Hard Cases: Dworkin

Questions to be answered
• What is positivism?
• What theory of ‘Hard Cases’ is
provided by legal Positivism?
• What are theories of adjudication?
• What is the fundamental distinction
within political theory?
Questions to be answered
• What is argument of principle and
argument of policy?
• What is the ‘soundest theory of law’?
• How is law a ‘seamless web’?
• how right is Dworkin’s ‘right thesis’?
What is Positivism?
• Central tenets/propositions of
positivism:
• 1. The law of a community is a set of
special rules used by the community for
determining which behaviour will be
punished by the public power.
Central tenets of positivism
• These special rules are identified by
special test of their pedigree or the
manner in which they were adopted or
developed.
• These tests are used to identify valid legal
rules from spurious rules such as moral
rules
Central tenets of positivism
• 2. the set of valid rules is exhaustive of
‘the law’, so that if someone’s case is not
covered by such a rule, then that case
cannot be decided by applying the law.
• It must be decided by the judge,
‘exercising his discretion,’
Central tenets of positivism

• It means reaching beyond the law for

some other sort of standard to guide
him in inventing a fresh legal rule or
supplementing an old one.
Central tenets of positivism
• 3. to say that someone has a ‘legal obligation’ is
to say that his case falls under a valid legal rule
• There is no legal obligation in the absence of
such a valid legal rule
• It follows that when a judge decides a case by
using his discretion, he is not enforcing a legal
right as to that issue
Skeleton not flesh!!!

• This is the skeleton of positivism

• The flesh is arranged differently by
each positivist
• The description of the test of
pedigree differs from one positivist to
another
Positivism’s theory of ‘hard
cases’
• When a particular case is not covered by a
clear rule of law, then the judge has a
discretion to decide it either way.
• In practice the judge legislates new legal
rights and applies them retrospectively to
the case at hand
Hard Cases: Dworkin’s views

• Judges are under a duty to discover

what the rights of the parties are
• Not to invent new rights
retrospectively
Theories of Adjudication
• Judges should apply the law that other
institutions have made;
• They should not make new law
• This is the ideal; cannot be realized full in
practice for different reasons
• Some statutory rules & common law rules are
vague and needs to be interpreted & applied to
new cases
Dworkin
• Some cases raise novel issues that they
cannot be decided by reinterpreting
existing rules
• So judges have to make new law covertly
or explicitly
• But it is wrong to suggest that judges are
deputy legislators.
Arguments of principle/policy
• It is misleading to say that judges legislate
• It misses the fundamental distinction
within political theory
• This is the distinction between arguments
of principle and arguments of policy
Arguments of policy
• Arguments of policy justify a political
decision by showing that the decision
protects some collective goal of the
community as a whole
• The argument in favour of subsidy for
defence manufacturers that it will protect
national security is an argument of policy
Arguments of Principle
• Arguments of principle justify a political
decision if it respects or secures individual
or group rights
• The argument in favour of equal rights for
minorities is an argument of principle.
• Principles and policies are the major areas
of political justification
Legislation on these issues
• Legislation on these issues will require both sorts
of arguments.
• For example, subsidy may require an argument
of principle
• Eg. Equal subsidy for all defence manufacturers
so that weaker manufacturers are not driven out
of business.
Hard cases
• In a hard case, a proper decision could be
generated by either policy or principle
• Eg, in Spartan Steel & Alloys Ltd v. Martin & Co
(1973)
• The defendant’s employees had broken an
electrical cable belonging to a power company
that supplied power to the plaintiff,
Hard Cases
• The factory was shut down while the cable was
repaired
• The court had to decide whether to allow the
plaintiff recovery for economic loss for negligent
damage
• Spartan Steel had claimed money for loss of
profit & cost for a melt in their furnace, & loss of
profit for further melts in the furnace
Spartan Steel case
• The later claim failed,
• Claim regarding the melt in the furnace
succeeded
• The successful claim was the direct
consequence of the power cut
• Further damage was too remote
Applying principle & policy to
this case
• The court could have argued whether a firm in
the position of the plaintiff had a right to
recovery,
• Which is a matter of principle
• Or whether it would be economically wise to
distribute liability for accidents in the way the
plaintiff suggested,
• Which is a matter of policy
Dworkin’s views on cases like
this
• Judicial decisions in hard cases
like this should be generated by
principle not policy
Principles & democracy
• There are two objections to judicial
originality/judicial law making:
• 1. Since judges, in general, are not
elected they are not responsible to the
electorate the way the legislators are
Principles & democracy
• It seems to compromise that proposition
when judges make law
• A community should be governed by those
who are elected & responsible to the
majority
• In Lord Simmons words, “it’s a naked
usurpation of legislative functions”
2 objection to judicial law
nd

making
• 2. If a judge makes new law and applied it
retroactively, then the losing party will be
punished for a new duty created after the
event
2nd objection
• If the duty is created by statute the
defendant would have been put on much
more explicit notice of that duty
• The argument of principle suggests that it
is unjust to take him by surprise
How to overcome these
objections?
• Dworkin believes that these two
objections have no force when
judicial decisions are grounded
only on "principles”
What is Dworkin’s ‘right thesis’
• 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
• 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
Hart & Dworkin
• The two central figures in this debate are:

•Hart & Dworkin

Hart’s view: Vagueness in
certain rules
• “All rules involve recognizing or classifying
particular cases as instances of general terms,
and in the case of everything which we are
prepared to call a rule it is possible to distinguish
clear central cases, where it certainly applies
and others where there are reasons for both
asserting and denying that it applies (cont…)
Open texture … of a legal rule
• Nothing can eliminate this duality of a core
of certainty and a penumbra of doubt
when we are engaged in bringing
particular situations under general rules.
• This imparts to all rules a fringe of
vagueness or "open texture… “
Hart’s view
• This "creative" function of courts, is similar to
"the exercise of delegated rule-making powers
by an administrative body”
• Hart argues that when a case arises within the
"open texture" of a legal rule, a judge exercises
"discretion" to make "a choice between open
alternatives," and thus engages in a "creative or
legislative activity.”
Hart/ Neil MacCommick
• that judges “filled in the gaps” left by rules
by using their discretion.
• 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: it’s clarity.
Dworkin’s view
• Dworkin: when a judge runs out of rules "he is not
bound by any standards from the authority of law…”
• The judge is free to reach "beyond the law for some
other sort of standard to guide him in manufacturing a
fresh legal rule or supplementing an old one.
• that judicial discretion in what Dworkin calls its “Strong
Sense” does not exist.
Dworkin
• 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.
Dworkin
• 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: strong & weak
discretion
• 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.
Dworkin
• that judges are never free to exercise
"strong discretion" in deciding issues of
law, even in cases in which no legal rule
dictates a clear result.
• In such cases judges base their decisions
on non-legal rules or norms, but on legal
principles.
Dworkin
• 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

• Hart says that judges exercise

strong discretion in hard cases.
• But that seems to equate: Rules
+ Discretion = New Rules
Dworkin
• Principles are as much part of the law just like
rules
• They are equally binding on judges
• While no single principle is dispositive of a given
case, a fair consideration of all relevant
principles points to a uniquely correct answer in
even the hardest of cases
Law as a ‘seamless web’
• Because of this, Dworkin concludes that the
Anglo-American legal system is gapless,
• Judges are never free to engage in creative
judicial legislation.
• Accordingly, the law remains "an arrangement of
entitlements"
Rolf Sartorius’ view
• Rolf Sartorius, who shares Dworkin's rejection of
judicial discretion, explains:
• "[A] litigant before a court of law is not in the
position of one begging a favor from a potential
benefactor, but rather in that of one demanding
a particular decision as a matter of right, as
something to which the law entitles him.”
Dworkin: law as a seamless web
• He aims to prove that the Anglo-American
system of law is indeed gapless ("a
seamless web")
• and hence is a system of entitlements in
which there is never room for judges to
play the role of "deputy legislators.“
Dworkin’s view
• It is not altogether clear whether he also
means to contend that all legal systems
are gapless,
• but this is unlikely since it is not difficult to
imagine a legal system in which the
judiciary is vested, at least at times, with
legislative-like powers
Dworkin’s ‘right thesis’
• "judicial decisions in civil cases, even in hard
cases . ., characteristically are and should be
generated by principle not by policy.”
• The rights thesis provides that judges decide
hard cases "by confirming or denying concrete
rights" after considering all relevant principles.
Dworkin’s ‘right thesis’
• Since there is only one correct
adjudication of rights in every case, one
litigant always has the right to win
• This is viewed by Dworkin as a "genuine
political right.“
Law as a 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 enforce existing political rights,
so that litigants are entitled to the judge’s best
judgment about what their rights are.
Dworkin’s right thesis
• Even in a "hard case“ "when no settled rule
dictates a decision either way“, it is a judge's
legal obligation to determine which party has an
institutional right to win
• Different judges may come to different conclusions
• judges may not rely on their own political views but only
on their beliefs in the soundness of those convictions.
Dworkin’s right thesis
• Consequently, a judge is never free to
strike out on his own and weigh conflicting
social policies.
• His decisions must be determined by legal
principles applied consistently in like
cases.
Can the right thesis avoid the
same danger?
• Dworkin believes that the two objections, i.e. 1.
judges are not elected & shouldn’t legislate,
• 2. judges who creates new rules necessarily
impose legal duties ex post facto, which is an
‘unfair surprise’ for the losing parties, have no
force when judicial decisions are grounded only
on "principles."
Can the danger of judicial
activism be avoided?
• NO, because Dworkin's model is
no more successful in avoiding
the danger of judicial activism
than is the jurisprudential camp
he attacks.
The role of principles in …
• Rules also do not cover the development of the
Common Law through precedent and cannot
adequately explain the creation of the
“Neighbour 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.
The role of principles

• Similarly, Lord Denning’s

development of Promissory
Estoppel doctrine in High Trees
case was not pulled out of thin air
Dworkin
• Thus, rules have a different meaning and
different effect when we apply relevant
principles.
• Whereas policies are the collective goals
of society pursued by the legislature,
democratically elected,
Dworkin
• 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
• Judges are always constrained by the law
Dworkin
• In every adjudication of hard cases there
are controlling standards which the judge
is obligated to follow
• Judicial decisions are generated by
principles and enforce existing rights so
that litigants are entitled to the judge ‘best
judgment’ about what their rights are
Summary of Dworkin’s right
thesis
• In summary, Dworkin’s right thesis asserts
that a right legal answer would be one
that asserts and protects rights which are
explicit or implicit in the fundamental
values of the legal system
The right answer
• 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
Judge Hercules
• 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
• Distinguishing between rights and goals &
principles and policies
• 1. Rights are individuated as they bestow
certain entitlements on particular
individuals
• Goals are "nonindividuated" in that they
do not attach to individuals.
Right v. goal
• In order to determine whether a particular right
has been infringed, therefore, it is sufficient to
examine the facts pertaining to a single
individual;
• but to determine whether or not a particular
goal has been abandoned, it is necessary to do
more than examine the facts pertaining to any
single individual.
Right v. goal
• 2.goals are political aims that are typically
balanced and weighed against one
another in a utilitarian calculus, with the
result that "offering less of some benefit
to one man can be justified simply by
showing that this will lead to a greater
benefit overall.
Right v. goal
• Rights may also be weighed against one
another, have a certain "threshold weight"
against "ordinary, routine goals" and can be
outweighed only by "a goal of special urgency
• Thus, whether a political aim is a right or a goal
depends on its relative weight within the
underlying theory as a ground for justifying
judicial decisions
Right v. goal
• Third, fairness, in Dworkin's view, requires the
consistent enforcement of individual rights, but
not the consistent promotion of collective goals
• Thus, "it need not be a part of a responsible
strategy for reaching a collective goal that
individuals be treated alike."
Right v. goal
• Moreover, a government that serves a
collective goal on one occasion need not
serve that same goal when a similar
occasion arises, or serve it in the same
way
Right v. goal
• "[A] responsible government may serve different
goals in a piecemeal and occasional fashion, so
that even though it does not regret [sic], but
continues to enforce, one rule designed to serve
a particular goal, it may reject other rules that
would serve that same goal just as well."
Right v. goal
• If the government recognizes a certain right of
its citizens it has an obligation to effect an equal
distribution of the benefit of that right
• With these differences between principles and
policies in mind, it is possible to consider
Dworkin's suggestion that his theory accords
with the democratic ideal that collective goals be
established by elected official
Right v. goal
• The ideal is violated by Hart's theory,
Dworkin states, because judges are ill-
fitted to engage in the juggling of
competing interests that arguments of
policy require
Dworkin: Abstract & Concrete
Rights
• Abstract rights: include the general rights
available to common citizens
• Concrete rights: the specification of what
these general rights entail in specific
situations
Abstract rights
• The abstract right to use one’s home to
study or play music in it
• These are known as prima facie or
abstract because of the possible conflict
between such rights:
Abstract & Concrete Right
• My exercising of my right may invade or restrict
yours, in which case the question arises which of
us have an actual or concrete right to do as he
wishes
• In case of conflict between abstract rights, the
judge or the citizen must determine what
concrete rights the parties have in such a way as
to accord equal respect to each parties’ interest
Criticism of Dworkin
• Yet, is a judge really in a better, or even
different, position if he must determine
what weight to accord to the various
political aims in his theory of law?
• Given Dworkin's distinction between rights
and goals, it is doubtful that he would be
Criticism of Dworkin
• Rights and goals, for Dworkin, are types of
political aims that differ in degree but not
in kind
• A political aim counts as a "right" within a
political theory only if it has sufficient
threshold weight to override less than
"urgent" collective goals of the community
Criticism of Dworkin
• Thus, whether a political aim functions as a right
or goal in some political theory depends on its
relative weight in that theory
• Yet, the procedure by which a judge arrives at the
relative weight of a particular political aim is not apt to
be significantly less violative of the democratic ideal than
a judicially determined balancing of competing policy
consideration
Criticism of Dworkin
• Moreover, a judge must also determine
whether a collective goal is "urgent," in
which case it may be able to override
competing rights

•
Criticism of Dworkin
• Rarely would a judge be able to conclude
that a political aim is a right without
engaging in some type of weighing of
competing interests.
• A judge at times might be able to identify
a right simply by looking to, for example,
the language of the Constitution
Criticism of Dworkin
• The very fact that something appears as
an unmistakable constitutional entitlement
ordinarily would ensure it the status of a
right in any sound theory of law
Criticism of Dworkin
• In the hard cases the differentiation will not
always be obvious to a judge simply from
examining a particular passage in the
Constitution and relevant interpretative cases.
• It is only by referring to a political theory, which
in some manner construes the Constitution, that
a judge can conclude that certain language gives
rise to a right
Criticism
• It is only the standing of a political aim vis-a-vis
other political aims within the judge's political
theory that enables him to determine whether it
is a right
• Dworkin himself underscores this difficulty by
admitting that a political aim may be a goal in
one political theory, but function as a right in a
different theory
criticism
• In Dworkin's view, rights are individuated while
goals are not.
• Yet, a political aim stated in an individuated form
can always be readily recast into an aim in
nonindividuated form, and vice versa
• Thus, freedom of speech, an example suggested
by Dworkin, can be viewed either as a right or
as a collective goal
criticism
• This difference, therefore, is of little
assistance in deciding whether a particular
political aim should stand as a right or a
goal
• That determination still depends on the
weight accorded the political aim in a
given theory of law
Dworkin: Abstract & Concrete
Rights
• Abstract rights: include the general rights
available to common citizens
• Concrete rights: the specification of what
these general rights entail in specific
situations
Abstract rights
• The abstract right to use one’s home to
study or play music in it
• These are known as prima facie or
abstract because of the possible conflict
between such rights:
Abstract & Concrete Rights
• My exercising of my right may invade or restrict
yours, in which case the question arises which of
us have an actual or concrete right to do as he
wishes
• In case of conflict between abstract rights, the
judge or the citizen must determine what
concrete rights the parties have in such a way as
to accord equal respect to each parties’ interest
 End
• Thank you
• Q&A