The history of jurisprudence is one of the most fascinating of all scholarly subjects. Individuals such as Roscoe Pound, H.L.A. Hart, and John Austin have provided individuals ranging across the disciplines with outstanding accounts of their personal philosophies about the law and the interpretation of it. When looking to the modern era, it is difficult to consider the philosophy of law without examining the much-esteemed Ronald Dworkin.
Part I – Adjudication of Hard Cases
In his well-regarded works entitled “Taking Rights Seriously” and “A Matter of Principle,” Dworkin provides an outstanding account of how judges should adjudicate hard cases. In presenting this account, he examines the discretion thesis. This thesis serves as the mechanism by which members of the judiciary should decide the most difficult of cases by establishing new law in the exercise of discretion. Dworkin assesses this thesis as evident in his comments as excerpted –
“The set of these valid legal rules is exhaustive of ‘the law’, so that if
someone’s case is not clearly covered by such a rule … then that case
cannot be decided by ‘applying the law.’ It must be decided by some
official, like a judge, ‘exercising his discretion,’ which means reaching
beyond the law for some other sort of standard to guide him in
manufacturing a fresh legal rule or supplementing an old one.
(Dworkin 1977, p. 17).”
In consideration of this viewpoint, a judge cannot make a decision about a case that fails to clearly fit under an authoritative rule by interpreting or applying the law. He or she must decide the case by promulgating or establishing a new law that was not existence prior to the adjudication. As such, the discretion thesis implies that members of the judiciary are vested with a quasi-legislative authority in cases that cannot be decided merely through the application of law. In addressing this thesis, Dworkin provides three different circumstances by which a judge may termed to have discretion. He posits the following: (1) A judge has discretion when he or she exercises judgment in the application of a legal standard to a particular case. (2) A judge has discretion when his or her decision is not subject to reversal by any external authority. (3) A judge has discretion when his or her decision is not constrained by any legal standards. As such, Dworkin believes that when a member of the judiciary adjudicates a case, he or she is not limited only by rules and regulations, but he or she can actually locate the answer in other standards. For example, he or she may do so by applying principles in which members of the judiciary are bound to consider if deemed appropriate. It is interesting to note however, that Dworkin stands in stark contrast to the viewpoint posited by H.L.A. Hart in which Hart argues that members of the judiciary possess judicial discretion when adjudicating hard cases. In contrast, Dworkin posits that the law is a flawless system wherein one must be able to locate a correct answer for every case that he or she is adjudicating by searching through the ‘moral fabric’ of the society. Dworkin also argues that judges must be capable of locating correct answers through an examination of all existing rules, principles, and other legal and societal norms and standards.
Offering support to his position, Dworkin illustrates his argument through providing the reader with a number of decided hard cases. The most memorable of these cases is the Riggs v. Palmer [15 New York (N.Y.) 506 (1889)] case that we discussed during lecture. It is through this case that we can observe the principle that “No one should be permitted to profit from his or her own wrongdoing” is the driving factor in the the case and as such, the application of the principle resulted in the same legal authority as the application of a legal rule. In his attempt to further substantiate his arguments, Dworkin introduces us to the esteemed...
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