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Dworkin and interpretivism

August 22, 2024

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This article has been written by Anubha Tewari. This article aims to provide a thorough understanding of Ronald Dworkin’s theory of law which is commonly associated with the doctrine of interpretivism. This article provides a detailed overview of the approach of Ronald Dworkin to the concept of law and his theory of interpretation.

Table of Contents

Introduction

Interpretivism is a philosophical approach for determining the concept of law that emphasizes attaining a clear and complete idea behind the meaning of legal text by taking into consideration the purpose, context, and moral values embodied by those legal principles. It is a crucial theory of law that focuses on interpreting laws in order to identify the principles in question and their impact on an individual’s rights and responsibilities in a society. In other words, the doctrine of legal interpretivism is based on interpreting the Constitution and further contemplating that the legal rights and duties in the Constitution must be interpreted through the practice of lawyers and jurists. Therefore, unlike other legal philosophies, legal interpretivism considers law as something not established from outside but as the outcome of the practice of the law by such lawyers and jurists.

The doctrine of legal interpretivism is commonly associated with Ronald Dworkin, who is an American scholar and jurist, known for being the strongest critic of legal positivism. Ronald Dworkin developed an original legal theory of interpretivism and argued that the judges are not the creators of the law, but rather they interpret the existing laws. Dworkin’s theory of interpretivism further transcended other legal theories of natural law and legal positivism which views the concept of law as based on morality, ethics, and social construction. Therefore, Dworkin’s theory of interpretivism developed a special kind of concept to determine the nature of law in which legal rights and duties are determined by the set of principles that underlie and govern political practice. In this article, we shall determine Dworkin’s approach towards law and his theory of legal interpretivism, its applicability, and its criticism.

Critique of positivism

The meaning of the term ‘legal positivism’ is ambiguous, and this expression is used in order to refer to law as a social phenomenon. The positive law designated a heterogenous variety of attitudes, theses, conceptions, and doctrines, all of which, in different ways, seek to determine the meaning of law. Some of these ways are incompatible with each other, whereas other ways are interlinked with each other in some way. In 1958, Hart published his famous essay named ‘Positivism and the Separation of Law and Morals’ in order to identify and distinguish these various attitudes, theses, conceptions, and doctrines through his theory of legal positivism. It was Hart’s first fruitful attempt to throw considerable light on the subject by clarifying distinctions and elaborating the meaning of such doctrines, which led to increased intelligibility regarding the concept of law through the theory of legal positivism.

Ronald Dworkin was one of the most influential legal philosophers who established a third alternative (legal interpretivism) to the theories of legal positivism and natural law theory. Dworkin challenged the theory of legal positivism in the following ways:

Dworkin criticized the idea that legal positivism states that law is composed of rules only and argued that law is not only composed of rules but also principles and policies;
Dworkin criticized the separation between law and morals given by the legal positivists and argued that law is made keeping in mind the moral principles, and further contended that judges also interpret laws keeping in mind the moral principles;
Dworkin also criticized Hart’s theory of legal positivism, which states that all law is a product of deliberation supported by people, and such laws are aimed at changing society through the creation of such rules, but Dworkin argued that Hart ignored the fact that legal rights may even exist in the absence of any explicit legislation.

The three distinctive meanings of legal positivism

Legal philosophers such as Jeremy Bentham and John Austin during the 18th and 19th centuries largely developed a theory of law known as legal positivism. It is based on an analytical school of jurisprudence which states that the source of law is identified and established by the legal authority and further recognized and accepted by society. The word ‘positivism’ derives its meaning from the Latin word ‘positum’ which means that a law is positive or posited (as it is laid down). Therefore, according to the doctrine of legal positivism, law is man-made and is defined formally, which is further opposed to being natural as derived from the theory of natural law. The foundation of legal positivism is based on three theses that distinguish legal positivism from other theories of law which are detailed as follows:

Legal Validity Thesis

MacCormick, a legal philosopher and legal positivist contended that the legal system is a set of rules that are commonly recognized in the courts and in society generally. These sets of rules are the common criteria for recognizing and identifying the law. The legal validity thesis of legal positivism is based on applying the criteria contained in these sets of rules that are recognized by the court which can further aid in ascertaining whether a rule is legally valid. Therefore, the legal validity thesis is based on the rule of recognition, where if a question is raised as to whether a rule is legally valid, the rule of recognition shall be applied in order to ascertain the legal validity of such a rule.

A legal positivist named Hart developed the concept of a rule of recognition that specifies some features that provide an indication of whether a rule is legally valid or not. Further, Hart acknowledges the fact that every rule cannot be clearly ascertained as to whether such a rule is legally valid or not through the concept of a rule of recognition due to which he used the word usually in stating the legal validity thesis. In addition, Hart believed that valid primary rules can be identified through the rule of recognition and further provided that a rule of recognition exists if it is accepted and used as a practice by legal authorities.

The Separation Thesis

The separation thesis asserts that criteria for legal validity do not include moral principles, and the legal validity of a rule is distinct from the moral principles of the rule. Hart suggested that all rules that meet the criteria of validity should be regarded as law, even though some of these rules offend the principles of morality. Therefore, the legal validity of a rule and moral principles are two distinct issues. In addition, if a rule satisfies the criteria of a rule of recognition, it should be regarded as legally valid, no matter how immoral that legal rule appears to be. Hart also contended that it does not completely assert that there is no connection between law and morality and that moral standards are never incorporated into the rule of recognition. For instance, the makers of the law use moral ideas in deciding the content of the legal rules, and judges, while interpreting the legal rules, consider the moral purpose behind such rules. Hart acknowledges that the rule of recognition might incorporate moral principles as criteria for validity and cites the United States Constitution as an example.

Legal Obligation Thesis

The legal obligation thesis states that any person is required to comply with legally valid rules, and the judges are also obligated to interpret the legally valid rules while deciding the legal issues. The legal obligation thesis also states that any citizen shall have the obligation to apply a legally valid rule only if the courts have a legal obligation to do so. McCormick suggests that, as judges are appointed to judicial offices, they must apply valid rules of law whenever relevant. Raz asserts that the court’s obligation to apply valid law is a legal obligation. Further, Hart used the term legal obligation to refer to the requirement of legal rule, and with respect to the rule of recognition, judges are required to apply it to the accepted practice identified by the criteria that they provide. Therefore, positivists seem to indicate that judges in any legal system have a legal obligation to apply any rule identified as valid by the criteria contained in the rule of recognition. In addition, an obligation refers to a duty that arises from certain rules embedded in social practices and the most important social practice is the court’s acceptance and rule of recognition. Thus, according to positivists, legally valid rules are either absolutely binding on the courts or binding unless the legally specified exceptions are applied and this obligation is imposed by the rule of recognition which is further applied to case law rules as well as rules in other domains of law.

Hart’s approach towards legal positivism

Hart’s theory of legal positivism was initiated and developed in the form of criticism of Austin’s theory of legal positivism, which highlights various rules governing human conduct. According to Austin, there are some laws that are not morally acceptable but are binding for humans because they are set by God and are known as divine laws, and other laws made by humans for humans are called positive laws. Moreover, all other standards, customs, and traditions are not proper sources of law. Austin further contended that a law is a command traceable to a sovereign, and in cases of non-compliance, it is backed by retribution. Therefore, most of the standards, customs, etc. considered positive morality by him are not laws because of the following reasons:

These standards are informally recognized without any authority;
The violation of such standards, which are informally recognized, does not amount to any kind of punishment for their non-compliance.

Hart rejected this notion of Austin’s theory of legal positivism and stated that laws are distinguished in terms of primary and secondary rules of law. The primary laws were similar to the idea of Austin’s positive law, which imposes obligations on the people. Further, Austin’s conception of positive law does not recognize the secondary law, which was all about the primary rules themselves. According to Hart’s theory of legal positivism, these secondary rules specify the way in which primary rules may be introduced, ascertained, varied, or altered. Hart further highlights that the combination of primary and secondary law is not sufficient to portray it as a legal system. Therefore, Hart established the ultimate rule of recognition, which authorizes the creation and application of legal rules. Hence, Hart rejects that an ultimate sovereign is a source for validating laws, establishes an ultimate criterion rule of recognition for determining legitimacy in the legal system, and also accepts that there is no relationship between morals and laws.

Dworkin’s approach towards legal positivism

Dworkin identified the fundamental grounds for criticizing the theory of legal positivism and targeted Hart’s conception of legal positivism. He only targeted Hart’s theory of legal positivism because he was not only concerned with the defects in that theory but also, according to him, Hart’s theory presented the most primitive view of legal positivism. Dworkin criticizes legal positivism by distinguishing Austin’s and Hart’s conceptions of legal positivism. According to Dworkin, Hart’s approach to legal positivism was more complex than Austin’s in many ways, such as how Austin distinguishes the rules in terms of primary and secondary, whereas Hart includes a broader perspective of rules and rejects the basis of command provided by Austin. Further, the criteria developed by Hart for the application and validity of legal rules, known as the rule of recognition, were more complex than Austin’s conception of rules as a command because the legitimacy granted by Hart to the legal rules through the rule of recognition is more credible than a mere command given by the sovereign.

Dworkin, through his article, ‘The Models of Rules I’, introduced the distinction of principles from policies as well as from rules in order to criticize legal positivism, which states that law is just a system of rules. Dworkin criticized Hart’s theory of legal positivism by stating that when lawyers reason or dispute regarding legal rights and obligations, they make use of standards that do not just function as rules but operate differently as principles, policies, and other sorts of standards.

Therefore, in order to critique positive law, especially Hart’s conception of positive law, Dworkin distinguished the terms, namely principles, rules, and policies, which are detailed as follows:

Principles versus policies

Dworkin has developed a difference between principles and policies, and principles are more fundamental than policies in a legal system. The policies contain certain principles that already existed before their expression in the form of policies. Dworkin opposed Hart’s view that principles develop from policies because, according to him, principles are more important and are developed in the legal system through the application of political morality. According to Dworkin, principles refer to certain standards that are required to be applied and complied with while deciding a case to fulfill the requirement of justice or some other aspect of morality, whereas policies refer to a standard established in order to formulate a goal that needs to be attained, especially in the form of improvement in a social, economic, or political factor. Such goals can be negative as well, which aims to protect some factors from adverse changes.

Rules versus principles

Dworkin further distinguishes rules from principles to critique Hart’s theory of legal positivism, for which he used the example of a case named Riggs v. Palmer, (1889), where the murderer claimed that he was entitled to inherit the property of his grandfather, whom he murdered. The legal rules relating to testamentary at that time did not deal with such facts. The Court of Appeal of New York held that legal rules are subject to the maxim in common law which states that no person can benefit from his own wrong, due to which the murderer was not granted the right to the victim’s property. Further, in the case of Henningsen v. Bloomfield Motors, (1960), the Supreme Court of New Jersey faced the question of whether an automobile manufacturer can limit his liability if the automobile is found defective. The court held that the plaintiff should be granted compensation for his medical expenses due to the fault of the manufacturer. There is no statute to decide this situation, but in the interest of the public and the requirements of the consumer, the defendant has to compensate the plaintiff for his medical expenses.

Dworkin contended that in both cases, the court has relied on principles rather than rules for deciding the dispute between parties where no prior legal rule was applicable. Dworkin further distinguished rules and principles in the following way:

A rule is binding and comes with the mandate that a case must be decided according to the already established legal rule, whereas a principle, unlike rules, does not necessarily impact the decision of a case;
Any rule that is valid does not conflict with any other rule, whereas a valid principle may conflict with each other but individually does not lose its importance.

Dworkin contended two major arguments against the theory of legal positivism through an examination of the distinction between rules and principles. Firstly, legal positivism ignores the impact of principles in decisions even in those cases where rules are clear, and secondly, it exaggerates the role of discretion in cases where no rules are applicable or rules are ambiguous. Dworkin further criticized that, according to legal positivism, if a case is not within the purview of an established rule, the judges have discretion which can be exercised only in the light of the sources of rules as highlighted in the rule of recognition. The scope of discretion defined by positivism was not tenable because judges decide cases considering moral and social factors.

Dworkin and “hard cases”

Legal positivism provides a theory of hard cases that states that if a particular case between the parties cannot be brought under a clear rule of law laid down in advance by the legal institution, then the judge has the discretion to decide the case either way. The opinion of legal positivists regarding the hard cases is written in a way that assumes that one or the other party had a pre-existing right to win the case, which only exists in fiction, and, in reality, the judges have legislated new laws and applied them retrospectively to the case at hand. Dworkin criticized the theory of hard cases provided by the positivists and states that even when there is no settled law to dispose of the case, one party may nevertheless have a right to win, but it remains the judge’s duty to discover the rights of the party and not invent new rights retrospectively. Dworkin also states that reasonable lawyers and judges will often disagree about legal rights, just as citizens disagree about political rights.

Hart was the one who first talked about the hard and easy cases, and according to him, a judge has to apply legal rules in easy cases, but in hard cases, they must act as a de facto legislator who can fill the gaps between the laws through the interpretation of existing rules and laws. Hart also focuses on the discretion of the judge in resolving hard cases. Dworkin criticizes Hart’s theory of hard cases and states that the judges must act in a legislative capacity, and they should decide the hard cases by taking into account the principles that justify those legal rules. Dworkin further contended that judges must look at the principles on which the legal rule has been made before deciding hard cases, and how judges interpret these principles and apply them to resolve hard cases is their discretion.

The concept of hard cases

The various jurisprudents have given their interpretation of the term “hard cases” in a different way. The legal positivists, including Twining and Miers stated that a hard case is a case in which a judge thinks that the letter of the statute is clear and unambiguous and further has crucial reservations about the application of the statute interpreted by them. Further, they distinguish the hard case from a difficult case, wherein the judges think that the letter of statute is not clear. Dworkin’s approach to the hard case was slightly different from positivism and defined the hard case as follows:

A particular case cannot be resolved by well-established or settled legal principles;
The judge has the discretion to decide such cases either way.

Dworkin does not provide any nature or characteristics of the hard cases nor provide any instructions as to how the judge will determine that a particular case is a hard one. He only provides some guidelines that when no established legal rule can be applied to a case and reasonable lawyers disagree on rights, such a case shall be regarded as a hard case. Therefore, Dworkin developed two kinds of hard cases which are as follows:

A case where there can be no application of an already established legal rule;
A case with an application of a legal rule that does not completely provide proper guidance.

Analysis of Dworkin’s approach towards hard cases

Usually, the cases in court are decided by the judge’s examination of the factual situation of the case and its legal context, but when it comes to hard cases, it is too difficult to decide the case with regard to the legal context. The hard cases are defined by Dworkin as when no well-established law dictates a decision in either way. A judge’s intuitive judgment is important while deciding a case, and a hard case occurs when this intuitive judgment is unsettled or ambiguous. In a hard case, the judge, in order to settle the dispute, has to modify the examination of legal rules and statutes to arrive at a final decision. Further, such modifications of rules to decide a hard case can lead to modifications of overriding principles, which should not happen, and the dispute between the parties should be resolved without modifying these overriding principles. Therefore, in deciding a hard case, the judges are required to go beyond the immediate context of the case in order to resolve the unsettled nature of such a case.

If we apply Rawls’ theory of narrow and wide equilibrium versions in the hard cases, a narrow equilibrium focuses on integrating judgments about any given case with explanatory standards, and a wider equilibrium takes into account overarching normative theories. The distinction between narrow and wide equilibrium is that narrow equilibrium focuses on judgments, rules, and mid-level explanatory principles, whereas wide equilibrium is applied in a limited way in practical terms with regard to a set of principles and frameworks. A narrow equilibrium is achieved when there is a connection between the judge’s examination of a case and the existing legal standards which is often difficult to achieve in hard cases, due to which it is important to switch to a wider form of equilibrium in hard cases. Hence, the judges would normally start with a narrow interpretation of the cases, and if it cannot be decided within the narrow parameters, they should shift to a wider interpretation in order to achieve an outcome in a case.

Dworkin distinguishes two types of legal arguments in hard cases, i.e., arguments on principles and policies. The argument of policy is to justify a political decision by showing that the decision protects some collective goal of the community as a whole, whereas the argument of principle is to justify a political decision by showing that decision secures the rights of a group or some individuals. Dworkin contended that judicial decisions even in hard cases should be based on principles and not policy due to the following reasons:

The judges before their appointment are not as good as legislators in policymaking;
The policy-made decision in the judiciary amounts to retroactive legislation;
Judges must develop the best available theory that supports the other rules in deciding the hard cases;
If it appears to judges that any theory is indeterminative, judges shall use principles of moral and political philosophy to support that area of law;
The judges must examine principles that protect pre-existing legal rights while deciding a hard case, and such legal rights must be concrete and legally valid. For ascertaining such principles, judges are protected from forming their decisions on political morality by judicial autonomy, and the same mode of analysis is used for statutory interpretation;
The judicial interpretation must be based on a coherent set of well-justified moral principles to ensure integrity in such a judicial interpretation of a hard case;
The judges must ensure that their decisions are consistent with the principles embedded in precedent;
The judges must also ensure that the principles they have included to decide or govern one case are fully examined in other case laws.

Dworkin asserted that judges should decide hard cases by interpreting the political structure of their community in order to find the best justification through principles of political morality to provide a structure from the most profound constitutional rules and details of the provisions. For instance, a private law of tort or contract can be interpreted by judges considering the principles of political morality while deciding the hard cases. Therefore, Dworkin believed that the job of a judge is a difficult one, and he compared the job of a judge to being Herculean. Dworkin also never expects that any judge will always arrive at the right interpretation of the law. Further, Dworkin believes that there is a correct interpretation that can be achieved by the judges through accurately weighing principles that protect natural rights and are consistent with the moral principles of society. In addition, Dworkin states that even in hard cases, there is a right decision that can be achieved by the judge through the correct interpretation of principles embedding the natural and moral rights of society.

Dworkin and discretion

Dworkin contended that all the philosophical theories about judicial discretion are critical not only because they are wrong but also because they weaken the crucial confidence of the layman in the objectivity of judicial reasoning. Dworkin attempts to target the positive role of judicial discretion by using the term ‘discretion’ in its strong sense and states that in an area of discretion, there are no standards that bind the judge. He criticized that most jurisprudents use the term in its weak sense by binding a judge under some standards by which he shall decide the cases, particularly the hard cases. Dworkin further argued that legal realists and positivists failed to recognize the wider scope of judges in the area of judicial discretion. The legal philosophers’ discussion of judicial discretion before the twentieth century was largely focused on the differences between the theories of American legal realists and some important English legal positivists.

The American legal realists always arrived at the conclusion that judicial discretion is not the only commonplace in the administration of the law but a necessary requirement in the legal system. The legal positivists contended a different view from American legal realists on judicial discretion. The positivists argued that law needs no recourse to other disciplines in its proper functioning and that correct legal decisions can be simply achieved by strictly applying logical means under purely legal rules. The legal positivists in the mid-century analyzed the tools of language that initiated a gradual understanding between the realists and positivists regarding the question of judicial discretion. Hart was primarily responsible for helping the positivists identify all the uncertainty surrounding all legal rules and concepts, which further makes them unsuitable for correct deductive application in particular cases. Dworkin developed the formal models of judicial reasoning that were appropriate for applying in discretionary situations and pursued several important questions, which are as follows:

How can judges find the best possible solution in a decision-making situation where the law does not necessarily provide them with any particular correct solution?
How can the method by which judges find solutions to judicial problems be briefly described where the law does not dictate uniquely correct outcomes?
What ingredients must be included in the list of acceptable sources of law?

Dworkin’s notions of discretion

According to Dworkin, the judges do not merely exercise their judicial discretion because they are authorized to make the final decision in a particular case. Dworkin further clarified that when he is referring to judicial discretion, it does not mean he is suggesting that judges have authority to make ambiguous or incorrect decisions; rather, he is focusing the attention of judges on the nature of the standard employed in reaching a particular decision in a case. Moreover, Dworkin further suggested that judges are bound to exercise their discretion when they are required to invent new principles in order to resolve a case, especially when the well-established rule of law fails to provide a final decision in a particular case.

Dworkin also asserted that some academicians believe that in the area of discretion, the judges are not bound to apply any specific standards to arrive at a decision in a case; rather, they should apply other means except for the application of these specific standards which further grants the judges the freedom to choose in what way they shall arrive at a final decision in a particular case. Even though the discretion of the judges is limited to a range of situations or certain possible effects, the discretion is still present when judges are allowed to pursue personal goals within those boundaries while arriving at a decision. The judges have discretion in decision-making when the governing standards of a case allow these judges the right to arrive at any decision and deny another person the right to claim a particular decision from the judge.

Therefore, limited discretion can be defined as the range of choices for judges while making a particular decision being limited or restricted, but within that limited range of choices, the judges are given the absolute power to have freedom of choice while arriving at a particular decision. If this definition of discretion is accepted then Dworkin’s view is correct when determining a particular case. Further, if a situation lies within the area of judicial discretion, such a situation shall be sufficient justification for a discretionary decision.

Dworkin further contended that judges do not have the discretion to exercise their own judgment; rather, they have a moral obligation to arrive at a decision that is correct or the best possible option for the parties in a particular case. For instance, the businessman possesses the discretion to make a decision related to their business affairs which are limited by certain policies such as the pursuit of victory or success and no one has the right to expect a particular decision from them. Therefore, such people exercise their discretion freely while making a decision for their business affairs and are not bound by any moral obligation to arrive at the best possible decision for the people employed in their business and they can further pursue their decision in any way that is of no concern to people associated with or employed in their businesses.

In addition, Dworkin also introduces the third criterion of judicial discretion, which states that a judge shall be justified in applying his private prejudices as a ground for arriving at a final decision rather than being expected to apply public standards for making a final decision in a case. According to Dworkin, the judges shall enjoy discretion only when they are free to adopt their personal preferences as the standard for making a judicial decision. Therefore, Dworkin introduces some negative conditions in his views on judicial discretion. According to Dworkin, judicial discretion means that judges should apply their personal preferences rather than public standards. A decision shall not be based on judicial discretion if:

The decision of the judge in a particular case is governed by certain policies, or
Judges have to follow broadly accepted community standards rather than following their personal preferences.

Analysis of Dworkin’s views on judicial discretion

There were many grounds on which Dworkin’s views on judicial discretion had been criticized, as he denied the kind of judicial discretion recognized long ago by the jurisprudents for the daily administration of law. Dworkin overall altered the meaning of discretion, as in traditional terms, discretion refers to a practical necessity for allowing judges to interpret the general laws in particular circumstances of a case, but Dworkin contended that judges should exercise their discretion on the moral ground alone. Therefore, Dworkin concluded that if judges are allowed discretion then they are bound by the moral expectation that they will not use anything more than their own personal preferences or prejudices in resolving a case.

The meaning of discretion in ordinary English usage

Dworkin claimed that his concept of discretion is derived from a careful examination of ordinary language. His conclusions in discretion can be examined against the traditional usage of the term as provided under the Oxford English Dictionary which states that in ordinary non-legal usage, the term has a wide range of meanings and among them, Dworkin’s notion does align with the narrow usage of the term which means that the discretion seems to indicate an uncontrolled choice. Therefore, the term discretion refers to the liberty of deciding or acting according to one’s own judgment or the way as one thinks fit, but still with the suggestion of uncontrolled power of disposal. The wider meaning of the term discretion included suggesting good or sound judgment or having the ability to distinguish between what is right and wrong, especially with regard to one’s own conduct or action.

Moreover, discretion is something that is usually allowed to any person where rules are inadequate for arriving at a decision and necessity is usually associated with discretion, but there is an implied assumption that discretion amounts to best judgment in a particular situation. This assumption is so strong that discretion is always synonymous with good or sound judgments. After careful examination of the meaning of the term discretion, Dworkin’s conclusion that the term discretion denotes unrestricted reliance on personal preferences was criticized.

For instance, if we ask any person to use his discretion while performing a task or duty, such person shall use his best judgment for performing a task or duty with certain implied standards. Therefore, in ordinary usage, discretion is required when people share some common standards that apply to any person while exercising their discretion in a particular situation. In other circumstances, where the particular situation involves situations in which previously established rules are inadequate to resolve that situation or to achieve a proper result, the person shall use their best judgment in order to creatively find a way to achieve the right or correct decision in that particular situation.

The meaning of discretion in traditional legal usage

The meaning of the word discretion in ordinary language has gone far beyond Dworkin’s usage of the term. Dworkin has provided the meaning of discretion in the legal context which is more narrowly pointed at the judicial discretion required in the process of deciding cases between the parties in the court. In order to determine if the analysis of Dworkin’s views on discretion is valid, it is necessary to examine the meaning of discretion in legal language.

The analysis of the legal and jurisprudential usage of the term discretion as provided under the legal dictionaries, judicial opinions, and the actual texts of the jurisprudents stated that judicial discretion is an area of judgment that is bounded by the rules and principles of the law and such discretion is not arbitrary or unrestrained. Judicial discretion requires the judges to use equity and justice in arriving at a final decision in a particular circumstance and should never rely on their own will or preferences. Therefore, judicial discretion should be applied through interpretation of the law within the prescribed standards rather than giving effect to the will of the judge in a particular case.

Another meaning of discretion was found in the law dictionary which states that discretion is generally not arbitrary and in the same way, the discretion of a public official, a trustee, or other official person is not arbitrary. Further, there are specifically recognized classes of situations in which public official’s discretion is made absolute by law and these classes of situations shall act as an exception to the definition of term discretion, as in legal usage of term, the judges are not allowed to use their personal standards for making a final decision; rather, they are expected to justify their decision by appeals to legal or public standards.

Dworkin’s views on discretion were supported by hundreds of instances in American judicial commentary on discretion found in the reported cases, such as in the case of Reedy v. Reedy, (1953), where the Supreme Court of Kansas observed that discretion refers to the freedom to act according to one’s own judgment and in the case of State Rico v. Biggs, (1953), where the Supreme Court of Oregon observed that the power of courts to examine questions in which no well-established law is applicable but the nature of circumstances surrounding the case is controlled by the personal judgment of judges in the court. In the case of Caras v. Delaware Liquor Commission, (1952), the Delaware Superior Court observed that discretion when applied by public officers means the power to act in a manner that appears to be just and proper under the circumstances of a case while exercising their official capacity.

However, it became clear that Dworkin’s notion of discretion does not accurately describe the term as it has been in American law because, in many of the cases, discretion is limited to the idea of a general standard and shall be ruled by principles of law. In the case of Monahan v. Jacobs, (1946), the City Court of Albany observed that discretion in a legal sense means the responsibility of the judges to exercise their official conscience on all the facts of a particular circumstance in the light of the purpose for which the power exists. Further, in the case of Davis v. Shigley, (1950), the Court of Appeals of Ohio observed the meaning of judicial discretion which states that it does not mean arbitrary will or individual personal view of the judge and judicial power is never exercised for the purpose of giving effect to the will of the judge rather than it is exercised for giving effect to the will of the law.

From the above definition cited from various case laws, it was clear that American judges have used the term “judicial discretion” in a way that is very different from the way recommended by Dworkin. The American judges’ usage of the term discretion clearly contradicts Dworkin’s views on judicial discretion and is more in line with weak senses of discretion as identified and rejected by Dworkin. Therefore, this analysis leads to the conclusion that Dworkin’s notion of judicial discretion is not in line either with the legal usage of the term or even fully with the ordinary usage.

Dworkin and interpretation

Dworkin developed the concept of constructive interpretation, which is a procedure of legal interpretation that intends to find normative unity in the contrasting rules that determine a legal system. Constructive interpretation is all about discovering the interpretation of a rule that unites with the present legal procedure and is considered to be most justified according to the ideals of fairness, justice, and integrity. It is a long-perceived notion that judges fill the gaps left by legal rules by using their discretion in interpreting the legally valid rules. According to Hart, the rule-making authority must exercise discretion. Dworkin strongly contended that judicial discretion does not exist as there is no law beyond the legally valid rules, and judges are always constrained by those legal rules. Dworkin believes in the supremacy of law, where judges are obliged to follow limiting standards even in deciding a hard case.

Further, Dworkin contended that judges cannot act as legislators for the following two reasons:

Doctrine of separation of power

Hart said that judges create the law, which is in contradiction to the doctrine of separation of power. It states that the government has divided its functions and power into three separate and independent bodies to limit the possibility of arbitrary excess by the government in making, executing, and administering laws. It will also offend the democratic ideal that a community is governed by elected officials accountable to the electorate. Therefore, the judge not being elected has no power to substitute his own will against the legislature for creating law.

The rule of law and retrospective laws

If the judge creates a new law, such law shall be applied retrospectively, which will further create litigation between parties if the new laws include rules that reverse the previous legally valid judgment between the concerned parties. Moreover, the creation of a new law may punish the losing party twice, not because such a party has previously violated some duty but because a new duty has been created and will be included after such a violation by the losing party. For instance, William was accused of raping Mary, and the Federal Court found him not guilty of rape because the evidence presented in court clearly stated that the conduct of the victim does not amount to a non-consensual sexual act. After a few years, a judge included one more condition for determining non-consensual sexual conduct, which further makes William guilty of the offense of rape of Mary. If judges create law, the retrospectivity of the new law applied will create disputes between the parties concerned even when the case has already been previously decided.

The three interpretative stages of a case

If we apply constructive interpretation of the rules and principles in any legal domain, such rules and principles can be divided into three categories of interpretation, which are as follows:

The pre-interpretative stage of judicial decision-making

The pre-interpretative stage takes place when a case is presented to the judge, during which the judge will search for the rules relating to the issues between the parties concerned and incorporate such rules into a preliminary scheme. Therefore, the rules and standards that form part of the legal domain that need to be interpreted have to be listed out by the judge. For instance, an accused is charged with multiple offenses at the same time. In the pre-interpretative stage, the accused shall appear before the court, and the judge will conduct a preliminary inquiry in order to ascertain whether the victim has sufficient evidence to believe that the accused has committed the offenses claimed by the plaintiff.

The interpretative stage of judicial decision-making

This is the main stage where the real interpretation of rules and principles is applied by the judge, considering the issues between the parties concerned. The judge has to provide grounds for a general justification for the main elements of the legal rules that have been identified in a particular case. Therefore, this stage involves a search into the background of legal rules relating to the issues created between the parties to provide more insight into the justification of these offenses or claims and their place in a coherent system of rules relating to the offense. For instance, Michael is accused of the offense of sexual assault. The judge examined and interpreted the laws relating to the sexual assault and found that Michael has shown conduct due to which valid grounds have been established against him after considering the characterization of the rules relating to the sexual assault in the domain of criminal law. Therefore, during the interpretative stage, the judges extensively interpret the hard cases by identifying the primary ties between the rules and the issue at hand.

The post-interpretative stage of judicial decision-making

This is the last interpretative stage which consists of two questions. Firstly, it is crucial to consider how each rule is interpreted in an ultimate way to serve its justification, which is already partly answered in the interpretative stage. Secondly, the question needs to be answered by the judge as to how the rule has to be interpreted in order to fit in with a coherent system of rules regarding the offense. Therefore, the post-interpretative stage of judicial decision-making offers scope for critical reflection as to how the rule really has to be interpreted in order to provide valid grounds for justification found in the previous stages of interpretation. For instance, John is accused of the offense of sexual assault. The judge examined the evidence against the accused and found that John was previously also accused of sexual assault, due to which he is liable for enhanced punishment as he is a habitual offender.

The principle of equal concern and respect

Dworkin contended that principles of equal concern and respect are the leading notion that rules always comply with. It is the foundation for all legal rules, and the judges keep this notion in mind while interpreting a certain legally valid rule.

For instance, the principle of proportionality includes two kinds of aspects:

The imprisonment imposed by the judge should be proportionate to the offenses committed by the accused;
The judges have to carefully examine the accused’s criminal behavior in order to represent his offenses fairly.

The value of proportionality is derived from the principle of equal concern and respect, wherein an individual or an entity should be treated with equal concern and respect. Such principles include that equally severe criminal punishments should be imposed on the accused by the judges. Therefore, if the judge imposes a custodial sentence of five years on a first-time offender who has stolen one hundred dollars, it would normally result in a fine considering this sum of money.

Law as integrity, one right answer

Dworkin established the theory named ‘law as integrity’ which essentially describes the interpretation made by judges in a case, particularly a hard case, as follows:

The judges in a case must first reach a set of moral principles that fit the well-settled laws and apply these principles in the best way possible;
The judges must use those moral principles to determine the correct legal rights and duties of the parties concerned in a particular case.

Dworkin believes that his theory of law as integrity best corresponds to legal practice, and he has introduced the best criteria for resolving cases, particularly the hard ones, by applying the right set of moral principles from which all legal rules are obtained. Dworkin argued that every legal requirement fits into a certain set of moral principles, and the purpose of law is the justification of the state’s authority, which means that law is aimed at justifying the way in which the state exercises its authoritative powers. Dworkin defined moral principles as the principles that, in a clear way, justify the well-settled laws in the legal system. Dworkin further defined the well-settled laws as the statutes and precedents of the legal system and other such rules derived from official legal sources. Therefore, Dworkin contended that the judges examining these legal rules must arrive at a set of moral principles that best justify these rules in order to resolve a case.

For instance, a legally valid rule that ‘a man may not benefit from a wrong he has committed’ is a moral principle that is perfectly embedded in the legal statutes. It is the foundation for many well-settled laws and judicial doctrines, and thus, the judges can apply this moral principle in resolving any case, particularly a hard case, as any legal question or issue may be resolved by conforming in some way to this moral principle. Therefore, Dworkin argued that the ‘law must speak with one voice’, which means that a principle is legally valid only if it corresponds to the same set of moral principles to which all other legal principles correspond, and further stated that as long as all legal principles are interconnected in this way, the law shall speak with one voice.

Dworkin also argued that all legal questions are evaluative questions of political morality, and so his theory depends on the idea that there are one-right answers to most legal questions in a case. According to Dworkin, the correct answer to a legal question is mostly embedded in the moral principle, as we cannot deny that there is no moral truth merely because there is nothing external that determines that truth. Dworkin further contended that abandoning such moral truth altogether would mean that morality is nothing more than making things arbitrarily. Dworkin states in his unity of value thesis that lawyers and other political moralists have a duty to construct final justification based on a moral requirement of non-demonstrable truth that assumes that relevant legal questions are resolved in a case without logical contradiction.

Theory of Integrity

Dworkin’s theory greatly emphasizes the inherent value of integrity and states that integrity is of great importance in interpreting legal rules and principles. According to Dworkin, integrity holds intrinsic political value, and he believes that integrity is instrumental in respecting the specific principles that lay the foundation for the legal system. For instance, James has been assigned the task of drafting policies for a particular company. James shall draft the policies considering that they are consistent with the platform of the company, which comprises a set of rules. In order to perform his job in the best way, John shall ensure that his draft includes all aspects of the principles provided by the company’s platform. Therefore, in this situation, integrity holds an instrumental value, and John must comply with integrity in order to fulfill the drafting of documents supported by the company’s platform. Dworkin initially divided this concept of integrity into two categories, which are as follows:

Integrity in legislation

Dworkin contended that integrity is an important part of our political system, and integrity in legislation requires the legislature to make the law coherent, bearing in mind a set of overarching values. Dworkin emphasized the political value of legislative integrity and claimed that our existing legislative practices and social attitudes surrounding such practices can be explained completely only if we credit integrity with inherent value. Further, Dworkin incorporated the concept of integrity into a broader interpretive theory of political community and claimed that the notion of integrity is consistent with the concept of a community of principle that is capable of providing a genuine associative community for sustaining a claim to moral legitimacy instead of a rulebook community that is driven solely by power. Therefore, by incorporating the concept of integrity, a political community is developed which emphasizes more moral principles than being solely governed by the rules.

Integrity in adjudication

Dworkin argued that the value of integrity also extends to the domain of adjudication and claims that judicial practice requires treating the law as expressing and respecting a set of coherent principles to arrive at the best explanation by recognizing the significance of integrity. According to Dworkin, the process of judicial interpretation is based on the notion of intention, which means the judges must consider the basic principles while interpreting the legal rules that provide a coherent background for specific legal rules. Further, Dworkin’s approach to adjudication is integrated into a comprehensive understanding of legal institutions, reflecting a particular notion of the legal community. Therefore, Dworkin’s conception of integrity in adjudication goes beyond the mere interpretation of legal rules and principles and states that principles and values should be upheld by the legal authority as well as embedded within the structure of the legal system.

One right answer thesis

Dworkin’s theory of integrity claims that there is a single correct answer to every legal question interpreted by the judges in deciding a case, particularly a hard case. This is also known as the one-right answer thesis, which according to Stephen Guest, has been attributed to Dworkin and not his own creation. Dworkin also argued that in the current and complex legal system, it is very rare that a case cannot arrive at one right answer to a legal question through the interpretation of legal principles. Further, Dworkin contended that, particularly in hard cases, there exist right answers that can be interpreted by the judge through the use of reasonable logic and imagination. In addition, it is not necessary that one right answer in a hard case be proved right to the satisfaction of everyone.

If we examine Dworkin’s contention on rights answers in the light of the theory of integrity, where the value of law is integrated with the ethical basis of law, there can be a best answer to most of the legal questions, if not all. According to the classical natural law developed by Finnis, there are often various responses to a moral dilemma that show respect for pre-moral values. If we assume that law as integrity derives its institutional context partly from prior moral values-based judgments, a similar analysis shall also be expected to apply in the legal domain. Further, Finnis argued that just like there can be many different ways to go wrong in the legal domain, there can be multiple ways of getting it right. He states that moral engagement within any given community occurs within specific parameters that are essential for the realization of pre-moral values, which serve as the foundation for ethical conduct. The law and statutes, in the form of precedents, play an important role in maintaining these institutional boundaries, and through the enforcement of the legal framework, multiple institutional arrangements are consistent with respect for the basic values.

Another reason the judges must make a judgment considering moral principles is because legal deliberation involves the imposition of generalized rules upon the engagement of individuals with the social environment. It means that the judges should only interfere with individual choices in order to avoid an ethical wrong. Therefore, according to Dworkin, law should be regarded as a form of social disclosure that engages with ethical context in everyday experience, and in legal judgments, the ethical foundations of legal deliberation should be taken seriously by the judges. Further, Dworkin states that the importance of legal decisions based on ethical grounding signifies the true value of integrity.

Integrity and legitimacy

Dworkin’s theory of law as integrity emphasizes the distinct and inherent value of integrity in the legal system, which means that integrity is a fundamental principle for resolving any legal question in a case. According to Dworkin, integrity is not instrumental to diverse moral priorities in answering individual legal questions but rather acts as a particular set of principles on which the entire system of law is based. Dworkin argued that integrity may sometimes override moral considerations when the judges examine the decisions in previous cases and find out that they support an outcome that they find morally objectionable for determining the current case. Dworkin further argued that sometimes moral considerations also override integrity when the condition of integrity may not always be absolutely predominant over what judges require for arriving at a final decision in a case, and other more powerful aspects of political morality might outweigh this requirement in particular and unusual circumstances. Dworkin perceives the apparent possibility of moral reasons for action overriding integrity and vice-versa as the disjunction between the ‘grounds’ and the ‘force’ of law. He stated that the grounds of law are the circumstances in which particular propositions about law should be taken as true, while the force of law relates to the power of any principle about law to justify the use of collective power against individual citizens or groups.

Relationship between value of integrity and political legitimacy

Dworkin contended that integrity is a political ideal that stands apart from justice, fairness, equality, and other such principles which hold true only in the framework of a non-ideal theory. Dworkin asserted that in a utopian state where there is an assurance of moral coherence by fully complying with everything that is just and fair, the concept of integrity would not be required as a separate political virtue. Therefore, the value of integrity is of no use in the ideal theory of justice and integrity is a political virtue in the real world, where complete compliance with justice remains ambiguous and the people of the nation hold divergent views regarding justice. So, integrity plays a significant role in directly addressing the issue of pluralism and political fragmentation and is considered important for mapping Dworkin’s perspective within the broader context of liberal theories of justice.

One of these approaches, called perfectionist liberalism, states that pluralism should be recognized as morally valuable which helps create richer and more valuable personal lives that might be difficult to manage in the real world. The other approach, political liberalism, is based on a different point of view which states that justice should not be associated with conceptions of good but rather should focus on managing our communal lives in a just and fair manner without endorsing any controversial moral conceptions. Both of the approaches face difficulty in application. Perfectionist liberalism faces difficulty regarding the possibility of uniting perfectionism with value pluralism, whereas political liberalism faces difficulty as to whether justice can have solid foundations without applying morality.

Dworkin’s ideas regarding integrity regard him as an advocate for the third option, especially within the realm of non-ideal theory. Dworkin’s view on integrity urges us to create and interpret our political institutions in a unified manner, as if they promote and protect those rights and policies that stem from a coherent set of principles that can be endorsed by a single moral agent. Therefore, integrity is the coherence of the fundamental moral principles that justify the importance of moral, political, and legal past decisions in a given domain and political decisions abide by the value of integrity when such decisions flow from the best overall justification within the relevant practical domain. A decision shall be considered to be violating integrity if it does not include a morally coherent view that is derived from the interpretation of prior decisions. Dworkin’s view on integrity is much more foundational and closely tied to political legitimacy which states that integrity binds together the ideals of a political community wherein people possess genuine associative obligations and the legitimacy of political authority.

Checkerboard rule

The main contention of Dworkin for recognizing the distinct value of integrity is through addressing the objection to checkerboard rules and identifying that the main problem with these laws is that they violate integrity. For instance, American society is divided regarding the permissibility of abortions where half of the population believes that women have the right to make decisions regarding their bodies and the right to decide whether they want to carry on with a pregnancy or whether to terminate it, whereas the other half believes that abortion is murder and women have no right to abortion. If a law is passed stating that women born on even days have the right to abortion, whereas women born on uneven days are denied this right to abortion, such a law would amount to a checkerboard law. Dworkin states that any checkerboard law supports the idea that integrity is valuable, as no moral agent possibly thinks of such a law as a solution for resolving a moral conflict.

There are many other examples wherein the checkerboard laws are not only accepted but also identified as morally crucial in order to find a solution to difficult choices. For instance, in a scenario where an individual has to choose between protecting a few people from a life-threatening event or protecting none of them, it is reasonable for that individual to conclude that protecting a few people is better than protecting none of them, even if those few people are chosen randomly. Such examples of law help to identify that many laws and policies are based on choices that are morally arbitrary. Further, these choices are not morally arbitrary in a broader sense because such laws are based on practicality and the need for effective policies.

In other words, there is no moral inconsistency in making compromises with one’s deeply held moral values for achieving a greater moral good in deciding difficult situations. Moreover, when a person is faced with difficult choices wherein all feasible options are morally impermissible, including the choice that will lead to lesser harm, integrity will not be of any assistance while making such decisions and violation of integrity is not always the issue that makes the checkerboard law wrong. Therefore, Dworkin’s attempt to prove the distinct value of integrity through the contention that the checkerboard rule is wrong because it violates integrity is not always the case and there might be other numerous possibilities surrounding a particular situation that make the checkerboard law incorrect.

Fraternity

Dworkin’s other argument to prove the legitimacy of the value of integrity is much more complex and based on the idea that commitment to integrity is not only important for the formation of a true community but also required for the establishment of associative obligations within that community. In the case of a political community, these associative obligations are not only constitutive of political legitimacy but also serve as an important condition for such legitimacy. Therefore, Dworkin’s other argument relating to the value of integrity has been detailed as follows:

A society where integrity is accepted as a political virtue thereby becomes a true community;
The members of a true community are subject to associative obligations towards each other under some additional conditions;
The most essential associative obligation in a true political community is the obligation to obey the law;
The authority of the state is considered legitimate if the citizens of such a state have a general obligation to obey its necessary decisions;
Integrity plays an important role in legitimizing the use of necessary force in political communities.

The additional conditions for the members of a true community are as follows:

The members of the true community consider the associative obligation as special, which holds distinctive value within that group;
The members of the true community accept that, in these responsibilities, they are personally bound to other members of the community;
The members of the true community regard their responsibility as essential for the well-being of others in the community;
The concern of other members in a true community is of equal concern, and nobody is treated as less worthy than others.

Therefore, according to Dworkin, the value of integrity is not merely a matter of moral obligation to obey the laws but rather a much deeper commitment to the integrity of the whole system itself. Such commitment is rooted in the moral obligation of the idea of fraternity to unite all the people in the community to recognize the specific rights and duties that arise from the principles we are all committed to.

Right answers and wrong answers

Dworkin contended that almost all legal questions are evaluative arguments of political morality and further states that there is one right answer to almost all the legal questions in a case. The one-right answer thesis is crucial for understanding Dworkin’s entire legal theory because this theory relies on the value of moral principles. Dworkin states that law is a branch of political morality that is an extension of general morality, and according to him, legal questions are special kinds of moral questions that are concerned with morally justifying the use of a state’s authority against its citizens. Other legal philosophers contended that there cannot be right answers in matters of judgment merely because these are matters involving moral value, and such judgment must be seen as purely subjective matters of taste, attitude, emotion, or subjective feelings. Dworkin criticizes the views of such legal philosophers and states that morality cannot be just a matter of taste, mattering only to the person who tastes it, and how a judgment can be a valuable judgment if we can just make it up. Therefore, Dworkin contended that a particular question shall have a right answer if such underlying moral principles present strong evidence for proving the answer to that question, and a particular question shall have a wrong answer if such underlying moral principles present strong evidence for proving the answer to some other legal question.

The gap between legal questions and legal answers

Generally, the cases brought before the court unambiguously fall under a body of law which makes it easy to find the solution to that case by applying the meaning and effect of that settled law but there are other circumstances where the cases brought before the court do not fall under any body of law. In these types of cases, where no existing law clearly answers the legal question between the parties, the judges are believed to create or legislate a law. Therefore, in circumstances where the existing law does not provide a clear answer to the legal question, the judges legislate to decide the hard case.

According to the commonly practiced theory of law, we are only subject to the laws that are either made by ourselves or by our elected representatives. However, if it is believed that judges create or legislate laws in which we as citizens or our elected representatives don’t have any hand in shaping and we are further subject to those laws that are against the theory of democracy. Secondly, it is against our common theory of justice and fairness that if any rule is created by the judge and it is applied retrospectively to a situation, the rights and liabilities created after the decision made in that case shall be highly unfair to the parties involved. Such application of law retrospectively shall lead to further litigation between the parties.

In the right answer thesis, Dworkin developed the theory of truth in law in which he contended that judges never create or legislate law and that every legal question that arises while dealing with any case has its own distinct and unique answer. Even in hard or complex cases, the judges have a duty to discover the rights and liabilities of the parties concerned rather than inventing any legal answer. Dworkin emphasizes that while interpreting any legal question, there seems to be a huge gap between a legal question and its legal answer. This huge gap is to be filled by the judge by using their discretion in interpreting that legal question. For interpreting such legal questions, there are ample resources available to judges for arriving at a decision. Dworkin further contended that these resources are extensive and should be properly acknowledged by the judge to bridge the gap between any legal question and legal answer.

Therefore, according to Dworkin’s theory of truth in law, every legal question has its own uniquely right answer and the area of judicial discretion is defined by the gap or difference between the number of legal questions and legal answers. Dworkin’s theory of truth in law further states that almost every legal question has an answer that is found to be true and when the nature and scope of resources available to the judges while interpreting any legal question are properly appreciated, the gap between all the legal questions and answers disappears.

Analysis of Dworkin’s proposition that there are right answers in law

Dworkin developed the theory of truth in law in his right answer thesis which was important to provide the necessary conditions for determining the truth of a particular legal question. According to Dworkin, a particular legal question shall have a right answer if that particular question has been answered through a best justification through settled law that has already been proven to be right and presents strong evidence for proving the answer to that particular question. Further, the particular legal question shall have the wrong answer if the justification provided for answering that question is strong evidence for some other legal question that is not an issue between the parties and does not provide a right answer for the legal question in issue between the parties.

For instance, it is a well-established law that a valid will requires the signature of two witnesses. If any legal question between the parties arises regarding the number of witnesses required for making a valid will, it can be easily answered through this well-settled law. In finding the right answer to a legal question where there is no settled law, the answer to such a question is proved by the theory of law that can be justified through settled law. If this well-settled law of valid will is not true and a legal question arises as to how many witnesses are required for a valid will, it will remain unanswered even after interpreting other settled laws.

Therefore, it can be concluded that there is no legal question that shall possess a definitive answer through interpreting a settled law.

For instance, “a man shall not profit by his own wrongdoing.” It is a proposition which is described by Dworkin as a fundamental principle of law. Further, this proposition can be naturally expected to be found in any theory of law but there is no definitive answer as to whether such a proposition is right or wrong and the truth of this proposition remains undefined. Therefore, it can be concluded that no legal question that seeks an answer in the form of a principle of law shall possess a right answer which further shall be indisputable and unambiguous. Further, this theory of truth in law fails to prove the truthfulness of legal principles in finding the right answer to a legal question.

Conclusion

Ronald Dworkin developed the theory of interpretivism in which he states that the judges are not the creators of law but rather interpret the legal rules and principles. Such interpretation is particularly emphasized in the situation where there is a hard case and no prior legally valid rule completely provides the best outcome for the issues that arise between the parties concerned. Thus, the work of Dworkin has been consistently concerned with the role of judges in the judicial interpretation of legal rules and principles. Dworkin always gives emphasis to political values and moral principles, especially while interpreting legally valid rules to arrive at a decision in a hard case. His theory of law emphasized the right-answer approach over utilitarian calculations and further stated that law lies in the best interpretation of the moral principles of existing social practices. Therefore, according to Dworkin, all judgments ultimately rest upon the moral principles that all people are equal as human beings, irrespective of the circumstances, and these moral principles form the basis for the rules laid down in the Constitution.

Further, Dworkin also stated that the role of judges is the most important element in deciding any case between the concerned parties. The cases can be hard or easy, which are two very different scenarios in deciding the judgment of a case. The role of judges is more crucial when deciding a hard case because no prior legally valid principle exists to provide the best justification for the case, and ultimately, the judge has to decide the disputed matter of the parties. Firstly, to decide any case or unsettled dispute, the judges should interpret the relevant sections or provisions that lay the foundation of the principles on which they were made, and here, the intuitive judgment of the judges with regard to any matter is the starting point upon which the decision of the case is dependent.

Dworkin also argued that judges should interpret beyond the legally valid rules or settled law, especially while deciding a hard case, but at the same time, they must not go too far, as it would lead to ambiguity and complexity. The judges must start with a narrow interpretation of the case at hand and should only go for a wider interpretation if there is a question relating to the more significant nature of legal rules. In addition, Dworkin added that the ultimate power of interpretation lies with the judge, and they must have the freedom to interpret the case in any way, particularly considering the value of integrity and underlying moral principles.

Frequently Asked Questions (FAQs)

What is the meaning of interpretivism?

Interpretivism refers to the nature of law that provides a philosophical explanation as to how the legally important practices of political institutions modify legal rights and obligations. This theory was developed by Dworkin, a legal philosopher who stated that the purpose of interpretivism is to identify the principles in question and emphasize the impact of such practice on people’s rights and responsibilities. Therefore, interpretivism refers to a thesis that provides the groundwork of any law through the judicial interpretation of legally valid rules by the judges and recognizing the underlying moral principles for such justification of the law.

Why was Dworkin a critic of legal positivism?

Dworkin was a critic of legal positivism, and he chose to target Hart’s theory of legal positivism because he found that it was the most sophisticated view of legal positivism and identified the fundamental grounds for criticizing the positive law. Dworkin criticizes legal positivism by distinguishing Austin’s and Hart’s conceptions of legal positivism, which include how Austin distinguishes the rules in terms of primary and secondary, whereas Hart includes a broader perspective of rules and rejects the basis of command provided by Austin. Further, the criteria developed by Hart for the application and validity of legal rules, known as the rule of recognition, were more credible than the criteria developed by Austin as mere commands given by the sovereign.

What is Dworkin’s approach in deciding hard cases?

Dworkin’s approach to the hard case was slightly different from legal positivism. Dworkin does not provide any nature or characteristics of the hard cases nor provide any instructions as to how the judge will determine that a particular case is a hard one. He only provides some guidelines that when no established legal rule can be applied to a case and reasonable lawyers disagree on rights, such a case shall be regarded as a hard case. Therefore, Dworkin defined the hard case as follows:

A particular case cannot be resolved by well-established or settled legal principles;
The judge has the discretion to decide such cases either way.

Dworkin believes that in hard cases, there is a right decision that can be achieved by the judge through the correct interpretation of principles embedding the natural and moral rights of society.