Do you find Dworkin’s view that judges are not strictly bound by the past attractive, or
dangerous to the rule of law?
An understanding of how the law comes to places through the social foundation of law
perspective highlights that it is the society that first changes, and then the law is forced to
conform to such changes. The above statement suggests that the lawmakers, in particular, the
judges in making laws are more interested in the law as it ought to be as the law as it is mainly
for the legislature and is only subject to interpretation. To do away with the problem of the
rigidity of the law, then judges just have argued by Dworkin should balance the two competing
dimensions, that is fit with the past and moral justification in light of political morality.
There is indeed consistency and predictability in the law. However, it should be noted the society
is very dynamic. As a result, what is socially accepted today might change as best explanation
how fast fashion changes from one trend to another. To ensure that predictability as a good
characteristic of the law is balanced with achieving the best outcomes in new instances as often
presented by cases, judges should be given the freedom to decided cases based on what the law
ought to be as opposed to what the law is. In Kenya, when the Supreme Court was abolishing the
mandatory death sentence those who were convicted of murder, argued that mandatory death
sentence made judges to be more like robots as they are to perform their duties as they have been
programmed, something that creates bad law when decided certain cases.
Judges must be given the ability to have a say in whatever decision they reach rather than just
conforming to the previous decisions. This means that they should be able in some cases to
conform to the naturalist theorists to ensure that they get the best outcome in a particular case by
ensuring they reach decisions that interpret the law as it ought to be. Therefore, I find Dworkin’s
view that judges are not strictly bound by the past attractive.