality than it previously had. But if different judges did this to their preferred background principles, then these principles would enter into conflict with each other. The integrity of the law -- the very thing that Dworkin is so concerned about preserving -- would break down. For Dworkin cannot answer the question "whose background principles" in a principled manner.
Simply overturning common law because one detects -- not a new situation -- but a new principle is to undermine the legitimacy of common law. Even if one believes this new principle is obvious to those formed by the spirit of the age, one cannot legitimately introduce it to a common law situation. For common law has no procedure to legitimate the spirit of this age any more than it can the personal preferences of a judge. The promulgation of new moral principles is the task of a legislator rather than a common law judge.
Dworkin's strategy is to avoid both the conservatism of a common law judge who only wants to duplicate the past as well as an "living Constitution" innovator who would introduce contemporary principles to common law. He does this by allowing the common law judge to reach into the past to find principles not previously applied in the sort of case that one presently faces. There is something both conservative about this procedure inasmuch as it reaches into the past, yet innovative inasmuch as it applies the already known principle in a new way.
There is something untethered about this: for in applying old principles to new situations, the Dworkian judge is lifting the old principle to a higher level of generality than it previously had. But if different judges did this to their preferred background principles, then these principles would enter into conflict with each other. The integrity of the law -- the very thing that Dworkin is so concerned about preserving -- would break down. For Dworkin cannot answer the question "whose background principles" in a principled manner.
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