Discuss the case of Re Sigsworth and Teoh Eng Huat v Qadi of Pasir Mas with reference

to Dworkin. How would positivism deal with the disputes in these cases?

The case of Re Sigsworth1 concerned about a son who had murdered his mother.
Here, the mother had not made a will and under the Administration of Justice Act 1925, her
estate would be inherited by her next of kin (her son). There was no ambiguity in the words
of the Act, but the court was not prepared to let the son who had murdered his mother benefit
from his crime. The court then applied the golden rule holding that an application of the
literal rule would lead to a repugnant result. He was thus entitled to nothing.

In turn, in Teoh Eng Huat v Kadhi of Pasir Mas Kelantan 2, the appellant had
discovered that his missing daughter had converted as a Muslim by the first respondent. At
that particular time, his daughter was a minor under the civil law. He then brought an action
in the High Court seeking a declaration that he, as the lawful father and guardian, has the
right to decide the religion, education and upbringing of his infant daughter according to
Section 3 of the Guardianship Infant Act that declares the father as the guardian of the child
as well as Article 12(4) of the Federal Constitution. The court dismissed the application of the
appellant leading to him making an appeal to the Supreme Court There, the decision of the
High Court was overturned as it was held that no infant shall have the automatic right to
receive instruction relating to any religion other than his own without the permission of his
parent or guardian. However, in consideration of the fact that the girl had reached the age of
majority when the case was heard in the Supreme Court, the judgement is purely of academic
interest as the child is no longer an infant.

Both two cases had different facts, but one could identify one common ground. That
is, there was the question “Can and do judges exercise discretion when deciding cases?”.
Different theories will lead to different conclusions. Legal positivists, such as Professor
H.L.A Hart, claim that in hard cases judges do exercise discretion. However, while an
alternative theory of law offered by Ronald Dworkin contains some aspects of positivism,
Dworkin believes that judges do not have discretion.

In the modern world, Ronald Dworkin is widely known as a positivist’s critic. His
theory of law can be best described as the interpretive theory of law. Quoting Professor Hari
Chand, in brief, it means that legal reasoning is an exercise in constructive interpretation. In

1
[1935] 1 Ch 98
2
[1990] 2 MLJ 300
Dworkin’s works, he had criticised Hart’s concept of law as he viewed it as fatally flawed 3.
As such, undeniably, Dworkin is a positivist’s critic.

Dworkin had criticised the concept of legal positivism. Dworkin also made his
famous critique of the doctrine of judicial discretion in his frontal attack on legal positivism
in “The Model of Rules I”. He argued that by apportioning weight to principles and applying
them when deciding “hard cases” the penumbra of doubt is removed leaving a single correct
answer ascertainable in each case. He also stated that the idea that laws are rules induces a
distortion in legal reasoning. In his statement, all rules produce problem cases or hard cases
which cannot be resolved by the logical application of the rule. Nonetheless, Hart
acknowledged that the judges have a discretion though they are bound by rules.

In discussing about the judicial discretion, it is important to note that Dworkin

distinguished between weak discretion and strong discretion. Much ordinary usage of the
term discretion refers to weak discretion. For example, to say that a decision requires a
judgment call is to say that the decision-maker has discretion in a weak sense. The discretion
that is often attributed to a person with final authority to make a decision is also a kind of
weak discretion. Dworkin defined a stronger concept of discretion as follows: someone has
discretion in making a decision if he is not bound by standards set by an authority. This is the
kind of discretion with which Dworkin is concerned.

It is this kind of discretion that Dworkin believed positivists refer to when they claim
judges have discretion. Dworkin interpreted the positivist’s claim that a judge has discretion
as meaning that the judge has the right to make any decision he wishes and that he is not
obligated to arrive at any particular decision. This is the claim of the legal positivist to which
Dworkin objected.

According to Professor Hari Chand, on this topic, Dworkin’s stand is that even in
unclear or hard cases, there is always a right answer which judges should try to find and give,
but this right answer is not supplied by the existing rules. In fact, there are no rules on this
point4. It should be noted here that Dworkin used the term ‘hard cases’ in his own way. He
did not use it as it might be used in common practice such as referring to cases that are
difficult to understand or to cases in which the outcome might seem hard. Hard cases here
could be understood as cases which is hard for the judge to decide which of two conflicting

3
Hari Chand. (1994). Modern jurisprudence. Petaling Jaya, Selangor: International Law Book Services.
4
Hari Chand. (1994). Modern jurisprudence. Petaling Jaya, Selangor: International Law Book Services.
principles should prevail5. However, the judge can only arrive at such a correct answer by
applying the legal principles which are implicit or underlying the law. Dworkin viewed that
law is not made up of only rules, it also takes in principles, doctrines and maxims.

Such view contrasts with Professor HLA Hart’s views. Hart viewed that in hard cases,
judges have a wider discretion hence judges do make law. This could be linked with the fact
that Hart stood firm that judges do not simply find and apply the law and the open texture of
the law leaves a vast field for judges to display creativity. They must act with impartiality and
neutrality, keeping in view the interest of all the affected parties, judges may use general
principles as a reasoned basis for decision6.

For Dworkin, positivists get principles wrong. When “people who live outside
philosophy texts” appeal to “moral standards” in controversial cases, they do not argue that
they “ought to have the duties and responsibilities that the standard prescribed, but that they
do have them.” To put it simply, when the principle that “no person should benefit from their
own wrong” is invoked in a courtroom, it is perceived to be a pre-existing entity by the
parties to a dispute. What is more, judges also treat these principles as pre-existing entities7.

Dworkin then referred to the case of Henningsen v Bloomfield Motors8 which

concerned a New Jersey court legitimatizing the plaintiff’s argument that a car manufacturer
should be held liable for medical expenses incurred from an automobile malfunction despite a
lack of statutory support. Here, Mr. Henningsen bought a car. The warranty said the
manufacturer's liability was limited to “making good” defective parts, and absolutely nothing
else. Hennginsen argued that the manufacturer should be liable for more than just parts. At
the time, there were no rules governing this issue, but the court decided for Henningsen. The
court stated that cars are important and dangerous, so manufacturers need to be liable for
more than just parts. The court also said it could not support an agreement where someone's
economic necessity has been exploited. The court relied on principles especially the bit about
not exploiting economic necessity. The court considered another principle - the need to hold
up contracts. In this case, there are two principles that contradicted each other; the judge
needed to weigh the two against each other. This is another aspect of principles. This means

5
Riddall, JG. (2nd ed.). (2005). Jurisprudence. Great Britain: Oxford University Press.
6
Riddall, JG. (2nd ed.). (2005). Jurisprudence. Great Britain: Oxford University Press.
7
Pavone, T. (2014, September 10). A Critical Adjudication of the Hart-Dworkin Debate. Retrieved from
https://scholar.princeton.edu/sites/default/files/tpavone/files/hart-dworkin_debate_critical_review.pdf
8
161 A.2d 69 (N.J. 1960)
that they have weight. In each case, the judge must decide which of the possibility
contradictory principles is the most important.

According to Dworkin, principles have a relative weight, meaning one might be more
important than the other, and their relative importance depends on the circumstances of the
case. In hard cases therefore judges do not resort to extra-legal reasoning but decide the
matter as a matter of principles that are in essence moral rules. Dworkin asserted that
principles, just as rules are binding in that “officials must take (the relevant principle) into
account, as a consideration inclining in one direction or the other.” The judge is under a duty
to consider relevant principles, a duty that is equivalent to applying a relevant rule. Dworkin
disarms two further positivist criticisms.

Firstly, he had argued that while a single principle might not be capable of dictating
an outcome a set of principles can since they have relative weight and if a judge concludes
that one is more important than the other, he must decide accordingly. That is different from
having discretion9.

Secondly, Dworkin conceded that validity of principles and their respective weight
cannot be demonstrated with reference to identifying their origin as a valid legal source. The
weight is determined by interpretation of a community practice and legislative and judicial
history. The fact that the judgment might be controversial does not mean it is discretionary. It
was argued elsewhere by Dworkin that a judge must “bring to his decision a general theory of
why, in the case of his institution, the rules create or destroy at all, and he must show what
the general theory requires in hard cases. The judge thus does not decide in a legal vacuum
unconstraint by any binding principles but against the background of legal history from
which he has to deduct the right outcome of the case10.

In a response to Dworkin, Hart had accepted that what Dworkin called “principles”
are part of the law and rejected that view attributed to him that he argued otherwise. Hart
acknowledged that “legal validity (may include) conformity with moral principles.”
However, that did not alter the fact that the “law in (hard case) is fundamentally incomplete”
and the courts must exercise a creative law-making function.

Going back to Dworkin also, he opined if Hercules (Dworkin’s imaginary

superhuman judge) had decided to ignore legislative supremacy and strict precedent

9
Dworkin, R. (1977). Taking rights seriously. Cambridge: Harvard University Press,
10
Dworkin, R. (1977). Taking rights seriously. Cambridge: Harvard University Press.
whenever ignoring these doctrines would allow him to improve the law’s integrity, judged as
a matter of substance alone, then he would have violated integrity overall.

In short, Dworkin rejected the concept of judicial decision as when positivists

maintain that in certain hard cases where there is no pre-existing rule that governs the
outcome of the case, the judges have a strong discretion to adjudicate and make new law, this
would mean that the new law would act retrospectively and the parties would be bound by a
law that did not exist before their case as an unelected body of judges would be making the
rules to fit the case and this would be undemocratic.

For cases like the case of Re Sigsworth, if the judges adopt their interpretation of
how the law should be from Dworkin’s theory, the outcome of the cases have a high
likelihood of causing injustice to the victimised parties. In the possible event of the judges in
the case of Re Sigsworth deciding to forego their discretion, the son would then be able to
gain benefit from his act of killing his mother since there was no valid will executed by the
murdered mother. After all, there was no bar to the son benefitting under the will per the
Administration of Justice Act 1925. Such an outcome would then pose a possibility for
murderers to take advantage of their own wrong which is not desirable in any community.

Moving on, in Teoh Eng Huat v Kadhi of Pasir Mas Kelantan case, here it can be
seen that Supreme Court had in a way exercised Dworkin’s theory, as the law applicable to
the daughter at the time of the conversion was the civil law, the right of religious practice of
the infant should therefore be exercised by her father until she attains the age of majority. The
court solidified the fact that a person under the age of 18 does not have that right and in that
case of non-Muslims, the parent or guardian normally has the choice of minor’s religion. It
had followed the law as it should be. However, from this judgement, it could arguably be said
that the right of a minor to choose his or her own religion is restricted hence a form of
discrimination could be seen. As such, judicial discretion may come as a handy tool such as
the trial instance of this case, the High Court had recognised a minor’s right to choose their
own religion if they do it on their own free will.

Nonetheless, to understand how positivism would deal with cases like Re Sigsworth
and Teoh Eng Huat, it must be first understood that positivists like Hart, who was a
professional philosopher as well as a lawyer recognised that rules may not always be
sufficient to enable judges to reach a decision. From a positivist’s view, in cases where they
cannot be decided by the application of a clear rule, a judge may decide it by the exercise of
his discretion. To further understand, Hart’s perspective on this topic shall be looked at with
reference to his book entitled “The Concept of Law” which included his classic restatement
of legal positivism.

In “The Concept of Law”, Hart had developed the theory of what he calls “open
texture” of legal rules. What he means by that is that legal rules cannot, and indeed should
not, authoritatively determine the outcome in every possible case in advance. The language of
legislation, an indeed precedents, will only be easily applicable to plain cases. In his
argument, Hart stated that the indeterminacies in the law are desirable because human beings
are fallible and cannot predict any possible future circumstances and can therefore not ab
initio decide whether or not such a case should be included in the rule. “The rigidity of our
classification will thus war with our aims in having or maintaining the rule”11.

As a result, it is better when the law leaves room for future determination of cases. In
hard cases, a judge is faced with the question “whether the present case resembles the plain
cases ‘sufficiently’ in ‘relevant’ respects.” The judge in such a case has discretion, which is
“in effect a choice” whether to add the new case to those falling under the rule. He should
exercise this discretion in deciding whether the facts of the case are sufficiently close to prior
cases decided under the rule and having in mind the initial aim of the legislation or precedent.
In some cases “much must be left to be developed by courts…striking a balance, in light of
the circumstances, between competing interests.” Hart had used the example of a rule
prohibiting the use of vehicles in the park and the decision whether toy cars should fall under
the rule. In this case a judge would have to weigh the initial aim of the rule (peace in the
work) with the competing interest of the child to be able to play12.

Generally, Hart had concluded the law is largely settled but “at the margin of rules…
the courts perform a rule-producing function which administrative bodies perform centrally”
and this is so as much as judges try to obscure the creative practice with references to
interpreting the legislative intent and construction of pre-existing law13.

If judges are to practice Hart’s view on judicial discretion in hard cases such as what
had happened in Re Sigsworth, it would lead to a more preferable outcome. Victimised
people would be more likely to get what they truly deserve in such situations. With that being
11
Summers, R.S. (n.d.). Professor H.L.A. Hart's concept of law. Duku Law Journal, 1963(629), 630-670.
Retrieved from https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1879&context=dlj
12
Summers, R.S. (n.d.). Professor H.L.A. Hart's concept of law. Duku Law Journal, 1963(629), 630-670.
Retrieved from https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1879&context=dlj
13
Riddall, JG. (2nd ed.). (2005). Jurisprudence. Great Britain: Oxford University Press.
said, the law could then be seen as being in line with Hart’s open texture. Whereas, when the
High Court in Teoh Eng Huat v Kadhi of Pasir Mas Kelantan case had ruled in favour of
the minor daughter on the ground of her right to convert willingly, this had followed the
Hart’s approach also. Such judgement had in a way strike a balance between the competing
interests of the parties as one could infer that the right of the minor to choose their own
religion freely and the right of the parent to ensure their child’s happiness in life were
protected.

Based on the above discussion on Hart-Dworkin debate, it can be concluded that

Dworkin had truly rejected Hart’s notion of discretion and asserted that judges do not have a
“choice” in deciding difficult cases basing on his argument that Hart overlooked the
importance of legal principles. Legal principles are also part of the law but as opposed to
rules they do not operate in an “all-or-nothing” fashion but it is possible that they compete
with each other.

As Dworkin's critique of Hart's model of rules revolved around the role of ‘rules and
principles’ in law among other issues such as the role of customs as well as the problems of
judicial discretion and retrospection. It is clear that Dworkin found Hart's theory to be “under
inclusive”. This is due to the fact that, as according to Dworkin, Hart fails to take into
account concepts beyond rules and thus his “positivism is a model of and for a system of
rules, and its central notion of a single fundamental test for law…forces us to miss the roles
of...standards which are not rules.”

In other words, by limiting the scope of law to only rules that can be identified by the
rule of recognition, Hart failed to consider the role of the existing body of customs (for
example the royal assent and other prerogative powers in the British legal system) in law, as
well as concepts such as principles that can influence judicial decision making.

Nonetheless, it could also be concluded that it was Dworkin, and not Hart, who
initiated this debate, and it was to evaluate the validity of Hart’s positivism. In light of this, it
is my belief that Hart’s concept of law not only survives but persuasively defeats Dworkin’s
critique. This is because judges may sometimes make decisions based in part on personal
preference. Even though the ideal judge is supposed to be completely impartial, it is
impractical to expect that a judge can really leave aside his personal morals, experiences, and
other such personal aspects that may influence his decision.
he indeterminacies in the
law, argues Hart, are
desirable
because human beings are
fallible and cannot predict
any possible future
circumstances and can
therefore not
ab initio
decide whether or not such a
case should be included in
the rule. “The rigidity
of our classification will thus
war with our aims in having
or maintaining the rule”
3
As a result, it is better when
the law leaves room for
future determination of
cases. In hard cases a
judge is faced with the
question “whether the
present case resembles the
plain cases ‘sufficiently’ in
‘relevant’ respects.”
4
The judge in such a case has
discretion, which is “in effect
a choice”
5
whether to
add the new case to those
falling under the rule. He
should exercise this
discretion in deciding
whether the facts of the case
are sufficiently close to prior
cases decided under the rule
and having in
mind the initial aim of the
legislation or precedent. In
some cases “much must be
left to be developed
by courts…striking a balance,
in light of the circumstances,
between competing
interests.”
6
Hart uses
the example of a rule
prohibiting the use of
vehicles in the park and the
decision whether toy cars
should fall under the rule. In
this case a judge would have
to weight the initial aim of
the rule (peace
in the work) with the
competing interest of the
child to be able to play