Hard V Soft Positivism Dedicated to UK & UN By Annesha Kar Gupta

The issue relating to this case is whether Dworkin was able to provide an efficient mechanism which can
be used to find out morality where the law is uncertain or not. Indeed, he picked up from there where
Judge Harcules, Professor Hart or Raz left off. It is extremely advantageous to use soft positivism, but
depending upon the nature of the deciding authority.

Dworkin’s Theory to Address Problems of Hard Positivism:- Dworkin’s theory of law-as-interpretation

picks up where legal positivism left off. Hard conventionalism means no to derive from the words of the
law. Soft positivism or conventionalism means firstly, that judges should decide cases in the manner that
judges should decide cases and secondly, there has to be a convention among judges that this the way
they should decide cases. According to dworkin there are generally four stages, namely, semantic stage,
jurisprudential stage, doctrinal stage, adjudicative stage. Dworkin’s theory of interpretation divides the
soft conventionalism or semantic stage of interpretation into three stages, as follows:

Pre-interpretative means where no attitude is stuck towards the value of the rule. Interpretative
means questioning, differing, doing-argument against the long established principles.

Post-Interpretation means the principle has fold back into it and it has an effect of changing the
original rule.

Law is the rule of life and the mentality of people cannot be changed unless the change can be brought
into their stereotypic mentality. When that is not possible by general awareness, then that must be
bringing through legal institutions to maintain a healthy and welfare society. It is true that it is
impossible to do any enactment, stating all upcoming problems there. So, limitations are there because
of uncertainty which can bring rigidity to the law and society. Dworkin’s theory of interpretation solved
this problem of rigidity.

Judicial discretion in terms of adjudication:- As Professor Hart says that Interpretive account of law
includes the explicit settled law identified by reference to its social sources along with implicit legal
principles which are those principles which both best fit or cohere with the explicit law and also provide
the best moral justification for it. On this interpretive view, the law is never incomplete
orindeterminate, so the judge never has occasion to step outside the law and exercise a law-creating

power in order to reach a decision. Discretion is therefore for such implicit principles, with their moral

dimensions, that courts should turn in those hard cases where the social sources of the law fail to

determine a decision on some point of law. Constructive interpretation which is so prominent a feature

of Dworkin's theory of adjudication, but though this procedure certainly defers, it does not eliminate the

moment for judicial law-making, since in any hard case different principles supporting competing

analogies may present themselves and a judge will often have to choose between them, relying, like a

conscientious legislator, on his sense of what is best and not on any already established order of

priorities prescribed for him by law. Judges should be entrusted with law-making powers to deal with

disputes which the law fails to regulate may be regarded as a necessary price to pay for avoiding the
inconvenience of alternative methods of regulating them such as reference to the legislature. If there is

any gray area left and unless discretion as judicial legislation cannot be exercised, then there will be a

dictatorship and rules made by legislature and other legislating bodies will go unchecked.

Dworkin Grants Judges the Greatest Amount of Discretion in Hard Cases:- Dworkin's other criticism of

judicial discretion condemns it not as descriptively false but for endorsing a form of law-making which is

undemocratic and unjust. Judges are not usually elected and in a democracy. So, only the elected

representatives of the people should have law-making powers. Dworkin makes the further accusation

that judicial lawmaking is unjust and condemns it as a form of retrospective or ex post facto law-making

which is, of course, commonly regarded as unjust, but the reason for regarding retrospective law-

making as unjust is that it disappoints the justified expectations of those who, in acting, have relied on

the assumption that the legal consequences of their acts will be determined by the known state of the

law established at the time of their acts. Dworkin says that judges should not depart from the principle

where the law is settled, but where there is gray area or uncertainty has been found, there discretion

should be used as mechanical measure to meet that fill-up the gap for the welfare of the society. It is

true that disagreed that Dworkin granted the greatest amount of discretion. It is also true that judges

are unelected, but they are expert in this field. When Parliament or executive encroaches upon the

rights of common people, then these unelected judges are the only one who could save the society from

unholy whims. Selection is always different than election. Selection is always for experts and without

experts there cannot be survival of society. If doctor can save people’s life by using their discretionary

power achieved through their skills, then judges are also can save the society by using their discretionary

power achieved through their skills, may be have unlimited power from it.

Dworkin Used the Image of Hercules as Misleading:- Judge Hercules said that interpretation of law is

restricted to some certain kind of already defined interpretations with which Dworkin disagreed. In-fact,

Dworkin is neither wrong here nor he used the image of Hercules misleading. Judge Hercules is also

correct from his perspective, but he failed to think about unsettled problems which are developing for

new developments. For example, the case of R (M Children) the High Court refused to give permission to

have direct contact with the children because the father of those children is a transgender and he is

living as woman now and no precedent are there before on this issue. Judge Harcules failed to think

about this issue of transgender also the High Court, but the Court of Appeal applied its discretion and
decided in favor of the transgender father to allow him to have direct contact with his children.
UnlessCourt of Appeal decided this case according to the principle of Dworkin, then this scientific
development

of having rights and liberty to change one’s gender became frustrating in free country like UK. Dworkin

never provide any misleading view on Hercules.

Dworkin’s Mistaken View:- Critics says that Dworkin has a mistaken view that there is always right to

answer legal problems and when a right answer is available then that answer is moral. As peter devlin

says that it depends on the mentality of judges who are using the discretion. In R (M Children), the High

Court refused the transgender father’s application, but the Court of Appeal, think something different.

From the traditional Jewish community view the decision of Court of Appeal is immoral. Again, from the

modern point of view or from the point of view rights and freedom and liberty in a free country like UK,

the decision of High Court is immoral. So, it depends on the view of people.

Judges Ought to Decide by Principles:- Dworkin’s difference between principles and policies says that

judges ought to decide case by principles and not policies. Dworkin did not mean that. Policy means

community goals and principle mean tested rules. Judges are often have to test different policies to give

relief to common people. They have to use principles means the rules which are already tested and

established to test that policy. If anyone wants to derive from this conception, then there is no harm to

depart from it, if that is not harmful for the society because Dworkin used the word “ought” here. Ought

cannot be treated as must or is. Secondly, some critics say that Dworkin’s theory is based on inadequate

and misleading distinctions: firstly, between rules and principles and secondly between principles and

policies which is also not true at all. Rules are general and tested or untested laws. Principles are

established laws through tested rules and finally, policies are community goals. His distinction between

rules, principles and policies are extremely clear and there is nothing unclear.

Advantages & Disadvantages of Dworkin’s Theory of Interpretation:- Dworkin’s theory of

interpretation is definitely advantageous, but let’s discuss that through case studies to understand the

practical application of it and whether that is advantageous or disadvantageous, practically. The case

named Mcloughlin v O'brien is extremely evident here:

Facts:- On 19 October 1973, a friend came to the claimant's (plaintiff's) house to tell her of a

serious accident involving her husband and three children two hours after it had occurred. He
drove her to the hospital where she was told one child was dead, and saw her husband and two

other children seriously injured, covered in oil and mud. She suffered serious nervous shock as a

result and sued the defendant who was responsible for the accident. Earlier decisions in English

courts had allowed victims to recover damages for psychiatric injury sustained as a result of

witnessing the imperilment of a loved one, but only where the claimant was actually present at

the scene. This case was unique at the time because the claimant suffered injuries away from

the scene of the accident and hours after the accident occurred. This case is frequently

examined by law students and students of legal philosophy.

Trial Court:- The trial judge held that the defendants owed duty of care to the claimant as she

saw her husband and children covered in oil and blood as a result of the accident. She then

suffered psychiatric injury, including clinical depression and personality changes prior to

witnessing her family's situation in the hospital. The trial ruled for McLoughlin.

CA:- The Court of Appeal rejected McLoughlin's appeal on grounds of public policy. The Court

held the injury was foreseeable, and a duty of care was owed to McLoughlin. However, they didnot
allow McLoughlin to recover damages. Stephenson L.J. held that the consequence of breach should be
limited as a matter of policy. Griffiths L.J. held that the defendants had a limited duty of care, and that
foreseeable consequences did not automatically impose a duty of care. The Court also held that only
legislature should extend the scope of liability.

HL:- The House of Lords found in favour of McLoughlin, that the nervous shock suffered by McLoughlin
was reasonably foreseeable and that policy considerations should not inhibit a decision in her favour.
Lord Wilberforce delivered the leading speech, and laid out the test for recovery of damages for
personal injury resulting from nervous shock. First, a close familial relationship must exist between
claimant and victim. Second, the claimant must be in close proximity to the accident "in both time and
place". This includes witnesses of the immediate aftermath of the accident. Third, and last, the shock
suffered by the claimant must "come through sight or hearing of the event or of its immediate
aftermath".

Unless the House of Lords decided that this as reasonably foreseeable and that policy considerations
should not inhibit a decision in her favour, then anyone could do this kind of jokes easily, without fear of
any punishment and that will lead towards a society where no one believes each other which is not a
sign of healthy society. Unless Dworkin provided us his theory of interpretation, there would a crisis that
in hard cases like this what should be done when the words according to hard positivism is uncertain.

Conclusion:- We can conclude by saying that Dworkin’s theory of interpretation of law not only solved
the problem where hard positivism left off, but also uphold the right of democracy for the well-being
and better future of any society.
References: Concept of Law by H.L.A. Hart; The Enforcement of Morals by Patrick Devlin; Law’s
Empire by Dworkin; Taking Rights Seriously by Dworkin