RONALD DWORKIN’S RIGHT THESIS

A Rough Draft made by:

Sachin Kumar

Roll No: 2145

Course: B.A.LL.B. (Hons.)

Semester: 5th

Submitted to:

Dr. Manoranjan Kumar

FACULTY OF JURISPRUDENCE-I

Chanakya National Law University

A research proposal submitted in partial fulfilment of the course

JURISPRUDENCE -I

for attaining the degree B.A.LL.B. (Hons.)

AUGUST, 2021

CHANAKYA NATIONAL LAW UNIVERSITY

Nyaya Nagar, Mithapur, Patna (Bihar)-800001

 INTRODUCTION

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.

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’. 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, “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.”
 AIMS AND OBJECTIVE
1. To analyse the rights thesis in detail.

2. To discuss the relation between Dworkin’s Conception of Rights and The

Rule of Law.

HYPOTHESIS

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.

TENTATIVE CHAPTERISATION
1. Introduction
2. The Right Thesis
3. Ronald Dworkin’s Right Thesis and Article 14
4. Criticism
5. Conclusion
6. Bibliography