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 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 nai?? ve 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.