Dworkin calls the version of conventionalism outlined in the previous posts, “unilateralism.” Unilateralism, he goes on, is in fact the prevailing doctrine in criminal law: “no one should be found guilty of a crime unless the statute or other piece of legislation establishing that crime is so clear that he must have known it his act was criminal, or would have known if had made any serious attempt to discover whether it was.” (143)

He distinguishes (strict) conventionalism from unilateralism, because the former allows and even insists that judges make brand-new law in hard cases rather than as I proposed in previous posts, simply rule for the defendant.

It seems to me, however, that even unilateralism allows lawmaking by the judicial branch, if it is limited to discovery and application of natural law, as suggested below. Expectations are still fully protected for the reason given.

But Dworkin may be mistaken in arguing that a judge “must do his best for the community as a whole.” This point is, as seems to me at this page in the book as I am live blogging it, at the heart of Dworkin’s vision, namely, that it is the task of judges to harmonize the law, make it coherent. I agree that if judges can or are qualified to harmonize the law as per the nature of their trade, then they most certainly ought to do just that. But can they? We shall see which arguments Dworkin will adduce next.


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