An Evaluation of the Positions of Hart and Dworkin on the Role of Judges Faced with Hard Cases
‘Hard cases’ is a general name for those cases where the law is not clear as to who the judge should rule in favour of, which are normally due to a lack of relevant precedent. This role of judges is controversial among philosophers because if there are such gaps in the law it would appear that when decisions are made, the substance of the new ‘law’ created would be chosen by them. Defended by H. L. A. Hart in his seminal The Concept of Law , this has become the default positivist position. In what has become one of the most important debates in jurisprudence, Hart’s view has been subjected to sustained attack by the successor to his chair at Oxford, Ronald Dworkin.
For the latter, the body of the law is fully determinable, so the creation of precedents is an organic development and never a case of filling-in gaps. Dworkin shows that Hart’s theory has problems here- the most obvious being that for unelected officials to be legislating is contrary to the ‘rule of law’ as enshrined in the separation of powers. But in this essay it shall be argued that Dworkin fails to establish a stance on judicial discretion as plausible as Hart’s, due to the potential for the law to be underdetermined on some issues, particularly in view of the ultimately incommensurable nature of legal principles with legal rules.
Because Dworkin initiated this debate, we shall follow his understanding of judicial discretion, which is specifically about the duties of judges. He classifies three senses in which we use the term ‘discretion’, two weak and one strong sense. The first is when the judge’s “duty is defined by standards that reasonable men can interpret in different ways”, like a sergeant who has been ordered to pick his five most experienced men for a task. The second is different because it is not dependent on the judge’s duty as such, but on the finality of his decision. Here discretion consists in the absence of a higher authority who can revise his decision. The third and strong sense is that by which the judge is free of the duty to rule a particular way, where the authority doesn’t impose any particular standards, like the case of a sergeant ordered to pick any five men for a task. Although Hart describes the judge’s interpretation of ambiguous terms as central to discretion, it is the third and not the second sense which Dworkin discerns and objects to within Hart’s theory.
A final prefatory clarification is on the natures of the respective philosopher’s systems. Perhaps the deepest divide between them is that while Hart is a utilitarian, Dworkin is a (non-absolutist) deontologist, whose ethics centres on individual rights rather than general wellbeing. This bears on our debate because for utilitarians, where two outcomes produce the same quantity of wellbeing they are equally preferable. But for Dworkin moral questions always have an objectively right answer determined by the duty to others which is most binding. Thus, in so far as the law is moral, there will always be an objectively correct answer. This is crucial because Dworkin sees the law as essentially moral, with a ‘constellation’ of moral principles implicitly recognised in the common law tradition. These moral principles are an inherent part of the law, and are closely related to our political values of liberty, equality, and fairness.
Principles have a quality that distinguishes them from rules, which Dworkin calls ‘weight’, i.e. an added dimension. In addition to the spectrum of applicability (or relevance to a case) on which we find rules, principles also lie on a spectrum of seriousness. By definition rules cannot conflict with each other, but where principles do we weigh their seriousness against each other. Dworkin claims that the weight of principles can be discovered objectively, not in the sense of being value-free, but as having mind-independent truth.
So when the law appears to have run out –in terms of rules– the law itself has not run out but has an underlying determinacy as an integrated body of rules and principles to be reconstructed by the judge. The judge as an interpreter (and never a legislator) is duty-bound by the law to rule in accordance with its uniquely correct moral and legal answers. Thus he has no strong discretion.
Dworkin makes paramount an analogy between the nature of this interpretation and the development of a multi-authored narrative. Two conditions for the identification of the correct ruling are given. The first is that the judge search for that decision with best fit with the settled law. The judge is like an author updating a novel who, recognising the continuities of plot and setting, is duty-bound to carry on in the vein of the original. The second condition requires that this must be made with the law viewed in its best light- which gives preference to the most intelligent decisions and ethical standpoints, with particular reference to individual liberties, equality and democracy. So now the author strives to integrate inferences from the narrative structure (best fit) with the more aesthetic judgements of quality, such as tone and characterisation (best light).
These criteria do, he says, firmly guide judges to one right answer, but this is far from being a mechanical process since it relies upon the free exercise of their legal skills. Of course, the question of whether judges actually make the right decisions in practice is a separate issue- Dworkin’s claim only depends on there being a unique right answer in theory. He explains this conviction with the thought experiment of a Herculean judge whose interpretive prowess is such that he -aware he has no strong discretion always determines the answer that is the most fitting and moral one possible.
How clear the reasons for the answer being correct will vary, indeed, there are some circumstances in which no judge would be able to find them in practice. Dworkin says that a rough guide for reconstructing the integrity between these two poles is choosing the most morally satisfying decision out of those that make sufficient sense of all settled law- which means not distorting or omitting any of its key areas.
Hart accepts the distinction between rules and principles but as a positivist he rejects the notion that the latter are inherently legal- the law is solely a system of interacting rules. As above, these rules -at least insofar as they have clarity or determinacy- can run out, so Hart follows John Austin in accepting that judges have a role which includes making decisions as representatives of the government. This means discretion is not only the duty of interpreting the law, but permission to decide what it is- what Dworkin categorises as strong discretion. Hart qualifies this, however, saying that their choice must be neither arbitrary nor mechanical, and that skilful judges impartially consider the interests of all parties who will be affected by the decision.
So how determinate is the law? Hart says that (in theory) it is determinate at its core, and there the linguistic form in which it is expressed is clear enough for it to form the basis of legal decisions in general. But as the law branches out of this core the rules become less determinate, reaching into a ‘penumbra of uncertainty’ where the important concepts are limited by ambiguous language. This significant indeterminacy is responsible for hard cases, and he elaborates it with reference to the open-textured nature of language. Hart’s favoured example for explaining open-texturedness in law is the general term ‘vehicle’. This simple word, which a legal decision could well hinge upon, is not closed to a specific set of meanings but can be interpreted so as to limit or to include very different things. Hart is especially critical of the logical formalism of judges who try to over-generalise by taking arbitrary features of one case to be necessary conditions for a range of others. Ultimately “choice, not ‘logic’, would force the judge to include a toy motor car”.
One of Dworkin’s key objections to Hart’s understanding is that it means judges can punish people via retroactive laws- i.e. those affected in the case where the precedent is set. This conflicts with our common standards of justice. Of course for Dworkin judgements in hard cases do change the law, but unlike Hart’s understanding, this innovation is minor compared with the overall continuity that the new law has developed within. Hart would likely respond that the defendant should have known that there was a gap in the law on that issue and that in so acting they were running the risk of having a precedent made against them. Dworkin’s complaint is not insubstantial, but it is far from decisive.
Another argument is found in Dworkin’s use of the hard case Riggs v. Palmer to illustrate that we cannot simply follow the black letter of the law- that reference must be made to principles within the common law. He stresses that the relevant rules to this case, concerning inheritance, were central and not penumbral in their meaning- the rules were clear. But if Positivism were true judges wouldn’t have been concerned with debating the meaning of a rule with a central meaning, and it was very controversial. Judge Earl explicitly recognised a principle (not benefiting from your own wrongdoing) as running through the common law tradition, and as being decisive to his judgement. Dworkin’s argument is doubly fallacious, it assumes both that what ought to be so, is so (like all of his arguments against Hart’s theory mentioned), and that the decision in this case was the right one (begging the question against Hart’s theory which would say it was wrong). But these points still count in favour of Dworkin’s theory, because they bring attention to the strength of our moral intuitions and of the attitudes of legal professionals towards the view that there are moral principles in the law that guide us towards particular answers.
Yet there are stronger considerations to be made against Dworkin’s theory. To begin with, even when we grant that these moral principles are part of the law, after taking the holistic analysis of law that Dworkin suggests it would remain an open question whether there would be a single correct judgement on any case. It still needs to be explained what it is that guarantees that the law is fully determinate.
John Finnis makes an objection based on the problem of incommensurability. He says that Dworkin has wrongly assumed that the criteria of best fit and best light are commensurable. On the contrary, these two superlatives may well pull in different directions, as would often happen with ‘funniest’ and ‘best’. While we can actually objectively adjudicate between competing rights in terms of seriousness, these rights will sometimes require us to depart from the decisions that fit with our prior common law tradition. This is to say, they require us to check our human laws against a natural law. Of course, the principles Finnis refers to here are grounded on absolute values distinct from a particular legal system, and this is something Dworkin rejects. But here Finnis’ position is more consistent with the belief in objective moral duties in the law that he and Dworkin share. Similar points are made by philosophers as diverse as Neil MacCormick and Jacques Derrida, and they hold good:
Dworkin has contrived too hard to force the precise technical procedures of the law- understood in a descriptive sense, into the same mould as the demands upon judges as agents with a moral integrity to uphold- understood in an evaluative sense.
Overall, however, the crucial problem with Dworkin’s theory is that his own criteria for discerning the correct ruling are significantly open-textured. Hart points out that on Dworkin’s theory some of the principles contained in the law will be very general and abstract, so not only will they be unclear to judges but there is likely to be lots of overlap and conflict. The decision may be underdetermined by the absence of clearly binding duties, or a chaotic result might arise from the overdetermination of more than one possible decision having different sets of best fit and best light going for them. As such it becomes implausible to maintain that there could always be one particular principle, or particular arrangement of principles which when followed, would fit the existing legal rules on the issue best.
Although Hart’s philosophy of law (as presented in The Concept of Law) is far from comprehensive, as positivists such as Neil MacCormick have pointed out, Dworkin’s principles can be accepted under a broadened understanding of Hart’s rules, but that on the question of legal validity, these can be traced back to a rule of recognition (so a Natural Law account of authority of the law need not be conceded). In view of this especially, Hart’s views on judicial adjudication are significantly more plausible than Dworkin’s, and as we saw with its main competitor, Finnis’ Natural Law theory, strong judicial discretion is more defensible upon other theoretical systems also.
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Dworkin, Ronald, (1977), Taking Rights Seriously, London, Duckworth
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