The Hart-Dworkin Debate: Round I-Part II: Exploring the sphere of discretion

Mr. Sayak Banerjee

                                                                                                                I.  Introduction

What fascinates me about this debate more than the “Fight of the Century” between Muhammad Ali and Joe Frazier, is that both the jurists argue on different propositions to assert their stance. This fight is not built on a single proposition to find wrong-doings, but the multitude of views flying around, with looming questions still intriguing jurisprudential followers like me, I feel this debate falls nothing short than it to be called the “Jurisprudence Debate of the Century.”

Now, it has been already clear that, Prof. Dworkin was to make an attack on positivism, and he set the ground for using Prof. Hart’s version as a target, whenever it was needed. Now, the analysis of concept of legal obligation, Prof. Dworkin sets out by taking into consideration two situations:

  • Treat legal principles the way legal rules need to be treated, so as to encompass both of them under law.
  • Treat some principles as not binding as some rules are; for which, judges can go beyond rules, or ‘law’ with the help of principles.

The two principles can be further demarcated with the help of an example. Let’s say, there is a rule that it is mandatory for people in a nation-wide lockdown, to stay in their homes and go out only between 1 p.m. and 2 p.m for shopping essential commodities. Contrast this with another example, that during this nation-wide lockdown every citizen is obligated to go out and shop for essential commodities between 1 p.m. and 2 p.m. The latter example implies that if the citizens do not follow this rule, then there will be negative consequences, but the former does not imply the same.

For Prof. Dworkin, the first situation would make the judges the bound by applying the principles, and they would be wrong if they not apply these principles. The second situation, would allow the judges to go ahead and make principles if forced to go beyond the binding standards. This second situation sets out the concept of judicial discretion, even in situations of hard cases that I will be expounding later.

A.     Concept of Discretion

Prof. Dworkin, while explaining discretion has aptly put, “Discretion like the hole in a dough nut, does not exist except as an area left open by a surrounding belt of restriction.”[i] The concept of discretion can be understood in both weak and strong sense. Consider a situation when a commanding officer has the discretion to pick any 7 soldiers in his squadron, in this situation, there is vagueness in his discretion. But if a condition is imposed such as, the commanding officer has the discretion to pick any 7 most experienced soldiers in his squadron; in this case, he would not have discretion in a weak sense. It is to state that the discretion of the commanding officer is strong in the sense that there is no pre-controlling or pre-established standard, whenever question of discretion is raised. As there is absence of questions relating to review of whether the decision was right or wrong in the first place. This is why, Prof. Dworkin states that if there is no single factor on the basis of which the weight of principles can be assessed then the judge or for that matter any person bestowed with the principle to act in accordance with the rule, would never have discretion.   

1.               Positivists arguments for judicial discretion

The argument put forth, is that judge always have discretion, even when there is a clear rule in place. This doctrine firmly stands on the ground that there is no higher authority reviewing decisions of the highest court. Thus, not accounting for principles any more than it accounts for rules. Positivists argue that a judge has no discretion even when a clear and established rule is available. Their argument relies on the ground that rules of law are vague and open-ended, to which even Prof. Hart agrees.[ii] Their arguments stems from the fact that judges give weightage to principles and at the same time look at the courts characteristically using that principle. But the real question arises whether principles actually control the judges when they decide their cases. The arguments put forth by the positivists, can be summarized as follows:

  • They argue that not all principles are binding. This is to state that they are nothing but extra-legal standards that are characteristically used by courts.
  • They argue that though some principles are binding when the judge takes them into account, a particular result cannot be determined. They argue on this ground based on the fact that when relative weights of such factors are made, then it is quite difficult to weigh on a single factor. It is for this reason that the positivists believe that principles despite being inconclusively used, would still survive. But, for a judge, then he must go with the binding rule. This still does not mean that the judge may be correct in applying the rule or for that matter principle.   
  • They argue that principles are not to be treated as law still, as their authority is controversial. In the sense that the determining location to assess validity, unlike rules which finds mostly in statutes or acts of Parliaments, or court’s opinions, interestingly finds more difficulties for principles. Instead the validity of principles is tested on the weights of other principles, or community practices.

Now for a judge if he has to argue against departures of established doctrines, then he must take into account two doctrines-legislative supremacy and precedent. Legislative supremacy is a set of principles requiring the courts to pay respect to the acts of legislatures. Doctrine of precedent reflects the consistency efficiencies. When rules are considered to be binding, then the implication is such that rules are supported by principles. But if rules are not binding then the positivists think that the principles based on the two foregoing doctrines are binding. Most importantly the positivists treat system of rules in the sense that if new rules are to be made replacing old rules, then they would uphold judicial discretion in the strong sense, that match the characteristic preferences of those judges having the discretion to change rules. Further, the positivists go on to assume that the standards of law must be rules, and principles are nothing but standards endeavouring to be rules. In short, positivists’ line of thinking stems from considerations about principles as the rules of a law about the law.[iii] Positivists refute arguments of testing rule validity, to say that, a rule if it is wrongly applied would be replaced by another competing rule. For positivists principles are not rules above law, because they are not rules at all. They still maintain the position that principles are extra-legal standards which each judge picks in accordance to his own discretion.

But Prof. Dworkin, is still not satisfied with the foregoing stance as he claims that it “is as if a zoologist had proved that fish are not mammals, and then concluded that they are really only plants.”

2.      Prof. Dworkin’s deconstruction of the positivists’ arguments

As I have already identified Prof. Dworkin’s initial tacks to provide his understanding of principles. Though Prof. Dworkin criticizes the arguments of positivists at its base only, I would start by his deconstruction of the summarized arguments of the positivists.

For the first argument, Prof. Dworkin states that the logical characteristic of principles makes it binding, despite the doubtful veracity of the binding force of principles on a legal official. Yet, he leaves it open for considering the obligatory nature of principles as distinct from the obligatory nature of rules.

For the second argument, his response is that judges believe on the binding nature of principles to recognize it in one direction, and if there are other principles pointing in another direction, which are not of equal weight, and then he must decide in accordance to what he believes to be a binding rule; For, Prof. Dworkin, principles do dictate results, and in fact he states that unless “at least some principles are acknowledged to be binding upon judges, requiring them as a set to reach particular decisions, then no rules, or very few rules, can be said to be binding upon them either.”[iv]

For the third argument, Prof. Dworkin’s argument is quite straight forward, there is no lithmus test to determine the weight of principles, naturally because if we fall back to that commanding officer example that I gave, now it is a matter of judgment that can always differ from one reasonable person to another. For this reason, we cannot simply state that the decision reached by the commanding officer will not be controversial, which is why he is required to act in accordance with the understanding of the rule-picking the experienced men for his squadron. Now, it is a weak discretion for Prof. Dworkin as it also a duty casted on the commanding officer, and also from the position of a judge to act in accordance with the rule to the best of his capabilities.

In a nutshell, Prof. Dworkin is arguing for judges disagreeing on matters of principles, in order to understand how discretion should be exercised and not what the law requires.[v] This he goes on to elaborate about where a judge’s duty lies, by stating that, first, “we say that a man has discretion if his duty is defined by standards that reasonable men can interpret in different ways…..Second, we say that a man has discretion if his decision is final, in the sense that no higher authority may review and set aside that decision, as when the decision whether a player is offside is left to the discretion of the linesman. Third, we say that a man has discretion when some set of standards which impose duties upon him do not in fact purport to impose any duty as to a particular decision, as when a clause in a lease gives the tenant the option in his discretion to renew.”[vi]

It is in this sense, that I have stated in my next article, that if the social theory was not deconstructed by Prof. Dworkin then the duties would have been strongly generated by social rules only, and the fact that judges would then, as per him, would not have to follow discretion in the third sense.[vii] This strong sense of social rule theory needed establishment by positivists to exclusively categorize judicial duty within the ambit of an ultimate social rule of recognition or any other social rule.

B.     How to account for changes in rules?

Principles necessarily found that judges advanced the changes in principles as was seen in Riggs v. Palmer case,[viii] by shifting the interpretation of statute of wills to the principle that no man should profit from his own wrong. A judge can always choose the preferred principle as would justify a shift of the rule that has been firmly established. The doctrines of legislative supremacy and precedent, as already discussed, needs to be considered as standards for deviating the principles and policies. Yet, Prof. Dworkin asserts that judges are also not free to pick principles according to their whims, to make up the doctrines-even during the rules are not binding.

When a particular rule is binding, then a person may imply that the rule is affirmatively supported by principles which the court is not free to disregard, and are collectively weightier than other principles arguing for a change. On the contrary, if this change is unacceptable, then the judge might fall back to the doctrines that were interpreted as standards. The issue becomes more complex, based on these implications, when a common law rule is still unsaved by principles that are not powerful. Hence, the principles and policies are treated as law in the sense of binding rules only. Thereby considering the standards, these principles and policies become binding upon the officials of a community which is controlling the consequences stemming out of legal rights and obligations.

As a matter of fact, if a judge wants to change rules and introduce new ones, then the theory of judicial discretion in the strong sense would be applicable and would be introduced as per the characteristic preferences of the judge.     

This is the second article in series of 6 articles dealing with the Hart-Dworkin debate. In the next post, the author would be explaining the “internalized system of rules.” For part one, click here.        

[i] Ronald M. Dworkin, Taking Rights Seriously, Harvard University Press, 31 [Hereinafter, “TRS”]

[ii] TRS, 34.

[iii]Dickinson, ‘The Law Behind Law (pts. 1 & 2),’ 29, Columbia Law Review 112, 254 (1929) cited in TRS, 39.

[iv]TRS, 37.




[viii]Riggs v. Palmer 115 N.Y.506, 22 188 (1889).   

Mr. Sayak Banerjee is a 3rd Year Student at National Law University, Jodhpur.


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