DWORKIN

"Law is a seamless system with its own autonomy. It provides one correct answer to any cases, difficult or not, by application of its rules, precedents, principles and spirit."

• As Dworkin's theory involves and is based on a great deal of criticisms of Hart's theory, it would be more desirable to analyze Hart's theory first and then Dworkin's.

What's Harts theory?

• Hart, as a positivist, moved legal positivism in a different direction though he continued to insist on the importance of the separation of law from morality. 
• He rejects the "command theory" and states that law comprises rules entirely which are divided into two categories - primary (duty-imposing rules) and secondary rules (power-imposing rules).
•  Primary rules- grant rights or impose legal obligations upon the citizens, for example, criminal law consists only of primary rules. 
• Secondary rules -stipulate how primary rules are formed and validated, involving rules of change, adjudication and recognition. For instance, the rules that stipulate how Congress is composed and how it enacts legislation are secondary rules.

• One of the most important areas of Hart's theory is his"open texture theory"of the rules of law.
•  He actually derived this concept from the work of Fredrich Waismann.
• By "open-texture" - Hart means that in some situations, judges need to exercise their discretion when a case is not governed by any existing rule of law. 
• This is due to the indeterminacy of the application of rules.

Hart explains by giving three main reasons

what are the reasons Hart gives for this 'open-texturedness?'

1) Firstly, language is indeterminate. Legal rules are composed of words and they aim to communicate the required standards of behaviour. Nevertheless, words are always problematic and imprecise.

 According to Hart, one or more words in a legal rule have a core of plain meaning.However, in cases in the "penumbra" of the term's meaning (outside its core meaning) or in borderline cases, we cannot be certain whether the word should apply or not

2) Secondly, very general standards are used in the rules. Very often, we find words like 'fairness', 'reasonableness' or 'justice' in the rules which impose very general standards to all different kinds of situations. 

• Therefore, uncertainty would easily arise because of the unclear and imprecise standards.

 3) Thirdly, there is indeterminacy in the common law system of precedent. Hart pointed out that there is no clear rule governing the selection of precedents and also the process of extracting holdings. Finally, the judges may either narrow or widen the rules extracted from the precedents.

Therefore according to Hart, there is no unique answer and judges may exercise their discretion to make new laws if some situations arise and they particular cannot find any existing rule which is relevant, for example in hard cases within the area of the penumbra.

• First, he puts forward a declaratory theory of the judicial process, and appears to a certain extent a throwback to an earlier period of judicial decision-making in which the judges purported to not make law or to legislate but simply applied the law. 
• Dworkin then develops a very sophisticated view of democracy, arguing strongly for individual and minority rights – rights that cannot be overridden by the legislature on simple policy grounds. 
• This theory of democracy is linked to his view of the judicial process by the notion that judges act as the protectors of individual rights against the State as well as between individuals.

On what grounds does Dworkin criticise Positivism?

• He argues that positivism is a model of and for a system of rules, and its central notion of a single fundamental test for law forces us to miss the important roles of these standards that are not rules.

• At this margin of uncertainty, Hart states that judges or officials must use their discretion in deciding whether a particular case comes within the rule or not
• In exercising this discretion, the judge or official will look to the purposes or the social consequences of adopting a certain interpretation of the rule, for example, the competing policy arguments.
• Dworkin argues against this approach, which allows for the judge or official to make a policy decision not based on law in hard or unclear cases, stating that Hart, by seeing law solely as a system of rules, fails to take account of general principles. 
• In a hard or unclear case the judge does not revert to policy and act as a lawmaker, but applies legal principles to produce an answer based on law.

What case did D use to illustrate the application of the legal principle?

• the case of Riggs v Palmer in which a court had to decide whether a murderer could inherit under the will of a grandfather he had murdered. The court held that the relevant statutes literally gave the property of the deceased to the murderer.

But then the court reasoned:…all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law. No one shall be permitted to profit by his own fraud , or to take advantage of his own wrong, …or to acquire the property by his own crime.

• So denying the murderer his inheritance. Standards such as ‘no man may profit from his own wrong’ have, 
• according to Dworkin, relative weight when considered judicially, and so help to determine the case in favour of one of the parties when the rules have run out.

• He is suggesting that, in unclear cases, the judges do not have complete discretion to make new law, instead they fall back on legal principles to make a decision based on existing law (meaning rules and principles).
•  It is noted that in Riggs v Palmer: 
• the rules were clear: the murderer should have inherited, and the legal principle in fact overruled the rule.

It may be inferred that Dworkin is giving legal principles another role.

(i) As well as acting as the cement of the law filling in its gaps and loopholes,

(ii) they are also used to prevent injustices that would arise out of a simple application of the rules.

Apart from making new law, what does Hart say judges do in hard cases?

• Hart himself says that rather than relying on the judges using policy to deal with unclear cases, most ‘mature’ legal systems lean toward certainty and predictability by stretching the rules to deal with unclear cases.
•  However, Hart admits that the more the rules are stretched the more their application becomes artificial, leading to cases of injustice. If the legal system is seen as being compromised of both rules and overarching principles then it is possible to avoid such injustices.

According to positivists, what happens when each party to a case to be able to marshal an equally impressive set of precedents in their favour?

Positivists like Hart state that when there are such hard cases in the law, judges either have the power to make new law or, as is more likely, they stretch one line of precedents to cover the case in preference to the other line of argument. Given that they had a choice it could be argued that the reason for choosing one line of precedents over another is based not on law but not on law but non-legal factors such as considerations of what the judges think is best for society. In this sense they act as a sort of deputy lawmaker.

What does Dworkin have to say about this question?

Dworkin is arguing that in all cases, most particularly in hard cases, judges are always constrained by the law. He paints a picture of a lacunae free legal universe where in every adjudication there are legal rules and standards which the judge is oblige to follow, although he does have discretion in the weak sense of weighing the standards set him by authority. Dworkin denies that judges have discretion in the strong sense to decide cases without being bound by precedent or statute.

• Dworkin criticises pragmatism in terms of ‘fit’, how the theory ‘fits’ the actuality of the judicial process.
• Pragmatism does not fit the actuality of the judicial process because of the simple fact that judges, by and large, decide cases as if they are upholding existing rights, rather than making new law. 
• Judges look past decisions, whether of the courts or the legislature, to decide whether the plaintiff or the defendant is possessed of the legal right or the legal duty in a particular case , they do not look to the future and decide whether this decision will best maximise utility or some other social goal such as economic efficiency.
• Maximising utility or other social goals such as economic efficiency is the job of the legislature, and most judges do not purport to do it.
• Dworkin is stating that his is the descriptive theory whereas the pragmatists are being prescriptive. They are arguing how judges ought to reason. 
• Furthermore, Dworkin claims that not only does his theory best describe the judicial process; it is the better theory for society in that it preserves the judiciary in the role of the upholders of the law and of legal rights.

Dworkin’s own theory is restated as ‘law as integrity’ and he argues that it better explains how cases are decided than either conventionalism or pragmatism, and that it offers a better justification for the centralisation of sanctions found in mature legal systems.

D on Pragmatist view that judges appear to honour rights without regard to social welfare because overall welfare is advanced by acting as if some rights are impervious to such calculations

• Dworkin acknowledges that most pragmatists recognise the fact that there is an apparent discrepancy between the pragmatic theory that judges are lawmakers and the actual practise in which they seem to be applying established laws.
• Dworkin argues that the pragmatist says that judges appear to honour rights without regard to social welfare because overall welfare is advanced by acting as if some rights are impervious to such calculations. 
• Dworkin states that pragmatists advance the argument that judges somehow conspire to deceive citizens into thinking that they have legal rights when in fact all they have are ‘rules of thumb’ that could be overturned by reasons of policy dressed up as another individual’s legal rights.

Dworkin’s theory of the judicial process is based on the distinction between rights (principles) and policies (goals):

Arguments for policy justify a … decision by showing that the decision advances or protects some collective goal of the community as a whole

Arguments of principle justify a … decision by showing that the decision respects or secures some individual or group right.

• Dworkin’s main contention is that judges do not have the discretion to decide unclear cases by reference to policy, and that in fact they decide them on the basis of principles.
• He raises two objections to those pragmatists who argue for judicial decision-making on policy grounds.

1) judges are not elected to make policy decisions. His argument that judges are not mandated to create law is powerful in democracy such as the UK and Commonwealth Caribbean, where the legislature is elected for that purpose

2) judges would be applying retroactive law if they made their decisions on policy grounds, whereas a principled decision means that the judge is upholding rights and duties that already exist. Dworkin’s second argument goes to the issue of the unfairness of retroactive law. It is based on the concept accepted in most legal systems that law is meant as guide to human behaviour.If judges, on occasions, simply made the law instead of applying settled law, they would be failing to allow people to act in accordance with already established rules àIndividuals would be unable to plan their affairs to keep within the bounds of what is legally acceptable if there was a possibility that a judge might decide to extend a law or a line of precedents to cover marginal cases

• Nevertheless, the appointment of judges could be said to be politically motivated, and it could be said that judges are appointed so that they will apply the law in a particular way suited to the dominant political ideology of the day.
• This problem is quite apparent in the US where the debate over appointments in the Supreme Court takes the form of an evaluation of the relative merits of ‘conservative’ and ‘liberal’ judges.
• This seems to be a strong argument although; if judges were making new law in only a small number of cases, it could be argued that their decisions would not significantly undermine the ideal of certainty in the law.

Explain D's judicial protection and protected rights

• Dworkin describes policies as collective goals that encourage trade-offs of benefits and burdens within a community in order to produce some overall benefit for the community as a whole.
• Principles and individuated rights, such as the very general rights, such as the right to freedom of speech, may be sacrificed to the collective welfare by the legislature but not by the judiciary.
  

• However, Dworkin’s theory has a wider political import and as part of this he argues that rights cannot simply be overridden by governments using simple utilitarian calculations of what is best for the community or on what he calls ‘consequentialist’ grounds.
• But constitutional rights that we call fundamental like the right to free speech, are supposed to represent rights against the Government in the strong sense…. 
• Governments would do wrong to repeal the provision that guarantees it even if they were persuaded that the majority would be better off if speech were curtailed.

Explain D's entrenched rights

• Dworkin’s theory involves more than simply judicial protection of established rights but also has the wider dimension of entrenching certain rights. 
• His theory is designed to give special place to rights as ‘trumps’ over general utilitarian justifications throughout the legal process, not merely in hard cases.
•  He deals with hard cases by saying that they can only be decided on the basis of existing rights not policies, for the simple fact that to allow policy-making by the judiciary in these marginal cases would undermine his thesis that judges are the protectors of rights.

• Rights, whether they are derived from legal rules, or from more general legal principles, protect individuals from political decisions, even if those decisions would improve collective goals. 
• The more entrenched an individual right is the less a government is able to enact legislation which undermines that right. 

Dworkin provides a general distinction between  abstract or background rights and institutional or concrete rights.

• Background/abstract rights are rights that provide a justification for political decisions by society in the abstract. It is a general political aim the statement of which does not indicate how that general aim is to be weighed of compromised in particular circumstances against other political aims,
• institutional/concrete rights provide a justification for a decision by some particular and specified political institution.

• Dworkin gives a hypothetical example of a concrete right derived from the more general right of freedom of expression. 
• A court in deciding whether to uphold the right of a newspaper to publish secret defence plans, would weigh the newspaper’s right to freedom of expression against the competing rights of the soldiers to security. 
• The newspapers’s concrete right to publish weighs more heavily because it is supported by the background right of freedom of expression, provided that the publication does not threaten the lives of individual soldiers.

• Dworkin’s view of judicial precedent is that judges agree that earlier decisions have gravitational force or weight. 
• The legislature may make decisions inconsistent with earlier ones but a judge rarely has this independence, because he or she will always try to connect his or her decision with past decisions. 
• It is because policy decisions may be inconsistent and are not individuated that a judge, when defining the particular gravitational force of a precedent must take into account only the arguments of principles that justifies that precedent, ignoring arguments of policy. 
• In effect judges are always looking back to precedents or statutes to justify their decisions, whilst the legislature, in formulating policy and enacting it in the form of legislation, is forward-looking. 
• Further, in looking back, judges only look for principles (and rules) not, for instance, at the policy that may have generated a particular piece of legislation.

• Dworkin seems to admit that in practice this approach will not necessarily produce consistency in judicial decision-making, with the result that in the same case, different judges would come up with a different answer even though they were seeking the answer only in rules and principles.
• However, he contends that in theory there is only one single ‘right’ answer to all legal questions.
•  It appears that only one person could achieve this answer every time, that person is Hercules, Dworkin’s mythical judge, ‘a lawyer of superhuman skill, learning, patience and acumen’
• Hercules must construct a scheme of abstract and concrete principles that provides a coherent justification for all common law precedents and, so far as these are to be justified on principle, constitutional and statutory provisions as well.
• Acting on the premise that the law is a seamless web, Hercules is required to construct the theory that best fits and justifies the law as a whole (law as integrity) in order to decide any particular case. Hercules, Dworkin argues, would always come to the one right answer.
• The one right answer thesis has caused great debate amongst legal theorists but the controversy is to a certain extent overblown in that Dworkin recognises that the requirement that judges weigh up arguments based on principles introduces a weak discretion.

• When dealing with a case based solely within the common law, Dworkin says that the judge relies on his interpretation of that law which produces a scheme of principles, each with a certain weight.
• In Law's Empire, Dworkin calls this approach integrity in law. That book commences with a discussion of several illustrative cases, one of which is the negligence case of Mcloughlin v O’Brian that Dworkin uses to support his theory of common law interpretation. 
• The case concerned the question of whether the claimant could recover damages for emotional injuries suffered away from the scene of a car crash in which her family had been injured as a result of the defendant’s negligence.
• The Court of Appeal recognised that, although the defendant owed the claimant a duty of care that her emotional injuries were reasonably foreseeable.
•  Her ‘right’ to recover was limited on the policy ground that liability for negligence had to stop somewhere.
  The House of Lords reversed that decision. The argument that such a precedent could open the floodgates of litigation, as taken by the court of appeal, were not sufficiently grave in this case.
  
  

• Although Dworkin admits that on occasions policy grounds can be used to overrule a right that, according to Dworkin, can only be done by the legislature and not by the judges as the majority in that case seem to suggest.

Criticism of that case

• Again, Dworkin’s choice of examples tends to illustrate that his theory is not descriptive of what judges actually do and that,
•  if anything, he is describing the approach of a minority of the judiciary.

• As regards the common law, Dworkin adheres to the view that judges decide cases on principle not on policy, and this is the approach whether the case is difficult or straightforward.
• It appears that such an approach is inapplicable to cases involving, in whole or in part, the interpretation and application of statutes for the simple reason that, unlike the common law, statutes are mostly motivated by considerations of policy,