Dworkin

The courts are the capitals of law’s empire and judges are its prince. (Dworkin,
Law’s Empire) To understand Ronald Dworkin’s notion of the understanding of
the law is the concept of law as integrity. Law as integrity shows our best
practices in the light as judges should identify legal rights and duties. For Dworkin,
the law does not merely consist of rules, but includes non-rule standards such as
principles and policies. But if one has to consider judge Hercules position in “Hard
Cases”, it could have approach constructive interpretation of the law which
defines by the social practices, texts, and works of art to interpret legal practice
and gives best possible clarification to dispute in cases. Although, Dworkin thinks
otherwise, for him, law is restrained to idealism, the legal system should not use
judge’s discretion while deciding “Hard cases”, they should adhere to legal
system’s standards and guiding principles to serve justice to individuals as the
legal system is certain and supported by moral values and political justifications.
He raises two objections in this regard: First, It is not judge’s duty to make policies
and secondly, judges would be applying retroactive law if they made their
decisions on policy grounds, whereas a principled decision, judges are maintaining
the rights and duties that already exist in the legal system. Dworkin
overemphasizes positivists’ theory over judicial discretion and criticized H.L.A
Harts especially. For Hart, the law will be clear in majority cases but at the point,
they will become an uncertain because they have an ‘open textured’ language
which is an integral flaw in any language itself and therefore in “hard cases”
judiciary must exercise judgment in drawing correspondences with and
distinguishing established legal standards. One should reject the Dworkin theory
that there is always a “one right answer” to the legal cases, if abandoned the idea
of judicial discretion and replaced with an understanding that judges should
decide novel cases in accordance with the judgment and in-line them with
established legal standards. Dworkin's theory is ultimately is not one of legal
positivism since his argument that there is always “one right answer” to all the
legal cases was a radical approach of his rejection of Hart’s “Concepts of Law “a
legal positivism theory reproduced in “Taking Rights Seriously”. He thinks of legal
positivism as a very simple theory that cannot explain the law itself. For Dworkin
positivism is certain because ultimately it has to rely on some sort of master rules,
as for example, Austin sovereignty who has the habitual obedience as the source
of law, Hart who believed the rule of recognition to be the source of law and
Kelsen who thought of a basic norm “Grundnorm” as the source of law from
where all the other sources originate. However, Dworkin misunderstood the
nature of Hart's theory as the combination of primary and secondary rules of a
legal system. By Primary rules he meant rules which impose duty and a Secondary
rule includes: rules of recognition, rules of change, and rules of adjudication and
because of his misunderstanding; he has taken away the essence of the
importance of judicial discretion to legal positivism in describing Hart’s theory.
Dworkin in his sharp contrast to the positivist theory rejects the Rule of
Recognition as a pedigree test as to where the source of the principle of law lies in
the legal argument put in their best light but ultimately dependent upon the best
theory of what our legal practice justify. Dworkin further advanced his argument
that legal positivist adheres to rule of recognition and therefore there will be a
gap in deciding hard cases where legal remedies become exhausted, and here
since there are no valid legal standards suggested by the rule of recognition,
judges, therefore exercise desecration while deciding the hard. In the case of
Henningsen v Bloomfield Motors, courts held the company liable for the injuries
occurred by defected manufacturing despite the fact that the plaintiff waived of
the liability but courts held plaintiff liable as there were no clear rules that would
authorized courts to overlook wavier. According to Dworkin, legal principles play
an important role in deciding the Hard cases where there are no legal rules to
guide judges. Legal positivism overlooks such norms as they talk about Discretion
Thesis, and in cases like Henningsen is not governed by law. Therefore, Legal
positivism, in nutshell, is a model of rules only. Dworkin’s theory rests upon a
distinction that he created between principles and policies. Both principles and
policies are ultimately legal arguments. However, he misunderstood Hart’s
primary and secondary rules, to the omission of non-rule legal standards as Hart
himself stated in his “Postscript”, that there is the certain type of principles in law
which has a source like in constitution or in judicial practices of recognizing the
principles in line with case laws, yet there are some principles which are not
backed by any source. Although, he accepted that, he has overlooked principles
and it is a flaw of his book that principles are touched upon only in rush. For
Dworkin, not all legal norms are principles and cannot fit into the structure of
validation in accordance with the rule of recognition. As in the case of Riggs v
Palmer, where the rules were not able to provide with the right answer, so the
judges based their decision on the legal principles that no one can benefit from
their own wrong. Dworkin pointed out, there are preexisting rights in the society
and judges are simply upholding them, but it’s evident that there will be a gap in
analyzing of law while deciding “Hard cases” and that gap must be filled by legal
positivism with strict analysis which again requires the exercise of discretion
which is basically against the rule of law. He further draws a distinction between
arguments of fit and arguments of substance. An argument of fit is the argument
consistent with settled law by both statue and past cases, whereas, an argument
of substance, on the other hand, are concerned with political morality based on
fairness and justice particularly for novel situations. In the case of McLoughlin v O’
Brain, Dworkin analyzed that substantive arguments were taken into an account
to present case law (Fit). According to him, psychological trauma is not
recoverable under negligence action and therefore contradicting to Fit but
Decision was in the favor of Mrs. McLoughlin as judges treat people with equality
of respect and whenever it comes to “Rights” it becomes principles and become
judicially enforceable. Dworkin took Hart’s positivism too seriously; although it
was never intended to be comprehensive it failed to ascertain other legal
standards. In response to Dworkin's criticism, Hart redefined his model of rules in
his book “The Concept of law”, where he incorporates legal principles within the
rule of recognition. However, principles are legal standards for Dworkin which
need to fair, but if, accommodates within Harts model then his owe positivist
theory will be compromised. Harts refers his model as “soft positivism” because it
focuses upon moral criteria to ascertain legal principles if required by rule of
recognition. The First Amendment to the U.S. Constitution that provides freedom
of speech is an excellent example of “soft positivism”.
On the other hand, Joseph Raz, also critics Dworkin’s theory by saying he
misunderstood Harts Rule of recognition, as a rule of recognition, not only does
not recognize implicit law but it also does not identify explicit law either. Raz
points out that, Dworkin distinguishes between source and Non-source laws
which can be identified by Hart's rule of recognition as Dworkin, himself did not
suggest any rule of his own. Raz also argues that Dworkin's theory, while rebutting
positivism is constructing some of its features on positivism which is
contradictory. Whereas according to Dworkin, Raz notions of law can be referred
to as a social source and it is not supported by legal practices in the real world, it’s
impossible to find out what social law is.
There is no doubt that the existences of legal principles are based upon social
facts that needed to be accepted by state officials (rule of recognition) in order to
be effective and to challenges legal positivism. Hart’s model is acceptable, as it
inherits flexibility in soft positivism and most importantly acknowledges that
judges are guided by non-rule standards, although not abandoning the initial
suggestion that law is a social fact. However, Dworkin fails to exclude non-rule
standards from Hart’s model of rule and believed that Harts model is not
compatible with Judges having strong discretion at the edge of legal rules, in Hard
cases judges are bound by legal standards with acceptable reasoning established
with legal rules. The use of word discretion in Harts model is cannot be associated
with Dworkin senses of Strong discretion as in Hart’s model, judges have choices
to take decision inhibited by established legal rules and principles. Moreover, for
Hart, there is always NO “one right answer” to all the legal cases because they
have an ‘open textured’ language which is an integral flaw in any language itself,
there will be cases in which law is clear but also there are some uncertain and
unclear cases where judiciary would exercise judgment in drawing
correspondences with and distinguishing established legal standards. Hart’s giving
an example of a garden where it’s prohibited for vehicles from entering into the
garden but does that includes child’s toy car? And here where Dworkin’s criticism
theory lapse because just like the above example, in hard cases judges use their
discretion guided by legal principles and policies not just bound by legal
standards. It actually reflects what actual judicial practice is. Raz points out that
Dworkin's claim about courts not having discretion has been quashed down in the
chain-novel as judges not only interpret the past sources but also have a creative
role in deciding the cases. MacCommick affirms that the suggestion that judge has
a weak discretion and they are to find the right answer from the principles is
unjustifiable. Even, Greenawalt have argued that the denial of discretion is wrong
and is inconsistent with our ordinary understanding of judicial responsibilities for
opinions. Indeed, judicial discretion is desirable for creativity and flexibility
towards more reasonable justification while deciding cases. Dworkin in his book
Taking Rights seriously developed an ideal Herculean theory to hypothesis the
existence of judge Hercules because he thinks of the law as an argumentative
attitude which means the law is not only contained in the rules but it is an
attitude of argumentativeness. The law thrives on the invention of the new
argument that makes sense and has a point attached to it. The hypothetical
Hercules is therefore to judge legal arguments. Whereas, Hart endorsed that
there are the gaps in the law which can be filled by soft positivism while deciding
Hard case and judges must use discretion; since there is no one right answer to all
the legal cases and also it varies case to case, therefore, he suggested that the
cases must be left open end to decide settlement later, as it is the nature of law to
self-correct and revolutionized from time to time. Certainly, there is no “one right
answer” but if there is one, Ideal judge would follow a precedent of similar cases
but to decide in favor of morality when a novel case situation arises.
In conclusion, it can be said; Dworkin’s misunderstood Harts legal positivism by
arguing that it strictly adheres to the rule of recognition. Whereas Dworkin’s
theory, itself is neither clear nor in coherence with an interpretation of the law, it
is more of like a mixed approach to legal theory. Neither he was able to justify his
criticism as he, himself somewhat agreed to “open texture” nature of the
language of law and nor these major schools of jurisprudence (Natural law and
Positivism) were incorrect completely. One can try to cast-off some part of both
the theories while combining other parts to each other to create a more holistic
approach in jurisprudence itself