The judiciary plays an important role in all legal system. But the question is: How does a judge decides a case? If a case is brought to the court, the judge cannot refuse to adjudicate it on the basis that there is no precedent or the lawyer cannot cite any authority on the point of law.
In this connection, Dworkin observed that there is a right answer to each case. Dworkin’s Right Thesis involves the general claim that within legal practice and a proper understanding of the nature of law, rights are more fundamental than rules. This is the opposite claim to most legal positivists.
Rights are trumps in Dworkin’s Theory, which means that if there is any right which comes into conflict with any policy, the right must prevail.
Law as Seamless Web
The law is to be treated as a seamless web in which there always is a right answer. Judicial decisions are characteristically generated by principles and enforces existing political rights, so that litigants are entitled to the judge’s best judgment about what their rights are. To Dworkin, different judge may come to different conclusions but he insists that judges may not rely on their own political views but only on their beliefs in the soundness of those convictions.
It has long been received opinion that judges “filled in the gaps” left by rules by using their discretion. HLA Hart has written, “That the rule-making authority must exercise discretion…” Hart saw rules as ‘open-textured’.
For Dworkin, judges are always constrained by the law. In every adjudication of the so-called “hard-cases’ there are controlling standards which a judge is obligated to follow.
Dworkin objects to judges acting as ‘deputy legislators’ for 2 reasons:
(i) Separation of Power: It offends the democratic ideal that a community should be governed by elected officials answerable to the electorate. The judge not being elected must not substitute his own will as against the legislature. (In Lord Simmons words, “it’s a naked usurpation of legislative functions).
(ii) Retrospectivity & The Rule of Law: Dworkin’s 2nd objection to judicial originality is that “if a judge makes a new law and applies it retrospectively in the case before him, then the losing party will be punished, not because he has violated some duty he had, but rather a new duty created after the event.”
If judges are to make law, as what Hart said, that would be in contradiction to the theory of separation of power. If judges were to make law in hard cases, they would be applying the law retrospectively; that’s against the rule of law. Citizen has a complaint that even though he was not surprised by retrospective legislation, there was no liability at that time he did the act. If the citizen is being made retrospectively liable, it is because there was no law at that time that made him liable that places a special duty upon the legislature to justify retrospective legislation.
For legal positivism, the law is the law posited. So what is the position in a case where a rule has not been posited?
Take a skateboard case. The actual legal position is likely to focus on language: “Is a skateboard a vehicle for the purpose of the by-law which prohibits vehicles to be used in
The rule does not extend to determine the question of skateboards. Thus there is a gap in the law. We can simply say that because there is no mention, they are permitted. Both sides cannot refer to decided case-laws. The prosecution might say it is included in the mischief of the Act.
Dworkin wishes us to consider carefully what lawyers are actually doing as a matter of legal principle in hard cases. If both sets of lawyers are serious, both sides believe that they are correct. Both sides actually believe that there is an answer. Why then go to the court if you do not believe that your side is correct, that the law Is as you claim?
Austinian positivism is clear – when the rules ran out the judge operate as a deputy legislator filling in the gaps. To
If for example, a judge decides that skateboards are included in the definition and are banned from
Dworkin is not satisfied with this model. The reasons are: Discretion is not free-standing but part of a process. Discretion, like the hole in the doughnut, does not exist except as an area left open by a surrounding belt of restriction. Discretion is not outside the law but internal to the law. If judicial decision making was unfettered discretion we would have to say that it is no special role for judges beyond being a political and administrative official. If judges were unfettered law makers they would have to be democratically elected.
If judges simply exercised discretion and make new rules they would be changing the rules of the game. Each time they do so they also commit a fraud on the litigants.
Dworkin has an alternative theory. The first step is to make a distinction between strong and weak discretion. Strong discretion is where the officials are bound by pre-existing standards set by the authority. Weak discretion is when the standard cannot be applied in a mechanical way. There’s a need to evaluate what the standard means in a new case. In weak discretion, there is no gap in the law. Strong discretion does not exist for judges. Weak discretion is part of the judicial role. The discretion is controlled and there are no gaps in the law.
Hart says that judges exercise strong discretion in hard cases. But that seems to equate: Rules + Discretion = New Rules.
In order to understand Dworkin’s criticism of Hart, we need to understand the distinction drawn by Dworkin regarding Rules and Principles, and Constructive Interpretation as propounded by Dworkin.
Legal Rules vs. Principles
Legal rules and principles for Dworkin exist to express and protect rights in the legal order. For Dworkin, the central approach within law emphasizes rights and the protection of the individual, including the protection of minorities who are left out of the consideration of the utilitarian.
Unlike the legal positivists, Dworkin insists that you can’t think of law as just rules. The idea that laws are rules induces distortion in legal reasoning. Instead we must distinguish rules from principles, policies and other non-rule standards.
In the operation of the legal system, policies are not appropriate to legal reasoning and principles are more important than rules as they surround the structure of rules.
All rules produce problem cases or hard cases which cannot be resolved by logical application of rules. Dworkin argues that in hard cases judges make use of standards that do not function as rules but operates as principles. Where two rules conflict, one rule is always wrong or invalid. Rules therefore operate in an all-or-nothing fashion.
Dworkin calls us to consider the actual operation of 4 cases, in particular, Riggs v Palmer.
In Riggs v Palmer, Elmer murdered his grandfather in order to inherit his will. Had the court taken the positivist view, that all laws are valid by the formal test (as per Hart’s thesis), the court would most probably decide in favor of Elmer. But the court did not allow Elmer to profit from his own wrong. That decision proceeded not on rules but on a principle of law, Nullus Commodum Capere Potest De Injuria Sua propria, that is, no one can profit from his own wrong.
Rules also do not cover the development of the Common Law through precedent and cannot adequately explain the creation of the “Neighbouring Principle” in Donogue v Stevenson by Lord Atkin. The creative role of Lord Atkin lies in his giving constructive interpretation of the earlier cases and formulating the principle in a new way.
Similarly, Lord Denning’s development of Promissory Estoppel doctrine in High Trees case was not pulled out of thin air.
We can see that the rules have a different meaning and different effect when you apply relevant principles. Whereas policies are the collective goals of society pursued by the legislature, democratically elected, principles are internal to law and are developed by the judiciary. So the rule that a person may not benefit from his own wrong is a principle which is found throughout the law.
For Dworkin, judges are always constrained by the law. There is no law beyond the law. In every adjudication of hard cases there are controlling standards which the judge is obligated to follow. Judicial decisions are generated by principles and enforces existing rights so that litigants are entitled to the judge ‘best judgment’ about what their rights are. Judges may not rely on their own political views but only on their belief in the soundness of their contributions.
Rights vs. Rules
Dworkin distinguishes right from rules. Rights are more fundamental than rules in a legal system. Rules express rights but the rights exist before their expression in the form of rules. This is opposed to HLA Hart’s view where rights develop from legal rules. The reason why Dworkin says rights are more important is because rights develop in the legal system through the working out of the political morality.
In summary, Dworkin’s right thesis asserts that a right legal answer would be one that asserts and protect rights which are explicit or implicit in the fundamental values of the legal system. To get the right answer, judges must have the ultimate wisdom from the history of decisions and the understanding of the political value of a system. A right answer is one which produces a better fit with existing law and legal practices. Here, Dworkin constructs a model of such a judge called Hercules. Although Hercules is only an ideal model, judges have an obligation to aim for the right answer.
Criticism of Right Thesis
MacCommick assert that the proposition that judge have a weak discretion and that they are to find the right answer from the principles is unsustainable.
Critics such as Greenawalt have argues that the ‘denial of discretion is wrong and is inconsistent with our ordinary understanding of judicial responsibilities for opinions. To suggest that judges have discretion is not to imply that they have license to do what they will. The institution of judging offers the judge choice only within the constraints of judgment.’
Greenawalt argues that there are also examples which contradict the right theories. For example, in a case of nuisance, the judge may consider the effect of his discretion on the community before accepting the right of the claimant. Such cases indicate that judges do decide on policies while determining the rights of the individual.
Dworkin replies that this is not a case of policy but a case where the judge compromises competing rights.
Other critics also criticize Dworkin on the ground that the right thesis cannot be demonstrated that there is only one right answer to a question. Supposing two judges are to decide whether Elmer is entitled to inherit his grandfather’s property, they may answer this question differently from each other and yet claim that each answer is the right answer. How do we demonstrate that there is only one right answer to a problem/
Dworkin’s answer is that it is insufficient to say that there can be no right answer just because they cannot be proved or demonstrated.
Hart criticizes Dworkin’s right answer thesis as flawed and vulnerable to criticisms. Hart described Dworkin as a “Noble Dreamer”.
Peter Fitzpatrick called Dworkin’s strategy to give systematic unity to the legal system and legal practice “Myth Making”.
To his critics, Dworkin continues to build his myth and noble dream. While he began his writing in the early 1970s, Dworkin’s best known work, Law’s Empire was published in 1986. To Dworkin’s supporters, he is offering an uplifting image of law. Dworkin challenges us to renew our faith in the law by recasting the lenses through which we view the role of law and legal practice. In Dworkin’s word: “We live in and by the law … it makes us what we are …”
Stephen Guest says, “Dworkin’s Thesis is not his own making but it has been ascribed to him. It can be said that what Dworkin meant to say was that there is a possibility of finding the best answer. In other words, the judge is given the hope that he must not give up thinking that there is no best answer at all.
Dworkin’s Right Thesis wants us not to relent but to make the utmost effort to get the best answer. It is a sort of ideal that Dworkin seems to present to the judge in practical pursuit. As per Stephen Guest, “He (the judge) may not get it right but the duty is upon him to try nevertheless.
Dworkin’s work has consistently been concerned with judicial interpretation of law and the role of judges. Dworkin is clear as to the political values he is committed to. His philosophy stresses a ‘Right’ approach over utilitarian calculations.
It is aptly to describe Dworkin’s theory of law lies in the best moral interpretation of existing social practices. His theory of justice is that all political judgments ought to rest ultimately upon the injunction that, people are equal as human beings, irrespective of the circumstances.
However, it seems Dworkin is very much influenced by professor Ron Fuller. His outlook of law come to be colored deeply by ethics and morality as expressed in hi theory and can be seen in his preferences of principles over rules. As a matter of fact, all legal principles pertain to the domain of morality.
My criticism of Dworkin’s analysis is that Dworkin sought to merge the descriptive elements with the prescriptive to the extent that he has sacrificed reality to a noble dream.
However, dreams have their place. They are better than nightmares. This dream looks at what the law can achieve. It sees a purpose to law rather than a mere instrument for social control. We awake from the dream refreshed.
This is what law is: for the people we want to be and the community we aim to have (Dworkin Law’s Empire)