Dworkin and Legal Positivists - Essay Example

Dworkin and legal positivists seek to provide the guidelines for impartial judicial decision making, but do so in different ways and with different results. Introduction An understanding of Ronald Dworkin’s theory of the role of judges in the concept of law and its variance with his contemporary legal positivists cannot be attempted without at least a summary exposition of what is implied by the label ‘legal positivism’. The label ‘legal positivism’ is often attached to a broad intellectual tradition, distinguished by an emphasis on certain aspects of legal thought and experience,1 rather than an a priori justification of the what law is. Therefore, as understood in this paper, legal positivism in a general and non-Dworkian sense implies that the legal validity of a given norm, and hence whether it forms part of the law of that system, depends on its sources, not its merits. This paper discusses the jurisprudential basis of impartiality in judicial decision-making based on the theory of Dworkin and juxtaposing the same with another contemporaneous legal positivist, Professor H.L.A Hart. The Legal Positivistic View on Judicial Impartiality Dworkin, in his paper ‘The Model of Rules’, identifies and attributes to Hart a four-fold doctrine:2 (1) that law consists of ‘rules’ (understood as legal standards that differ from what Dworkin calls ‘principles’); (2) that legal rules are identified via a ‘rule of recognition’; (3) that where a rule does not control a case, judges have discretion; and (4) that in those cases where judges have discretion, neither party has a pre-existing legal right to prevail. Dworkin rejects the merit of all these four doctrines, but for the purposes of the present essay we shall limit our discussion to the last two of these four doctrines identified by Dworkin. The purpose of this essay in so far as it attempts to juxtapose Dworkin’s theory with Hart’s, shall be better served if prefaced by a brief survey of how Hart perceived the impact of judicial discretion on law-making. The variance in the two approach is best illustrated by taking as an example the ‘hard cases’ to be decided by a court of law- that is, cases which have a uniquely singular problem which has not be covered by the text of the relevant statute or which it is abundantly clear has never come within the contemplation of the legislature. Hart’s View on Judicial Discretion Hart has consistently taken the view that, as a conceptual matter, what constitutes a question of law as ‘hard’ is that the pre-existing law is substantively indeterminate with respect to that question and is insufficient to determine a uniquely correct answer.3 Hard cases, therefore, arise because there is a gap or vacuum in the coverage of pre-existing law. Since, in such cases, there is no uniquely correct decision, it follows, on Hart’s view, that judges must decide hard cases by creating new legal content that renders determinate or which fills the void in the law on the issue. From the readings of Hart4, it appears sufficiently clear that if more than one decision coheres with pre-existing law, then the judge will have to make new law in deciding which of the decisions to adopt as his own. Dworkin’s View and the Points of Divergence With the same degree of consistency as Hart, Dworkin denies that judges have lawmaking discretion in hard cases. Dworkin argues that the claim that judges are not bound in hard cases by any legal standards, which he attributes to Hart, is inconsistent with legal practice. It is clear from the prominent role of principles in hard cases that, according to Dworkin, “a judge must follow a relevant principle if it applies, and that if he does not he will on that account have made a mistake”.5 But if the judge must follow relevant principles in hard cases, then he is bound by legal standards even in hard cases. Thus, if the claim that the judge has discretion to decide an issue means that the judge is unconstrained by any legal standards in making a decision on that issue, it follows that the judge does not have discretion to decide hard cases. But while Dworkin is correct in thinking that judicial decision-making is always constrained by some legal standards, it is equally doubtful whether Hart ever meant to say something dissimilar. In the Concept of Law Hart concedes that “the judge’s powers in hard cases are subject to many constraints narrowing his choice”.6 Hart, therefore, would necessarily have to concede that judges lack discretion in the strong sense that Dworkin describes.7 While the judge might always be bound by pre-existing legal standards, those standards do not always dictate a correct decision; and, when they don’t, the judge’s decision involves the exercise of discretion in the sense that it results in the creation of new legal content. Dworkin, however, rejects even this claim about judicial discretion in hard cases; on Dworkins view, there is nearly always an objectively correct answer to difficult issues of law. Dworkin illustrates this notion of the irrelevance of epistemic indeterminacy by introducing the concept of a judge of Herculean ability (or, simply put, an ‘ideal’ judge) who shall always arrive at one correct answer to a hard case.8 Indeed, on Dworkin’s view, it is precisely because the law is substantively determinate in a hard case that it makes sense to characterize one or the other litigant as being ‘entitled’ to the decision or as having a right to win the case. Conclusion: Impartiality in Judicial decision making: Was Hart more correct than Dworkin, or was Dworkin suggesting a lesser evil? From our discussion above, we can briefly surmise both the similarity and the difference in the approach of Dworkin and Hart thus: for Hart judicial decision making involves the application of the judges discretion, while Dworkin insists that in all the cases that come before the judges, they do nothing more than applying valid legal norms without the exercise of discretion; and the underlying similarity lies in both Hart’s and Dworkin’s desired objective of pursuing an impartial (or, non-arbitrary) judicial decision, which we shall deal with in some detail infra. For Dworkin, if the judges did anything other than applying valid legal norms they would be part-time legislators and that would contravene the important doctrine of the separation of powers between the legislature and the judiciary.9 It would also condemn the law to retroactive legislation, for the law made by judges would necessarily be applied by them retroactively to the cases before them. On these twin grounds Dworkin felt impelled to reject the theory that judges can or should exercise discretion. The far-reaching effects of judicial discretion are best exemplified by the fluctuating tendencies displayed by the judges of the US Supreme Court: “John Marshall Harlan was a self-proclaimed adherent of judicial self-restraint in cases dealing with national security and reapportionment who actively urged the extension of a constitutional right of privacy broad enough to embrace access to birth control. Justice Hugo Black, frequently denounced as a First Amendment activist for his opinions dealing with national security and an early and strong supporter of judicial intervention in the ‘political thicket’ of reapportionment, was a vociferous opponent of a judicially created ‘right of privacy’.”10 For Hart, in cases in which a case cannot be decided by applying only valid legal norms, the judge has “discretion” to decide the case either way.11 And technically we should have no difficulty in accepting this as correct, since the case is ex hypothesi unregulated by law in respect of its result and that makes the result legally discretionary. But the use of the term “discretion” is also misleading here, and should not be taken to mean a judge who gives up legal reasoning and adopts an aesthetic evaluation. For Hart, legal reasoning, is not simply reasoning about what legal norms already apply to the case. It is reasoning that has already valid legal norms among its major or operative premises, but also combines them in the same argument with moral or other merit-based premises. Making such discretionary allowance for judicial decision-making has the potential to create legal or constitutional imbalances that challenge the representative foundations of a democratic polity.12 Judges are undoubtedly influential law-makers, but while striving to build a legal or constitutional order, they may be prone to individual whims, fancies and moral prejudices if they are allowed the leeway to exercise discretionary powers in deciding cases where there is no pre-existing law. It may therefore seem most appropriate to conclude that though Hart’s understanding of judicial decision-making produces a more coherent chain of the nature of judicial process, Dworkin’s theory exhorts us to exercise caution in attempting to actualize judicial discretion, lest the little right causes a greater wrong. BIBLIOGRAPHY 1) Dam Subhankar, Law Making beyond Law Makers: Understanding the Little Right and the Great Wrong, 13 Tul. J. Intl & Comp. L. 109, 140 (2005) 2) Dworkin Ronald, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), 35 3) Edelman Martin, Written Constitutions, Democracy And Judicial Interpretation: The Hobgoblin Of Judicial Activism, 68 Alb. L. Rev. 585, 595 (2005) 4) Gardner John, Legal Positivism 5 ½ Myths, 46 Am. J. Juris. 199, 199 (2001) 5) Hart H.L.A., The Concept of Law, Revised edn (Oxford: Oxford University Press, 1994), 272 6) Himma Kenneth Einar, Trouble In Law’s Empire: Rethinking Dworkin’s Third Theory Of Law, 23 Oxford J. Legal Stud. 345, 346 (2003) 7) Leiter Brian, Beyond The Hart-Dworkin Debate: The Methodology Problem In Jurisprudence, 48 Am. J. Juris. 17, 19 (2003) Read More