Judicial Discretion

Editorial Committee of the Cambridge Law Journal
Judicial Discretion and the Concept of Law

Author(s): Joseph M. Steiner
Source: The Cambridge Law Journal, Vol. 35, No. 1 (Apr., 1976), pp. 135-157
Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge Law
Journal
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C.LJ. Judicial Discretion and the Concept of Law 139
(i) Law is a set of rules distinguished from other rules by

institutional pedigrees traceable to the rule of recognition.
(ii) The rule of recognition is accepted by the officials of the
system as a common standard for the determination of
which rules are to be treated as law.19
(iii) Rules have open texture requiring judges to choose among
interpretations which the rules may reasonably bear.
(iv) Judges also exercise a more explicitly legislative or creative
function of altering established rules and formulating new
ones.
(v) The exercise of these discretions is informed by, inter aliat
standards generally reflected in the legal system and the
perceived aims and purposes of the rules in question;
judges exercise choice not licence.
II. Judicial Duty and the Concept of Law

Dworkin conceivesof law as a system of entitlements.20 It follows that
the judicial process is one of vindication of existing legal rights and
enforcement of existing legal obligations, existing, that is to say, before
or from the moment of the transaction or event which gave rise to the
litigation. It follows, next, that a judge does not exercise discretion
in the sense of choosing between alternative, legally respectable
decisions. It follows, further, that the material which a judge is bound
to consider in reaching his decision, which material is called c*law,"
must point to a unique result. It follows, finally, that a judge must
be bound to consider materials other than rules valid by Hart's rule
of recognition as it is easy to find cases which are not uniquely resolved
by the application of such rules.
This formulation of the model does not, however, accomplish all
that Dworkin seeks. In particular, it does not entail the conclusion
that a judge is bound to consider non-rule material in cases where
pedigreed rules do lead to a unique result. Dworkin's treatment21 of
Riggs v. Palmer22 and Henningsen v. Bloomfield Motors, lnc.2z sug-
19 There appears to be a certain element of circularity in this statement as the

identification of the officials of the system would seem logically to depend upon
identification of the rules of the system. Ignoring the problem of how the system
came to exist " in the beginning," however, we may say that a legal system
exists at a given point of time if there exists a body of individuals (whom we
shall call officials) all of whom concur in the acceptance of a fundamental rule
(rule of recognition) which indicates to them the rules by which they must govern
themselves as to tenure and conduct of office, as well as the rules which they are
to enforce vis-a-vis the general populace. In addition, the populace must generally
obey the latter rules. So formulated, the identification of the rules of the system
and the officials of the system are logically simultaneous not sequential.
20 '* Model," pp. 30-31 [23].
2i Ibid., pp. 22-29 [13-21].
22 (1889) 115 N.Y. 506, 22 N.E. 188. 23 (1950) 32 N.J. 358, 161 A. 2d 69.

156 The Cambridge Law Journal [1976]
must be transitive, i.e., in a

case involving competition between points
like C and D, C must have been chosen. If the ordering is transitive,
then the case does tell us a good deal more than that A is always to
be chosen over B. It tells a judge that in a case involving competition
between any point above and to the right of the lines radiating from A
(e.g., C) and any point below and to the left of the lines radiating from
B (e.g., D), he must choose the former point. In effect the case stands
for a rule embodying the choice of A over B and, a fortiori, decreeing
the choice of any point which dominates A over any point dominated
byB.
But that is all the guidance this precedent gives. A judge faced with
a contest between a pair of points (see Figure 2) like E and F, both
K.
-R
outside the range of the precedent, must choose. Similarly, he must

choose when the case involves competition between points like G
and H, both of which are dominated by B, or like J and K, both of
which dominate A. What must he do when the alternatives are G and
E, or E and J, or E and K, or F and K?
It might be objected that the application of additional precedents
will dictate a single correct decision in each such case. This is not true.
Precedents in combination yield no more guidance than the sum of
what is yielded by each individually. A judge's choice between the
two potential decisions in a case before him can be dictated only by a
" "
single precedent, the losing point of which dominates one possible
" "
outcome in the case at hand, and the winning point of which is
dominated by the other possible outcome in the case at hand.
If such indeterminacy can exist in this two-principle version of the
model, it cannot be doubted that the scope of judicial choice must be
quite considerable when cognisance is taken of all those principles
which Coval and Smith, and Sartorius would include in the law. The


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Editorial Committee of the Cambridge Law Journal

Judicial Discretion and the Concept of Law

This content downloaded from 62.122.79.38 on Mon, 16 Jun 2014 15:02:28 PM

(i) Law is a set of rules distinguished from other rules by

II. Judicial Duty and the Concept of Law

19 There appears to be a certain element of circularity in this statement as the

This content downloaded from 62.122.79.38 on Mon, 16 Jun 2014 15:02:28 PM

must be transitive, i.e., in a

outside the range of the precedent, must choose. Similarly, he must

This content downloaded from 62.122.79.38 on Mon, 16 Jun 2014 15:02:28 PM

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