Dworkin on Legal Construction the Essay

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In principle, Dworkin argues that the truth is always knowable for any given factual circumstances; the difficulty is that the human intellect is imperfect. In the same way, there is a finite number of individual particles of sand on the earth at any moment in time. Human intellect and capabilities are incapable of determining that precise number; it would require a hypothetically limitless intellectual capacity. Judge Hercules possesses that infinite intelligence and also has the luxury of infinite time for contemplation. Dworkin suggests that Judge Hercules would always make the right decision and that the role of human judges is simply to aspire to be as Hercules-like as possible. Dworkin's Judge Hercules is very similar to John Rawls' allegory about the veil of ignorance that he uses to illustrate the meaning of objective justice.

Principle vs. Policy

To explain the importance of valuing principle over policy in the construct and just application of laws, Dworkin recalls an English case: McLoughlin v. O' Brian involving the emotional harm experienced by plaintiff in connection with her emotional breakdown caused by seeing the injuries to her husband and sons (at the hospital after the fact) and to being told of the loss of her daughter in a vehicular accident in which the plaintiff was at fault. Dworkin rejects the rationale of that court in allowing the plaintiff to recover despite the fact that the applicable law required as a condition for recovery for emotional distress that a plaintiff personally witness or immediately come upon the accident where a loved one is seriously injured or killed.

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In Dworkin's view the same decision could possibly have been reached appropriately on principle, but not on the basis of policy implications in the manner that it was decided by the court.

To satisfy Dworkin's point-of-view, the court should have reached that decision as follows, on legal principle rather than outcome-driven policy implications: "The distinction between personally witnessing and not witnessing the actual injury has no significance except in that embodies the principle that it is generally expected that witnessing the death or grievous injury to a loved one would cause many reasonable people to experience compensable emotional shock and trauma because of its sheer intensity. It is not necessarily expected that a reasonable person would experience the same intensity of emotional shock from the narrative information that a loved one had been injured or However, in many cases, that expectation should at least be capable of being rebutted by the facts.

It is perfectly conceivable that some plaintiffs could suffer comparable shock and trauma merely from being informed; indeed, individuals have on occasion actually suffered heart attacks and even died on the spot in such circumstances. Therefore, the intent of the legislators was not to limit recovery specifically and exclusively to plaintiffs who actually witness the tragedy; the intent of the law was to provide personally witnessing the tragedy as a perfect example of a situation where recovery would often be justified based on the reasonableness of the emotional response. That same principle would also apply in other situations based on different factors besides personally witnessing the accident.".....

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