Dworkin v Fish : Theoretical Premise of Awarding Damages for Psychiatric Illness in England and Australia
Abstract
This article examines the law of psychiatric illness in the light of Ronald Dworkin’s and Stanley Fish’s legal theory. The article proposes to examine the attitude of judges to judicial law making in England and Australia, the jurisprudential contributions to the debate and the need for and the justification of judge-made law in terms of rules, principles and policies. Although there is recent scientific research explaining that mental health causes actual trauma to brain cell structures, it seems unlikely that English courts will adopt a similar stance to recognize this new development in psychiatry. Dworkin is of the opinion that legal decisions must be justified with a legal theory such as ‘application of the methods of literary interpretation to legal texts.’ Dworkin explained his work by referring to policies, principles, rights, interpretations, adjudication, pragmatism, conventionalism and integrity. His perception of law is seen from an interpretive vantage point, in which policies, principles and rights play a crucial role alongside positive law and most cases are settled on the basis of ‘like cases should be decided alike.’ On the other hand, Fish demonstrates how readers from a similar background or context will interpret a text similarly, and thus that the reader, more than the text, determines what the text says. Further he emphasises the reader as creator of texts, suggesting that it is not different interpretive communities that cause diverging interpretations of texts but simply different interpretations.