Right Thesis

Ronald Dworkin
Introduction
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. Dworkins
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 Dworkins 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 judges 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. Austin saw no problem in this. It is the thesis of Dworkin
that judicial discretion in what Dworkin calls its Strong Sense does not exist. Dworkin rejects
the view regarding judicial discretion. The judges often are heard to say: We find the law to
be this, and they say they discover the law. They do not profess the law to be their own
discretion.
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, its a naked usurpation of legislative functions).
(ii) Retrospectivity & The Rule of Law: Dworkins 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; thats 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.
Judicial Discretion
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 Hyde
Park?
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 Austin, rules do not have extensionality. However, Neil MacCommick in
his Legal Rights and Legal Reasoning said that we can extend rules by analogy but this will
extend positivism in a way which goes against the essential core: its clarity. Austinwas
interested in the absolute clarity of law.
If for example, a judge decides that skateboards are included in the definition and are banned
from Hyde Park, he adds to the wordings of the Statute he comes to a posited decision. But
the judge has now extended the law and this binds the future.
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. Theres 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 Dworkins 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 cant 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 Harts 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 Dennings 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 Harts 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, Dworkins 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 grandfathers 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/
Dworkins 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 Dworkins right answer thesis as flawed and vulnerable to criticisms. Hart
described Dworkin as a Noble Dreamer.
Peter Fitzpatrick called Dworkins 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, Dworkins best known work, Laws Empire was published in 1986. To
Dworkins 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 Dworkins word: We live in and by the law it makes us what we are
Stephen Guest says, Dworkins 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.
Conclusion
Dworkins 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.
Dworkins 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 Dworkins 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 Dworkins 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
Laws Empire)