Noam Gur, ‘Ronald Dworkin and the Curious Case of the Floodgates Argument’

Abstract
This article juxtaposes a jurisprudential thesis and a practical problem in an attempt to gain critical insight into both. The jurisprudential thesis is Dworkin’s rights thesis. The practical problem revolves around judicial resort to the floodgates argument in civil adjudication (or, more specifically, a version of this argument focused on adjudicative resources, which is dubbed here the FA). The analysis yields three principal observations: (1) Judicial resort to the FA is discordant with the rights thesis. (2) The rights thesis is instructive in one way but mistaken in another. While Dworkin has highlighted some valid and sound reasons against judicial policymaking, his conclusive exclusion of judicial policymaking from civil law adjudication is erroneous. Civil law adjudication, it is argued, is an arena of ineliminable tension between principle and policy. (3) The FA is a type of policy argument particularly vulnerable to objections against judicial policymaking. There should, therefore, be a (rebuttable) presumption against judicial resort to it.

Gur, Noam, Ronald Dworkin and the Curious Case of the Floodgates Argument (November 22, 2018). Canadian Journal of Law and Jurisprudence, volume 31, no 2, August 2018, 323–345; Queen Mary School of Law Legal Studies Research Paper No 289/2018.

First posted 2018-11-28 06:54:54

Leave a Reply