Because the courts and judges play such an important role in the American
legal system, any theory of law which hopes to be relevant must carefully
consider the judicial branch. In particular, it must provide a detailed
account of the powers and responsibilities of judges and judicial reasoning.
Such a theory should address the question ``Can and do judges exercise
discretion when deciding cases?'' Different theories will, of course, lead
to different conclusions. Legal positivists, such as H. L. A. Hart, claim
that in hard cases judges do exercise discretion. However, while an
alternative theory of law offered by Ronald Dworkin contains some aspects of
positivism, Dworkin believes that judges do not have discretion.
It is clear then that Dworkin's theory is substantively different from legal positivism. In this paper I will consider whether or not judges have discretion. I will focus primarily on Dworkin's theory and outline the support that Dworkin offers for his argument. In doing so, I will identify an important point of divergence between Hart's positivism and Dworkin's theory of law. Finally, I will evaluate Dworkin's claim that judges do not have discretion and see if this claim will stand up to several possible objections.
Since Dworkin's theory may be seen as a response to positivism, it will be necessary to understand the positivist's claim that judges have discretion before turning to a discussion of Dworkin's theory. First, what exactly do Dworkin and positivists mean by discretion?
Dworkin distinguishes between weak discretion and strong discretion. Much ordinary usage of the term discretion refers to weak discretion. For example, to say that a decision requires a judgment call is to say that the decision-maker has discretion in a weak sense. The discretion that is often attributed to a person with final authority to make a decision is also a kind of weak discretion. Dworkin defines a stronger concept of discretion as follows: someone has discretion in making a decision if he is not bound by standards set by an authority (Dworkin, Rights, 80-81). This is the kind of discretion with which Dworkin is concerned.
It is this kind of discretion that Dworkin believes positivists refer to when they claim judges have discretion. Dworkin interprets the positivist's claim that a judge has discretion as meaning that the judge has the right to make any decision he wishes and that he is not obligated to arrive at any particular decision (Dworkin, Discretion, 631). This is the claim of the legal positivist to which Dworkin objects.
Dworkin understands rules in the positivist sense. Rules are statements of law which judges are obligated to apply when relevant. Dworkin and positivists alike believe that in most cases, those cases which Dworkin will call easy cases, judges arrive at decisions almost mechanically by applying rules. In such cases there is agreement that judges exercise no discretion in forming decisions.
So when do positivists believe that judges have discretion? Recall that for the positivist the totality of obligatory law is the sum of all rules. But there are the rare hard cases in which the rules cannot be mechanically applied. Hard cases include cases when the court overrules textbook rules, encounters an ambiguous rule which may or may not apply, chooses between two rules which might both apply, determines that there is no pre-existing rule, or must interpret an open-ended rule (Dworkin, Discretion, 627). That is, the judge has discretion to decide the outcome of the case. In such cases, Hart says judges are legislating (Murphy, 41). It follows, then, that in this small subset of cases where the rules cannot be applied, the judge is under no obligation to reach a particular outcome.
Dworkin, however, disagrees with the positivist picture that judges are obligated only to apply rules. In hard cases, Dworkin claims, judges do not make arbitrary decisions. Rather, judges appeal to something beyond rules - principles. Dworkin says that judges are obligated to turn to principles in the absence of rules (Dworkin, Rights, 82).
Because principles play such a fundamental role in Dworkin's explanation of judicial obligation, it is important to understand exactly what principles are and how they differ from rules. I will begin, as Dworkin does, with two examples of principles that judges have used in court cases (Dworkin, Rights, 74).
In Riggs v. Palmer (1889), a New York court decided a case in which a grandson who murdered his grandfather was to collect the inheritance. The court found that he could not inherit, even though there were no written statutes to support the decision. Instead, the court appealed to moral reasoning, citing the principle that no one should be permitted to profit from his own wrongdoing. This decision was to become a landmark for many other cases (Dworkin, Rights, 75).
In another case, Henningsen v. Bloomfield Motors, Inc. (1960), a 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 principle that automobile manufacturers have a special obligation because, among other reasons, cars are so essential. (Dworkin, Rights, 75-76).
These examples provide an intuitive sense of what Dworkin means by principles, but a further analysis of principles and a discussion of the distinction between rules and principles may help to illuminate Dworkin's theory.
Principles, says Dworkin, do not necessitate a particular decision the way that rules do. When a clear rule exists that should be applied to a case, the judge simply applies the rule to decide the case. Principles are not rules, but rather reasons that the judge takes into consideration. A crucial distinction between rules and principles, then, is that rules are applied all-or-nothing, whereas principles have a dimension of weight or importance. When two principles conflict, one principle may supersede another (Dworkin, Rights, 77-78).
If one principle may supersede another, then it seems that judges are not obligated to come to a particular outcome. Dworkin claims that judges still have an obligation; they are obligated to consider principles. What he means by this is that judges have an obligation to take all relevant principles into account and consider their relative weights to determine which principles are dominant.
Still, I do not think it is entirely clear what is and what isn't a principle. A principle, Dworkin says, is a standard that is to be observed ``because it is a requirement of justice or fairness or some other dimension of morality'' (Dworkin, Rights, 75). Principles may be understood as public standards of morality.
Judges, says Dworkin, are not free to act upon personal preference; they must act on public standards (Dworkin, Discretion, 635). Unlike good Congressmen, good judges cannot make decisions based on political persuasion. Instead, judges must draw on the moral norms of society (Murphy, 43). Judges, then, can not have discretion because they are bound by the principles of the judicial system and society (Murphy, 45).
In hard cases judges are not legislating, as positivists claim, they are extrapolating based on principle. Judges have an obligation not only to apply rules, but also to ensure that the legal system is consistent with the principles of the society. When judges are said to legislate, they are discovering, not making rules (Dworkin, Rights, 78).
As Dworkin understands it, the role of the courts is to protect the rights of citizens from the possibility of unjust rules or other situations in which the written laws do not adequately protect their natural (non-written) rights. Since judges have an obligation to protect rights, they must step in and make decisions to protect such rights (Murphy, 45). The character of judicial reasoning is not one of discretion, then, but of an obligation to seek out a decision based on principle that protects civil rights and upholds the moral norms of society (Dworkin, Discretion, 637).
Dworkin believes that the job of a judge is a very difficult one, one that is so difficult so as to be Herculean. Dworkin, then, does not expect that any judge (except the ideal perfect judge) will always come to the right decision. He does, however, think that there is a correct decision, a decision which accurately weighs principles, protects natural rights, and is consistent with the society's morals. Even in very hard cases, Dworkin maintains his thesis that there is a right decision (Murphy, 47). It is with this elusive decision that judges concern themselves, and while they need not find the right decision, according to Dworkin, they are obligated to seek it.
My aim thus far has been to offer a description of Dworkin's theory of judicial obligation. To recap: Legal positivism, according to Dworkin, leads to the claim that judges apply rules when possible and have discretion whenever the rules ``run out''. Dworkin, however, believes that in the absence of rules, judges appeal to principles and are obligated to uphold community standards. Judges, then, search for the right answer. I will now focus on several areas in which I believe his argument may be vulnerable to objection.
My primary objection to Dworkin's theory is, I believe, an objection frequently raised against natural law theory. Dworkin believes that citizens have natural rights (Murphy, 46). It follows as a corollary that Dworkin thinks there is a correct outcome to a decision, a morally right answer (Murphy, 47). But I do not think there is a right answer ``out there'' for judges to discover. Because Dworkin's argument seems to depend on the assumption that there is objective morality, I believe it is crippled by any attacks on objective morality. Perhaps Dworkin can reformulate an argument that judges have no discretion without reference to natural rights and right decisions, but he will have to formulate an entirely different theory to do so.
I believe the legal realist also has reason to object to Dworkin's theory independent of the objection to natural rights. Dworkin claims that judges make decisions based on general principles representing society's moral values, and that there is no place in the judicial system for the personal morals of judges (Murphy, 40). But this claim does not seem empirically correct. Judges may sometimes make decisions based in part on personal preference. Even though the ideal judge is supposed to be completely impartial, I believe it is impractical to expect that a judge can really leave aside his personal morals, formative experiences, and other such personal aspects that may influence his decision.
Not only do judges seem to make decisions based on their personal morals and political persuasions at times, but it is expected that they will do so. Consider the appointment of a judge. His appointment is a political decision; it is based not only on how good of a judge he is, but also on his personal political views. Why is this? Precisely because the personal opinions of the judge are expected to come into play during decision-making. I therefore cannot believe that there is, in fact, a real obligation upon judges to put aside their personal morals.
It might be possible to reconcile this objection with Dworkin's theory by admitting that judges can consider their personal morality, but only if they give it significantly less weight than they give to the public moral norms. Judges, then, are still obligated by principles, and are exercising a weaker sort of discretion. Dworkin does not dispute the claim that judges have weak discretion, only the claim that judges have strong discretion.
Also open to attack is Dworkin's assumption that judges are obligated to consider principles. It seems that good judges do appeal to principles in making decisions and that we want judges to take principles into consideration. But this is a different claim; it is the claim that judges should take principles into consideration, not that they are obligated to do so.
If judges are obligated, as they may be, I do not believe that Dworkin has provided adequate evidence to support his description. I am unclear as to whether Dworkin would want to say that judges are morally obligated to consider principles or that judges are both morally and legally obligated to consider principles. Either way, the task of showing that judges empirically are obligated will be both necessary and difficult.
Dworkin's description of law focuses a great deal on principles and the role that morality plays in hard cases (Murphy, 40). But he does not (in the pieces I have read) consider the possibility that just as there are cases where judges must go beyond the rules, there might be cases when judges must, or can, go beyond the principles. Dworkin takes it for granted that all cases are decided based on rules and/or principles. In doing so, I believe he neglects the possibility of the existence of another area in which judges might have discretion. While he may be able to rule out the occurrence of such very, very hard cases, he needs to address the possibility.
Most of the objections I have raised can be characterized more as forms of a single objection - the legal realist's objection. I do not believe that Dworkin's depiction of judicial reasoning is empirically accurate. Dworkin is not describing how judges actually act. Instead, he offers a picture of the ideal judge. Since there is no such thing as an actual ideal judge, I cannot consider his theory to be descriptive. Rather, it is a series of normative claims about how he thinks judges should act. I am unconvinced that judges, even good judges, are obligated to approximate the behavior of Dworkin's ideal judge Hercules.
Dworkin may, however, be correct that judges are obligated to apply rules and consider principles in all cases. Then it follows by Dworkin's definition that judges have no discretion. But when we talk about discretion, we are often concerned with discretion in a weaker sense. Dworkin does not dispute the claim that judges have weak discretion. Judges exercise such discretion whenever they subjectively determine how to balance conflicting principles. (For example, in an abortion case a judge must make a judgment as to which of two principles will trump the other: the right to privacy or the right to life.) Considered in this way, judges do have a kind of discretion, what Dworkin refers to as a form of weak discretion.
I think Dworkin makes a substantial contribution to understanding the role of judges and the judicial branch. By distinguishing between different kinds of discretion and explaining the significance of principles to judicial reasoning, Dworkin is able to provide what I think is a much more accurate picture of judicial reasoning than that offered by legal positivists. While I am not completely convinced that judges have no discretion, Dworkin's account has convinced me that judges have less discretion than the positivist seems to believe. As Dworkin says, to say that judges have discretion is to misrepresent the nature of judicial obligation (Dworkin, Discretion, 637). Yet it is also misleading to say that judicial obligation precludes discretion. Judges can exercise discretion; they exercise discretion in a so-called weaker sense.