LAW
Advance Jurisprudence
Ronald Dworkin: An Encounter with Legal Determinacy
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Component of an e-Content Module - (12 )
Component-I (A)- Personal Details
Principal Investigator Prof. Ranbir Singh VC NLU Delhi
Paper Coordinator Prof. Sri Krishna Deva Rao VC NLU Odisha
Content Writer Dr. Yogesh Pratap Singh Head, Glocal Law School, Saharanpur Uttar
Pradesh
Content Reviewer Prof. S.K. Bhatnagar Professor of Law, Ambedkar University, lucknow
Component-I (B)- Description of Module
Subject Name Law
Paper Name Jurisprudence
Module Name/Title Ronald Dworkin: An Encounter with Legal Determinacy
Prerequisites Understanding of legal positivism, theory of H.L.A. Hart is necessary
Objectives (i) To understand the concept of determinacy/indeterminacy of the law as argued
by the legal positivists;
(ii) Tocomprehend the criticism offered by Professor Ronald Dworkin;
(iii) To understand the process and theory of adjudication proposed by Ronald
Dworkin.
Keywords Judicial Process, adjudication, determinacy & indeterminacy of law, policy
& principle, reasons & imaginations, hard cases.
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Component-II e- Text:
Ronald Dworkin: AnEncounterwith Legal Determinacy
Introduction
Law is indeterminate to the extent that legal questions lack single right answers. In adjudication,
law is indeterminate to the extent that authoritative legal materials and methods permit multiple
outcomes to lawsuits. If arguments for radical indeterminacy are valid, they may raise serious
doubts about the possibility of legitimate, non-arbitrary legal systems and adjudicative
procedures.1In nut shell, over the years, to many commentators, legal realism and critical legal
school became a caricature remembered solely for the claim that the outcome of cases was only a
matter of “what the judge had for breakfast.”2
Understanding of Legal Determinacy
The issue of the determinacy or indeterminacy of legal texts and materials-such as statutes,
judicial decisions, legal principles and rules, and the theoretical justifications for an area of the
law-remains one of the most contentious issues in jurisprudence. Pitched against each other in
the controversy are H. L A. Hart,3 Dworkin,4Benditt,5 American Realist Jurisprudence6 and
recent exponents of Critical Legal Studies.7 Legal materials are indeterminate8 when the legal
1
Ken Kress, Legal Indeterminacy, 77.2 CAL. L. REV., (1989), available
athttp://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article.
2
RONALD DWORKIN, LAW’S EMPIRE, HARVARD UNIVERSITY PRESS 36 (1986).
3
H. L.A. HART, THE CONCEPT OF LAW, OXFORD UNIVERSITY PRESS (1961).
4
RONALD DWORKIN, TAKING RIGHTS SERIOUSLY, CAMBRIDGE MASS: HARVARD UNIVERSITY PRESS (1977).
5
THEODORE BENDITT, LAW AS RULE AND PRINCIPLE: PROBLEMS OF LEGAL PHILOSOPHY, STANFORD UNIVERSITY
PRESS (1978).
6
Andrew Altman, Legal Realism,Critical Legal Studies and Dworkin, 15.3 PHILOSOPHY & PUBLIC AFFAIRS 205-235
(1986), available at: http://www.jstor.org/stable/2265210; See also J. M. Finnis, On the Critical Legal Studies
Movement, 30 THE AMER. JOUR. OF JURIS. 21-42 (1985).
7
N. Otakpor, On Determinacy in Law, 23.1 JOUR. OF AFR. LAW 112-121 (Spring 1988).
8
Law is indeterminate means to say that the class of legal reasons is indeterminate. This class of reasons consists
of four components:
1. Legitimate sources of law (e.g., statutes, constitutions, court decisions, social policy, morality);
2. Legitimate interpretive operations that can be performed on the sources in order to generate rules of law (e.g.,
proper methods of interpreting statutes or prior cases or of reasoning about moral concepts as these figure in the
sources);
3. Legitimate interpretive operations that can be performed on the facts of record in order to generate facts of legal
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significance (e.g., proper ways of grouping and categorizing fact situations for purposes of legal analysis); and
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4. Legitimate rational operations that can be performed on facts and rules of law to finally yield particular decisions
(e.g., deductive reasoning).).
materials do not place any limit on the possible result in a case. 9 This means that a judge
presiding over a case could reach any result because the law does not constrain the judge’s
judgment. Legal materials are under-determinate, by contrast, when “the outcome [of a legal
case] must be chosen on grounds other than the law itself…….from a range of possible results
that are consistent with and limited by the law.10 In practice this means that the outcomes of a
case-and the judge’s discretion are limited by law. Finally, the law is determinate when the
judges have no discretion and the result in a case is limited to one outcome by the law.11
There are divergent views on this issue of indeterminacy. The Realists believed that the law was
‘indeterminate’ which they mean two things: first, that the law was rationally indeterminate, in
the sense that the available class of legal reasons did not justify a unique decision and second,
that the law was also casually or explanatorily indeterminate, in the sense that legal reasons did
not suffice to explain why judges decided as they did.
One of the familiar theses12 defended by Hart in his The Concept of Law is that there are some
cases in which the rules of a legal system do not clearly specify the correct legal outcome. Hart
claims that such cases arise because of the in- eliminable open-texture13 of natural language. All
general terms have a penumbral range in which it is unclear and irresolvable controversy as to
whether the term applies to some particular. Yet, this penumbral range of extensional
indeterminacy is necessarily much smaller, than the core extension in which the term’s
application is clear and uncontroversial.14 In Concept of Law, H.L.A. Hart suggests that the legal
rules judges employ to decide cases typically possess a certain indeterminacy or vagueness in
certain areas:
All rules involve recognizing or classifying particular cases as instances of
general terms, and in the case of everything which we are prepared to call a rule
it is possible to distinguish clear central cases, where it certainly applies and
others where there are reasons for both asserting and denying that it applies.
Nothing can eliminate this duality of a core of certainty and a penumbra of doubt
9
Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 UNIV. OF CHIC. L. REV. 473
(1987).
10
Id.
11
Lee J. Strang, The Role of the Common Good in Legal and Constitutional Interpretation, 3.1 UNIV. OF ST. THOM.
L. JOUR. 50 (Summer 2005).
12
H.L.A. Hart contended that the realists had greatly exaggerated the amount of indeterminacy in the law.
13
Hart actually derived this concept from the work of FredrichWaismann, which was in turn possibly based on a
constructive view of language put forward by Ludwig Wittgenstein. However, the use of the term by the two
philosophers is different. In Waismann's work, "open texture" referred to the potential vagueness of words
under extreme circumstances while Hart put forward the concept of "open texture" as an argument for why rules
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should be applied in a way which require judicial discretion.
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14
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.
when we are engaged in bringing particular situations under general rules. This
imparts to all rules a fringe of vagueness or "open texture". .. .15
[The Moral rules has no place in the system. Moral Criteria is not a necessary condition for the validity of Law]
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15
Supran.3.
Hart argues that when a case arises within the “open texture” of a legal rule, a judge exercises
‘discretion’16 to make a ‘choice between open alternatives,”17 and thus engages in a “creative or
legislative activity.”18 The realist analysis of indeterminacy sees it as both more pervasive and
deeper than the determinacy Hart attributes to the legal order.19 Thus, Hart saw legal
indeterminacy as “a peripheral phenomenon in a system of rules which, by and large, does
provide specific outcomes to cases.”20
Ronald Dworkin’s Analysis of Problem
Another justification is found in the work of Ronald Dworkin, professor of law at New York
University and professor of jurisprudence at Oxford, and one of the most influential legal
theorists.With the publication of Taking Rights Seriously, Dworkin established himself as
something of a celebrity, both inside the field of legal theory and out. In the philosophical journal
Ethics, Dworkin’s book was described as “the most significant book on philosophy of law in this
decade and surely one of the most interesting of the century. Ronald Dworkin argued that even
the amount of indeterminacy that Hart allowed was exaggerated.21 Dworkin strive to show that
in most legal cases, even in ‘hard cases’22 where there is ‘deep and intractable disagreement’
over what the law requires, ‘right’ answers can be found by searching in “reason and the
imagination” and hence there is no indeterminacy or under-determinacy.23
This may seem to leave the realist open to one of the principal criticisms which Dworkin has
made of Hart: law is more than just legal rules. It is also the ethical principles and ideals of
which the rules are an (albeit imperfect) expression, and it is these principles and ideals which
help to guide judges to a determinate outcome. Indeed, Dworkin might try to use the realist
indeterminacy analysis to his advantage: if the law were simply a collection of rules, as Hart
thinks, it would be afflicted by exactly the kind of deep and pervasive indeterminacy which the
realist posits. Yet, if the law were indeterminate to the degree suggested by realist analysis, it
would not be much more than a pious fraud: judges would be ‘legislating’ not only in penumbral
16
Supran.3 at 124.
17
Supran.3 at 124.
18
Supran. 3 at 131.
19
Andrew Altman, Legal Realism,Critical Legal Studies and Dworkin, 15.3 PHILOSOPHY & PUBLIC AFFAIRS, 205-
235 (Summer, 1986).
20
John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, or How Not to Miss the
Point of the Indeterminacy Argument, 45:84 DUKE L. JOUR. 94 (1995).
21
RONALD DWORKIN, TAKING RIGHTS SERIOUSLY, HARVARD UNIVERSITY PRESS 14 (1977) (Kindly refer to Ch. The
Model Rules I).
22
Cases which decisions deviating from the true principles of law in order to meet the exigencies presented by the
extreme hardship of one party. It is sometimes said that “hard cases make bad law” because logic is often
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shortcut in a hard case, and later attempts to justify the new law thus created often compound the original
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inadequacy of reasoning.
23
Supra n.21 at 81.
cases, but in all cases. Judges would always be creating law, in flagrant violation of their
institutional duty to apply preexisting law. The Dworkinian may conclude that we face this
choice: either include principles and ideals as part of the law in order to contain (and, perhaps,
eliminate) the indeterminacy it would have were it simply a collection of rules or admit that
common-law adjudication is a fraud.
Dworkin says that theories of adjudication have become more sophisticated, but the most popular
theories still put judging in the shade of legislation. Judges should apply law that other
institutions have made; they should not make new law.24 That is the ideal, but for different
reasons it cannot be realized fully in practice. Statutes and common law rules are often vague
and must be interpreted before they can be applied to novel cases. Some cases, moreover, raise
issues so novel that they cannot be decided even by stretching or reinterpreting existing rules. So,
judges sometimes make new law, either covertly or explicitly.25
He contends, first, that judges are never free to exercise “strong discretion” in deciding issues of
law, even in cases in which no legal rule dictates a clear result.26 When a judge runs out of
“textbook rules” Dworkin asserts, he must base his decision not on non-legal standards or norms,
but rather on what may be called legal principles.27 Legal principles, in Dworkin’s opinion, are
as much a part of the law as are the black-letter rules, and are equally binding on judges. In those
cases in which the rules did not clearly decide the case, it was the principles that would “guide
judges to a determinate outcome.” Moreover, while no single principle is dispositive of a given
cause, a fair consideration of all relevant principles points to a uniquely correct answer in even
the hardest of cases.
Secondly, in reply to Hart’s thesis that fully developed legal systems have a social “rule of
recognition” that identifies authoritatively all the rules of the system and that thus can be used by
judges to isolate the standards they must consider in deciding hard cases.28
S. No. Main Tenets of Positivism Dworkin’s Position
1. Law consists of rules with pedigrees Model of rules cannot account for constraints
on judges in hard cases
2. The law stops where these rules stop; cases not Principles and policies are also part of law, and
covered by rules must be decided through judges must respect them
discretion
3. Legal obligations arise (only) from rules Judges decide cases not covered by rules in
accordance with (principles of) law, not by use
of discretion
24
Ronald Dworkin, Hard Cases, 88.6 HARV.L. REV. 1058 (April 1975).
25
Id.
26
See Dworkin, Rights Thesis, 74.6 MICH. L. REV. 1168 (May, 1976). (Dworkin has not denied that judges are
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sometimes granted discretion as, for example, in fixing criminal sentences.).
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27
Id.
28
Supran.3 at 92.
If principles are not considered part of law,
then there are few binding rules of law, because
rules can be overturned
No test for principles other than acceptance;
thus there is no ultimate test of law in the form
of a rule of recognition
[Table 1: Comparative Chart of Main Tenets of Positivism and Ronald Dworkin’s Criticisms on it]
Dworkin denies that there can be any social criterion or set of social criteria that can effectively
identify all of the standards of judge must consider.29 Any such rule of recognition cannot be a
social rule, as Hart supposes, but must itself be a normative rule inextricably bound to moral and
political theory. In hard cases he30 attempts to explore more fully the notion of the “soundest
theory of law” and to demonstrate with greater precision the role played by moral and political
theory in its construction and application.31The discovery process of a Dworkinian Judge
(Hercules) exemplifies the idea that principles governing hard cases are internal to the law.' He
necessarily incorporates the realm of political morality, an area in which judges often differ."His
argument may be depicted with the following graphic:
Figure 2: THE MORAL IMPACT THEORY CONTRASTED WITH DWORKIN’S THEORY OF LAW
[The thick arrow represents moral justification while thin arrow represents moral consequence]
29
Ronald M. Dworkin, Model of Rules, 35.1 THE UNIV. OF CHIC. L. REV.14-46 (Autumn,1967).
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30
While illustrating the process used in deciding a hard case Dworkin idealize’s Hercules as his omnipotent judge
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who makes political and moral judgments during adjudication process.
31
Supra n.26 at 1170.
Dworkin aims to prove that the Anglo-American system of law is indeed gapless (“a seamless
web”)32 and hence is a system of entitlements in which there is never room for judges to play the
role of “deputy legislators”.33 His principal contention in hard cases, entitled “the rights thesis” is
that:
Judicial decisions in civil cases, even in hard cases ….characteristically are and
should be generated by principle not policy.34 The rights thesis provides that
judges decide hard cases “by confirming or denying concrete rights” after
considering all relevant principles.35 Since there is only one correct adjudication
of rights in every case, one litigant always has the rights to win,36 a right that
Dworkin views as a “genuine political right”.37
“Policy” is a standard that sets out a goal to be reached, generally an
improvement in some economic, political, or social feature of the
community(though some goals are negative, in that they stipulate that some
present feature is to be protected from adverse change. Principle is a standard
that is to be observe, not because it will advance or secure and economic,
political, or social institution deemed desirable, but because it is a requirement of
justice or fairness or some other dimensions of morality. Thus the standard that
automobile accidents are to be decreased is a policy, and the standard that no
man may profit by his own wrong a principle.
The policy and principle distinction as given by Dworkin can be explained with the help of
following illustrations: (a) Elmer's Case [Riggs v. Palmer, 22 N.E. 188 (1889)] (b) Henningson v.
Bloomfield Motors, Inc. [Supreme Court of New Jersey, 1960, 32 N.J. 358], (c) KeshvanandBharti
v. State of Kerala AIR 1973 SC 1461 (d) .
(a) Illustration I: Elmer's Case [Riggs v. Palmer, 22 N.E. 188 (1889)]
One of the cases to explain Dworkin’s thesis is Elmer's case where, the deceased, Mr. Palmer
made a will to his grandson, the defendant of his estate. After that, Mr. Palmer remarried and
because of that, the defendant was afraid that his grandfather may change his will at any time and
he will get nothing. Therefore, he decided to murder Mr. Palmer and finally, he was convicted
and was sentenced to imprisonment for a couple of years. The question raised by this case is
whether the defendant should be legally entitled to will after he came out of the jail. According
to the New York State Statue, this will is valid and the defendant was entitled to it. However
eventually, the majority of the court decided the case against him as they based their arguments
32
Supra n.24 at 1093-96.
33
Supra n.24 at 1058.
34
Supra n.24 at 1160.
35
Supra n. 24 at 1078.
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36
Supra n.24 at 1082.
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37
Dworkin, Rights Thesis, 74.6 MICH. L. REV. 1168 at 1066.
on the long-established principle, “No one should be permitted to profit by his own fraud, or to
take advantage of his own wrong.” This case illustrates that when deciding cases, judges need to
search for the correct answer in all the standards in the society, that is both rules and principles -
the latter being part of the community's moral and political culture and exist independently of
legal institutions enacting the rules of law. We can see that the principle, “No one should be
permitted to profit from his wrongdoing” is the determining factor in the Elmer's case and its
application resulted in the same legal authority as the application of a legal rule.38
(b) Illustration II:Henningson v. Bloomfield Motors, Inc. [Supreme Court of New Jersey,
1960, 32 N.J. 358]
Plaintiff Mr. Henningsen purchased a new automobile from defendant Bloomfield Motors, Inc.
He also signed a contract which said that the manufacturer’s liability for defects was limited to
“making good” defective parts. This warranty was expressly in lieu of all other warranties,
obligation or liabilities. Ten days after the purchase, while his wife was driving the car, the
steering mechanism of the vehicle failed, causing an accident which damaged the car.
Henningsen’s wife sued both Bloomfield and Chrysler; her husband joined in the action seeking
recovery of consequential losses. Both claims were based on alleged breach of implied warranty
of merchantability imposed by the Uniform Sales Act, 1906. The defense relied on a contractual
disclaimer of warranty, which the Sales Act would permit. The disclaimer was printed on the
back of the contract in extremely small print. It purported to limit liability for any breach of
warranty to replacement of defective parts within 90 days of the sale or before the car had been
driven 4,000 miles, whichever period was shorter. The sales contract was printed on one page,
front and back, which the most of the front print in 12 point type. After the signature portion, the
type became much smaller. The final two paragraphs printed on the front of the contract attested
that the agreement was complete, that the signers were over the age of 21, and that the signers
had “read the matter printed on the back hereof and agree to it as a part of this order the same as
if it were printed above my signature.” Henningsen testified that he did not read the final two
paragraphs or any of the printed material on the back of the form.39
The New Jersey court, finding no applicable rules, decided that automobile manufacturers could
not claim limited liability for defective parts and the damages caused by them. The court based
its decision on the principle40 that automobile manufacturers have a special obligation in
connection with the construction, promotion and sale of his cars, because, among other reasons,
38
See Dr.AbidHussain, Islamic Laws of Inheritance, ISLAM 101.available at:
http://www.islam101.com/sociology/inheritance.htm. (It would be pertinent to know here that under Muslim
Personal Law this principle has been accepted as law. Allah's Messenger (SAWS) said “One who kills a man
cannot inherit from him." (Tirmidhi and IbnMajah). All the scholars agree that intentional or unjustifiable
killing according to Sharia is a bar to inheritance because if such people are allowed to kill and then benefit
from the estate of the victim, it will encourage incidents of homicide.).
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39
See JCT, STANDARD FORM OF MEASURED TERMS CONTRACT, SWEET &MAXWELL(2005).
40
SeeJ. BEATSON, ANSON’S LAW OF CONTRACT, OXFORD UNIVERSITY PRESS (28th ed. 2010). See also
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MICHAEL FURMSTON, CHESHIRE, FITFOOT & FURMSTON’S LAW OF CONTRACT, OXFORD
UNIVERSITY PRESS (5th ed. 2007).
cars are so essential. Consequently, the courts must examine purchase agreements closely to see
if consumer and public interests are treated fairly.41
(c) Illustration III:KeshvanandBharti v. State of Kerala AIR 1973 SC 1461
In the Indian context, Dworkin’s theory may be explained with the help of principle of Basic
Structure as propounded by the Supreme Court in KeshvanandBharti v. State of Kerala. The
dispute about the nature and extent of Parliament’s power to amend the constitution and
specifically the fundamental rights arose immediately with the enactment of first constitutional
amendment in 1950. This was due to the fact that provision relating to amendment of the
constitution did not mention about the nature of the power and extent thereof? Though the apex
court then held that there is no limitation on the power of the Parliament but the question
“are there principles that justify substantive limitations upon parliament’s amending
authority?”was continuously troubling the constitutional law scholars, lawyers and judges. The
matter was finally settled in KeshvanandBharti v. State of Keralawhen a thirteen judge bench of
the Supreme Court observed that in a democratic constitution, there is no place for absolute
power. It enunciated principle of basic structure by declaring that the Parliament in the capacity
of representative of we the people, can exercise the constituent power but in exercise of this
power Parliament cannot destroy the basic structure of the constitution.
(d).Illustration IV:Sahara India Real Estate v. Securities & Exch. Board of India(SEBI), C.A.
No. 9813 of 2011 and C.A. No. 9833 of 2011
A dispute between the Sahara Group and Capital market regulator SEBI (Securities and Exchange
Board of India) arose due to alleged leakage of sensitive confidential communication inter
parties and their consequential publication by the media. While on one hand constitution has
guaranteed freedom of speech and expression, which includes freedom of press/media, and any
prior restraint on the publication, amounts to unreasonable restriction.42 On the other hand
constitution also guarantees every person free and fair trial which is a fundamental postulate of our
justice delivery system. What is the recourse when freedom of media which has been extended to
media trials hampers the right to get a fair and impartial trial?
A constitution bench of the Supreme Court finding no applicable rule to resolve the problem
evolved a new principle namely “doctrine of postponement of order”, to make a delicate balance
between these two rights. The postponement of reporting order in the opinion of the Supreme
Court is a “neutralizing device”evolved by the courts to balance interests of equal weightage,
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41
Supra n. 29 at 24.
42
SeeBrijBhusan v. Delhi, AIR 1950 SC 129. It was held by the Supreme Court that imposition of pre-censorship on
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a news paper will be violative of Article 19(1)(a). See alsoR. Rajgopal v. State of Tamil Nadu, AIR 1995 SC
264.
viz. freedom of expression vis-à-vis freedom of trial when a credible case could be made that it
would serve the cause of justice. The bench observed that:43
When there is no other practical means that is capable of avoiding the real and
substantial risk of prejudice to the connected trials, postponement orders safeguards the
fairness of such trials.
Dworkin believes that judges should confine themselves to the dispute and not allow matters of
general policy to influence their positions. Courts should not act as deputy legislatures making
decisions based upon policy issues, and thus, judges should be restrained to decide controversies
according to legal precepts, and not policies. The concept that cases should be decided on the
basis of principles is at the foundation of Dworkin's "rights thesis.” Its purpose was to explain the
proper area of court decision-making by rationally limiting judicial discretion.
Concluding Remarks
Dworkin's elucidation may not be accepted by legal parlance but his contributions are
nevertheless phenomenal. Jurisprudential schools in general and positivism in particular, are
struggling with the problem of subjectivity and seeking theories which can be verified externally.
Though, the human factor does play an indubitably important part in decision-making. Legal
positivism seems to underplay the essential validity of sociological jurisprudence, and unduly
isolates the moral tenets of natural law. Dworkin’s view seems to be closer to reality by
including political morality in his decision-making process.
On a careful analysis of the problem he appears to be somewhere inthe middle of legal realism,
natural law and positivism. His stress on the extent to which the selection of rules and
determination of their applicability to facts is controlled by principles penetratingly shakes-up
the "ruling theory" of positivism. His claim that political morality plays a pivotal rolein
determining the selection of principles serves to reunify law and morality. These contributions of
Prof. Ronald Dworkin are substantial and praiseworthy, but the insistence on the presence of
preexisting rights in institutional history yielding one right answer is not descriptive of the legal
arena or the world.
********************
43
12
SeeC.A. No. 9813 of 2011 and C.A. No. 9833 of 2011. The Supreme Court also made it explicit that orders of
postponement should not perturb the content of the publication and such orders would only be appropriate in cases
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where the balancing test otherwise favours non-publication for a limited period.
