"There is one right answer for every legal question". Discuss.

Both Hart and Dworkin accept that the rules by themselves are not always adequate and might sometimes become unclear and indeterminate, especially in the so called “hard” or unclear cases, because of the existence of ‘open texture’ or even “penumbral” cases. Joseph Raz and Kelsen, legal theorists, have also referred to the “open texture” supporting that there are “gabs” in the law. Their disagreement is as to what happens next. Hart finds refuge to the judge’s discretion whereas Dworkin to Principles. The example given in order to show the difference in their approach  is that of a local by-law which prohibits “vehicles” to enter public parks. Even if a long list of articles is identified as “vehicles” and is cited by the said by-law again it would be impossible to cover everything which might be taken as vehicle. This leads to an unclear law as to which vehicles are allowed and which are not to enter the park. Since the law is unclear Hart’s approach would be that the judge therefore must apply his discretion and in doing so he will ask himself what were the social purposes and consequences, he would consider that a park is a place of peace and quite, but also a place of recreation and enjoyment, and he would interpret the law in a way that allows roller-skates and skateboards to enter the park. On the contrary Dworkin would argue that Hart’s above approach in such a “hard case” simply means that Hart accepts that the judge in question is acting outside the law, as Hart defines it, and he is making a policy decision not based on law. Things would be otherwise if Hart would accept Dworkin’s approach and allow the judge to take into account the Dworkin’s general principles.In such a case the judge would be acting within the law.

 The distinction between rules and principles is highlighted by Dworkin by referring to the case of Riggs v. Palmer where the Court had to decide whether a grandson who killed his grandfather could nevertheless inherit him under his will, even if he had killed him to do so.  The New York Court before deciding stated that “it is quiet true that statutes regulating the making, proof and effect of wills, and the devolution of property, if literally construed, and their force and effect can in no way and under no circumstances be controlled or modified, give this property to the murderer.” Despite the fact that the wording of the statute was clear the Court continued saying that “No one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.”

 Dworkin proclaims that principles should decide the civil rights of the citizens and never policies. Policies involve the balancing of two competing interests and not competing rights of individuals. In such a case a judge can take a decision on policy grounds “in a way that fits the rest of the legal and political system.” his example being the American case of Tennesee Valley Authority v Hill which it was decided after balancing the two involving policies. It was the policy of protecting species that are endangered against the policy on economic matters; public fund should not be wasted.  The case was concerning whether they should complete the building of a dam and destroy the environment of a fish (the snail darter) or stop there work to save the fish. The Supreme Court held “that the policy of protecting endangered species was paramount over social goals.”

Dworkin when dealing with the principle/policy distinction and in support of his position that only principles apply in civil cases to the exclusion of policies he cites Lord Scarman. However he fails to note that Lord Edmund-Davies in the same case takes quite the opposite position.On the other hand when he is confronted with the fact that judicial decisions are frequently dictated by policy consideration Dworkin replies that in those cases the judge should be understood to be referring to the individual rights of each and every individual member of the community.

Once Dworkin distinguished principles and rules he further elaborated on their main differences as to how they apply. The first is that “whereas rules apply in all-or-nothing fashion (either they are valid and dispose of the question, or they are invalid and contribute nothing), principles have a dimension of “weight””. An example being is the Riggs case where one of the principles “out weighted” the other. The conflicting principles were the principle saying that the courts should follow the clear wording of the statute and on the other hand the principle of “no man should profit from his own wrong”. The latter prevailed under the circumstances in order to protect the values and morals of the society. In this case the judge found the conflicting principles applicable to the case and decided which of the two had the greater weight. The latter is a method of interpretation according to Dworkin, who calls this approach ‘integrity in law’. By selecting the one of the two applicable principles the unused principle still remains valid whereas if there are two conflicting rules then the one invalidates the other.

        

In the context of his theory, Dworkin puts forward his “one right answer” thesis i.e the proposition that all legal questions have a unique right answer. He observes that the legislature in each society may pass legislation inconsistent with earlier laws. It regulates the future and thus it is taking policies into account .Policies are not individualised and may conflict and change. He further observes that the judiciary, unlike the legislature, will try to found its decisions on past decisions and will try to locate the gravitational law of each precedent. In doing so, therefore, the judge must consider the principles which emanate from the precedent and disregard possible arguments of policy.

Dworkin, in an attempt to show that there is only one “right” answer to all legal questions proclaims that this proposition reflects the existing practice as both lawyers and judges argue as if there is one right answer and they are in search for it. Its existence he adds is evident from the fact that the judge must decide the question and some answers are better than others. In an effort to support his theory Dworkin presents an imaginary judge called Hercules, described as “a lawyer of superhuman skill, learning, patience and acumen”.         He is the man who will always identify the “one right answer”.

“Hercules must first decide (let’s call this “stage one”) upon a theory of law. Here he will consider such possibilities as conventionalism, pragmatism, and law as integrity. He will choose the theory that, in his opinion, best satisfies the criteria of fit and appeal. Having chosen a theory at stage one, he will then proceed (at stage two) to apply the law as identified by the theory selected. Thus, if he chooses conventionalism at stage one, that theory tells him to apply explicit rules identified by a basic convention. If, however, he chooses “law as integrity”, he will simply continue the process of interpretation in which he has already, thus far, been engaged: he will take the law to be identified by that set of values and principles that provides the most appealing general account adequately to fit the existing statutes and cases.”

 Hercules will take into account both the “fit” and the “moral “substantive” dimensions. While dealing with the latter Hercules will brake it into “justice”, “fairness” and “procedural fairness”. He will evaluate the three elements of the substantial dimension and shall find the optimal political solution to fit the case. If what he is examining is a Constitution or a statute Hercules will not be able to overcome them, his freedom is limited to the exploration of the outer limits of their wording. In such a case, Hercules would again have a way out as he could discover “embedded mistakes” in the statute and although he would be bound by the extrinsic meaning of its words he would be able to ignore them in formulating his opinion. Whenever Hercules examines the a precedent which he wants to exclude from the materials to which his ruling must fit, if he cannot overcome (it because of “procedural due process” which is not outweighed by “justice” and “fairness”) he will give it the most narrow construction of it’s ratio decidendi. If he is obliged to follow it and he cannot identify an “embedded mistake” then he will give it “gravitational force”.  

Having given a broad outline of Dworkin’s “one right answer” thesis it remains to discuss whether it is “bullet proof” or vulnerable in any way.

The employment of Hercules has been criticized. Since Hercules is the only son of Zeus who followed the legal profession and since common judges are only humans it is not possible for them to achieve the only one right answer each time and make the justification of their judgment the way Hercules would do. Indeed judges do make mistakes and that is why first instance judgments and appeal judgments may defer and indeed the justification of their judgment may not be always apparent in its text.

J.W Harris examines the Hercules approach and spots that Hercules’ conclusions in a given case should be expected to be problematic since his “fairness” analysis might for example lead him to pay attention to contemporary views of what a statute says rather than resorting to the statute’s legislative history in order to interpret it or that a politician’s speech might be considered as more appropriate to guide him rather than the fine print of a committee report. Harris suggests that Dworkin’s critics say that if judges imitate Hercules will become too political and he poses the following question:

“Are real judges supposed to reflect equally, so far as in them lies, each feature of the Herculian enterprise-holism, mistake elimination, determinations about what true justice requires, conclusions about contemporary  moral standards( “fairness”) and the restraints of procedural due process? Is the whole picture too grandiose to cope with the day-to-day interstitial choices which real judges have to make?” 

Dworkin’s thesis , is argued ,is to help judges make less mistakes because they will be more careful if when appealing to the “public interest” they know that what they are really doing is invoking the rights of each and every individual. On the other hand an increasing number of court decisions are based on public policy and public interest. If the judges are philosophically covered by the Dworkin thesis that whenever they do so they are in fact deciding on principle and not policies then they will continue expanding in this approach despite the fact the are not political representatives of the people.

Perhaps because of this criticism Dworkin himself said:

“We should now set aside, as a waste of important energy and resource, grand debates about……..whether there are right or best or true or soundest answers or only useful or powerful or popular ones. We could then take up instead how the decisions that in any case will be made should be made, and which of the answers that will in any case be thought right or best or true or soundest really are     

 

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