Postures of Judging: An Exploration of Judicial Decisionmaking
Cardozo Studies in Law & Literature, Vol. 90, p. 173, 1997
38 Pages Posted: 30 Mar 2005
This article pits Ronald Dworkin against Fyodor Dostoyevsky. The article critiques Ronald Dworkin's answer to the question of fit: how judges reconcile general legal rules with particular situations. Dworkin's heavy focus on legal principles under-emphasizes the importance of facts in judicial decisionmaking. Exploring how judges approach the question of fit from a more literary perspective, the article examines the posture of a judge - a judge's physical and temporal position in relation to the cases she adjudicates, a position which affects the level of generality with which a judge perceives the facts of a case and directly influences a judge's toleration of imprecision in fit between general propositions and concrete cases. Postures provide a descriptive account of aspects of our legal experience that Dworkin's principled jurisprudence cannot explain. The article focuses on Fyodor Dostoyevsky's The Brothers Karamazov to illustrate how a multiplicity of similar yet distinct postures are shaped and how they relate to each other. An examination of Dostoyevsky's novel demonstrates deficiencies in Dworkin's theories and illustrates how literature can answer questions that Dworkin's jurisprudence cannot.
Keywords: Dworkin, Dostoyevsky, judging, jurisprudence
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