Critically assess Dworkin's claim that judges do not have any discretion to make the law.
Lucy John-Emele
Critically assess Dworkin's claim that judges do not have any discretion to make the law
Dworkin's theory on judicial discretion is a component of an amalgam of theories that he advocated in the period before his interpretive turn, those being the Right answer thesis and the Rights Thesis. Judges have no judicial discretion, in the sense of having alternative permissible choices. Where there is no settled law he is not making new law as Hartian positivists would have us believe but rather he is finding the law by a process in which he makes the best sense morally and politically of all past constitutional and legislative enactments as well all judicial decisions in the jurisdiction. When giving judgement in such a case the judge is also simultaneously determining the rights of litigants .There will ultimately be only one right answer in the case because a correct analysis of the political morality the underpins all past judicial and legislative action will only yield one result. It is debatable how valid his theory actually is.
The lynch pin for Dworkin's attack on Hartian discretion was the alleged omission of principles from Harts description of what standards judges bring to bear when they make decisions . Dworkin should be credited with highlighting these other kinds of standards when it was not clear that Hartian positivism embraced them, it should also be noted that Dworkin succeeded in elucidating the adjudication process in a way that Hart failed to do.
According to Dworkin principles also functioned as grounds for deciding cases epitomised for him by the decision in Riggs v Palmer, these principles were not merely complementary but binding on judges and therefore Hartian positivism failed because it did not recognise this, and the idea of judicial discretion was the mistake that followed from that. However it has been suggested by many commentators significantly Raz that Dworkin's formulation of principles was actually wrong and therefore does not exclude the possibility of judicial discretion as he advocated it did.
Firstly in Raz's critique of Dworkin in 1972 he highlights the fact that Dworkin fails to distinguish between principles which are statements about the law and principles of the law , the latter being the only one that is legally binding. So freedom of contract is not a binding principle it is only a summary statement of the law in the area of contract law but it does not dictate a result, it at most guides the application of law. A principle of law would be 'you owe a duty of care to anyone that it is possible that you would foreseeably harm by your negligence', highly specific. So there are much less principles used in law than Dworkin actually suggests. Therefore principles of the first kind cannot be binding because they do not dictate a result they are too general.
Dworkin's formulation of principles is also at odds with the logical role of principles in the law which rather presupposes the use of discretion. Raz proposes that discretion comes in to play when there is a problem of vagueness, you need to use discretion to decide what to apply. Principles as noted by Dworkin himself are characterised by the notion of weight but the law typically does not dictate the relative weight of each principle so judicial discretion is necessary to decide the weight and there are even laws that are made with the intention of being discretionary and give the court room to decide on the basis of considerations, considerations typically guided by principles. Basically it is the idea that you need discretion to use principles. Only conclusive norms determine a particular outcome in practical reasoning to which they apply. They make it unnecessary to refer to other norms of the system in order to justify a decision.
Principles function as prima facie reasons of action and evaluation and therefore must be classified as non-conclusive norms. They provide a practical guidance without certainty as to what action or evaluation is expected where as conclusive rules are dictative. A norm which can be shown to be an ultimate conclusive reason in a case is not a principle, a principle is never so powerful that it determines by itself the conclusion of practical reasoning. A norm is a principle if there are instances when it should not be applied. For Dworkin's attack on judicial discretion to succeed then ...
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Principles function as prima facie reasons of action and evaluation and therefore must be classified as non-conclusive norms. They provide a practical guidance without certainty as to what action or evaluation is expected where as conclusive rules are dictative. A norm which can be shown to be an ultimate conclusive reason in a case is not a principle, a principle is never so powerful that it determines by itself the conclusion of practical reasoning. A norm is a principle if there are instances when it should not be applied. For Dworkin's attack on judicial discretion to succeed then he has to prove that principles are in fact always conclusive and so binding, he does not. Certainly principles just about the law cannot be.
As regards the right answer thesis which Dworkin's no judicial discretion thesis pre-supposes, this does have some value. It does not seem logical to suppose that judging is done with in a vacuum of justification. It is implausible to suggest that judges merely accept a set of rules which they have to apply without providing any explanation or justification for why he accepts them. It is perhaps naïve to say that there are no reasons of political morality which underlie or are embedded in the settled practices of the legal system, and thus it is reasonable to assume that there is a rationale to the business of judging. We know for instance that freedom of contract is a postulate of our community's political morality because it is essential to the notion of free market which is the essence of the globalised world that we live in, would anyone deny that judges do not decide with such considerations in mind? Indeed would it not be obtuse to deny that freedom of contract is part of the unconscious fabric of our political morality? Or that with in property law and indeed criminal, security of property is paramount?
Following from this, is it then incoherent to suggest that underlying this political morality is a notion of the rights that it entails for individuals. So for instance our formulation of protecting property interests prima facie attributes property owners with rights e.g.-the right to exclude people from your property.
It is understandable that Dworkin wants to find a coherent framework by which judicial decisions are made, we do not want the law to be ad hoc, an accumulation of anomalous decisions constrained only by judicial procedures and as transitory as the fashion whims of society. Why is it important that law has integrity, issues of certainty and reliability for use by citizens are all important demands of the law that come into play. However it cannot be forgotten that law is the tool of the state, not only in terms of regulating the conduct of citizens but also as the states is primary method / process for imposing sanctions. So if judicial decisions are not justified what protection does the citizen have against its arbitrary use by the state, this is obviously to overstate the case, as there are available methods like judicial review that make sure that the courts are deciding as they should be, but the point remains. Dworkin is therefore right to make it a concern of his.
However The Right Answer Thesis and the Rights thesis have been subject to an abundance of criticism . Hart insisted that the open texture of legal principles and rules meant that in some cases the law does fail to determine an answer either way and so proves partially indeterminate. For him acknowledging judicial discretion does not mean denying that judges have legal duties in every case, whether or not specific norms address the facts at issue. But Dworkin rejects that, he claims instead that in most cases judges have a legal duty to invoke some reasons rather then others, they are legally bound to reach a particular conclusion based on the correct moral evaluation of the community's legal practices and political institutions.
There are problems with this notion of a coherent political morality. We can not be sure that such a morality exists, let alone one that embraces a significant number of past judicial decisions. The law has developed over disparate societies, economically and socially, is it then feasible to suggest that through all these changes the morality that underpinned the law remained consistent, evolving in a highly specific way like a seamless web? Dworkin needs also to justify the implication that in cases where there are no settled law judges has a legal duty to honour integrity even if by doing so means a result which is not morally best. So the apartheid judge honours his political regime in deciding a case but behaves in a morally abhorrent way. So the question is should the apartheid judges decide cases according to morally correct principles which are coherent with the settled law or rather decide them according to moral principles regardless of what the law suggests, this tension/difficulty points to the inevitability of discretion to decide this ultimate evaluative decision.
The critical legal studies movement also vehemently argue against Dworkin that judicial discretion does exist and in fact no coherent political morality does exist. According to them legal arguments are indeterminate because of the conflicts of underlying principles or purposes of rules. Such conflicts according to the crits lie at the foundation of legal reasoning and cannot be reconciled. In practise one principle is treated as dominant and used more, whilst the other is held to be exceptional, so that the contradiction is not perceived to present a difficulty for the coherence of law. But the very fact that occasional appeal is made to the disfavoured principle or purpose reveals that the underlying tension is never resolved. So the coherence or the integrity of law is always an illusion because it involves the marginalisation of other principles or policies which do not fit. The crits believe that the belief advocated by Dworkin that ultimately all legal principles can be resolved rests fundamentally on a view that certain institutional patterns at the foundations of society are necessarily linked together, like democracy, the rule of law and private property. No such settlement can be definitely found because they are all contingent and malleable and dependent on the disposition of society.
It has also been advanced by commentators that judicial discretion is a reality because ultimately even moral arguments pre suppose a choice. Peczenick points out that the prima facie character of moral values and principles means that they do not provide definitive guidance to action but only moral reason. These reasons must be weighed with other considerations in order to obtain a definitive moral norm. But even then the justification of successive weightings must run out of reason at some point so thus an arbitrary assumption underlies all justification , because in justificatory arguments there is a final unjustified choice as to the values underlying axiological premises, hence discretion. The idea of discretion could only be avoided if when a judge is presented with a hard case with competing but different moral principles a judge relies on an already established set of priorities proscribed by law. So if for all such cases there was always to be found in the existing law some unique set of higher order principles assigning relative weights or priorities to such competing lower order principles. But there is no such schema for determining a hierarchy of principles, or even if we are to concede that possibility to Dworkin, there is no such demonstrable schema. .
However merit can be found in Dworkin's rejection of discretion which again involves the rights of citizens. Dworkin is opposed to the idea of judges making law because he believes in the doctrine of the separation of powers , if that is not maintained then we as citizens are faced with the proposition of unelected officials making decisions that are integral to our lives. This may be the reality of our current situation in the UK at least, but does that mean that it is a good thing? Why then the clamour by the Labour Government to limit the powers of the House of Lords, apart from obvious reasons of self interest it was also because of the appeal that they knew that it would hold with a good proportion of the electorate. Who are unhappy about the idea of people who have no duty to account to them having so much control over them in terms of having the power to veto bills that could depending on their content enhance their lives or the inverse support bills which the public oppose . Hence also the concern with the advent of the Human Rights Act 1998 in 2000 that perhaps there would be or should be a politicalisation of the courts because they would be making constitutional decisions and perhaps it was time that they showed their political colours and we moved to a model more like the American Supreme Court where the political persuasion of the judges are known. Rather than, the Brits maintaining the façade of complete judicial political impartiality.
The other problem that Dworkin has with judicial discretion is retroactive legislation. Even if the positivist defence is accepted, that a defendant or plaintiff has no cause to complain because their position was in any case uncertain so no reasonable expectations were upset, that does not negate from the fact that in the case of a defendant there was no liability at the time of the act and that the idea of the rule of law requires that official acts be in accordance with the law.
Here another criticism of Dworkin's theory becomes apparent. If there are always pre existing legal rights on one side or another in every case that comes to a court then those legal rights should also be apparent if the dispute was brought to the legislature. The legislature often changes pre -existing rights either through retroactive legislation or new law which upsets existing rights. So either Dworkin needs to explain why despite appearances to the contrary legislatures avoid upsetting pre-existing legal rights or alternatively why it is permissible for legislatures but not courts to override them. A Dworkinian might say that the institutional difference between the courts and the legislature justify this disparity but if they choose to defend this line of reasoning in that manner then what can be said of the value of such legal rights, which only the courts must honour but the legislature can change at whim.
The positivists also offer a stronger defence against the retroactive legislation critique than Dworkin supposes, which is that if one denies that there are any pre-existing legal rights then one can deny that a decision in a case is ever retroactive, because no decision can undo the past, at most it can affect the future affects of past acts. In any case there is no reason to believe that in the absence of pre-existing law the just situation is for the defendant not to lose. Both criticisms are entwined with Dworkin's fundamental objection to judicial discretion which is that judges should not make the law.
Hart thinks that the fact that judges are entrusted with law making powers to deal with disputes which the law fails to regulate may be regarded as a necessary price to pay for the avoidance of the inconvenience of alternative methods of regulation such as reference to the legislature on every occasion a dispute arises. A small price indeed if judges are constrained in the exercise of these powers and cannot instigate wide reform but only rules to deal with specific issues thrown out by a particular case and especially since ultimate control rests with the legislature who can repeal or amend a judges decision. Synonymous with this is the idea that Dworkin is deficient in his perception of rule making in the modern state. Administrative agencies which contain unelected officials constantly make regulation with the force of the law. Administrative agencies are created by legislation and some guide lines must be provided to them, but such guidance cannot dictate all the decisions and they will often act in a very limited discretionary capacity which is accepted as necessary in an age where Government functions are too large to be handled by the elected few but have to be entrusted to others. Why can analogy not be made to the courts where it could be said that similar limited law making authority is conferred on them?
Dworkin has not shown that judicial discretion does not exist for that to be true the following would have to be proved, there is one correct theory of morality, no two theories of legal practice can be equally supported, the principles of such a theory must be capable of extension to any conceivable case, there must be one correct balancing of legal principles, this balance of principles must determine a unique solution to a case and there can be no two different ways of achieving this balance. Dworkin has not been able to show that all those claims are true.
It is ironic that the very thing that one values in Dworkin's theory, his idealism, is simultaneously what marks its downfall. Perhaps Dworkin's theory is how the law should be to justify state coercion but unfortunately legal utopia has not yet arrived.
