13 Ronald Dworkin: An Encounter with Legal Determinacy

Introduction

Law is indeterminate to the extent that legal questions lack single right answers. In adjudication, law is indeterminate to the extent that authoritative legal materials and methods permit multiple outcomes to lawsuits. If arguments for radical indeterminacy are valid, they may raise serious doubts about the possibility of legitimate, non-arbitrary legal systems and adjudicative procedures.1In nut shell, over the years, to many commentators, legal realism and critical legal school became a caricature remembered solely for the claim that the outcome of cases was only a matter of “what the judge had for breakfast.”2

Understanding of Legal Determinacy

The issue of the determinacy or indeterminacy of legal texts and materials-such as statutes, judicial decisions, legal principles and rules, and the theoretical justifications for an area of the law-remains one of the most contentious issues in jurisprudence. Pitched against each other in the controversy are H. L A. Hart,3 Dworkin,4Benditt,5 American Realist Jurisprudence 6 and recent exponents of Critical Legal Studies.7 Legal materials are indeterminate8 when the legal

1KenKressLegalIndeterminancy,77.2CAL.REV (1989),avilable athttp://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article.

2RONALD DWORKIN, LAW’S EMPIRE, HARVARD UNIVERSITY PRESS 36 (1986).

3H. L.A. HART, THE CONCEPT OF LAW, OXFORD UNIVERSITY PRESS (1961).

4RONALD DWORKIN, TAKING RIGHTS SERIOUSLY, CAMBRIDGE MASS: HARVARD UNIVERSITY PRESS (1977).

5THEODORE BENDITT, LAW AS RULE AND PRINCIPLE: PROBLEMS OF LEGAL PHILOSOPHY, STANFORD UNIVERSITY PRESS (1978).

6Andrew Altman, Legal Realism,Critical Legal Studies and Dworkin, 15.3 PHILOSOPHY & PUBLIC AFFAIRS 205-235 (1986), available at: http://www.jstor.org/stable/2265210; See also  J. M. Finnis, On the Critical Legal Studies Movement, 30 THE AMER. JOUR. OF JURIS. 21-42 (1985).

7N. Otakpor, On Determinacy in Law, 23.1  JOUR. OF AFR. LAW 112-121 (Spring 1988).

8Law is indeterminate means to say that the class of legal reasons is indeterminate.  This class of reasons  consists of four components:

1. Legitimate sources of law (e.g., statutes, constitutions, court decisions, social policy, morality);

2. Legitimate interpretive operations that can be performed on the sources in order to generate rules of law (e.g.,proper methods of interpreting statutes or prior cases or of reasoning about moral concepts as these figure in the sources);

3. Legitimate interpretive operations that can be performed on the facts of record in order to generate facts of legal significance (e.g., proper ways of grouping and categorizing fact situations for purposes of legal analysis); and

4.Legitimate rational operations that can be performed on facts and rules of law to finally yield particular decisions (e.g., deductive reasoning).).

materials do not place any limit on the possible result in a case.9 This means that a judge presiding over a case could reach any result because the law does not constrain the judge’s judgment. Legal materials are under-determinate, by contrast, when “the outcome [of a legal case] must be chosen on grounds other than the law itself…….from a range of possible results that are consistent with and limited by the law.10 In practice this means that the outcomes of a case-and the judge’s discretion are limited by law. Finally, the law is determinate when the judges have no discretion and the result in a case is limited to one outcome by the law.11

There are divergent views on this issue of indeterminacy. The Realists believed that the law was ‘indeterminate’ which they mean two things: first, that the law was rationally indeterminate, in the sense that the available class of legal reasons did not justify a unique decision and second, that the law was also casually or explanatorily indeterminate, in the sense that legal reasons did not suffice to explain why judges decided as they did.

One of the familiar theses12 defended by Hart in his The Concept of Law is that there are some cases in which the rules of a legal system do not clearly specify the correct legal outcome. Hart claims that such cases arise because of the in- eliminable open-texture13 of natural language. All general terms have a penumbral range in which it is unclear and irresolvable controversy as to whether the term applies to some particular. Yet, this penumbral range of extensional indeterminacy is necessarily much smaller, than the core extension in which the term’s application is clear and uncontroversial.14 In Concept of Law, H.L.A. Hart suggests that the legal rules judges employ to decide cases typically possess a certain indeterminacy or vagueness in certain areas:

All rules involve recognizing or classifying particular cases as instances of general terms, and in the case of everything which we are prepared to call a rule it is possible to distinguish clear central cases, where it certainly applies and others where there are reasons for both asserting and denying that it applies. Nothing can eliminate this duality of a core of certainty and a penumbra of doubt

9Lawrence B. Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma, 54 UNIV. OF CHIC. L. REV. 473

(1987).

10Id.

11Lee J. Strang, The Role of the Common Good in Legal and Constitutional Interpretation, 3.1 UNIV. OF ST. THOM. L. JOUR. 50 (Summer 2005).

12 H.L.A. Hart contended that the realists had greatly exaggerated the amount of indeterminacy in the law.

13Hart actually derived this concept from the work of FredrichWaismann, which was in turn possibly based on a constructive view of language put forward by Ludwig Wittgenstein. However, the use of the term by the two philosophers is different. In Waismann’s work, “open texture” referred to the potential vagueness of words under extreme circumstances while Hart put forward the concept of “open texture” as an argument for why rules should be applied in a way which require judicial discretion.

14By “open-texture”, Hart means that in some situations, judges need to exercise their discretion when a case is not governed by any existing rule of law. This is due to the indeterminacy of the application of rules.

when we are engaged in bringing particular situations under general rules. This imparts to all rules a fringe of vagueness or “open texture”. .. .15

[The Moral rules has no place in the system. Moral Criteria is not a necessary condition for the validity of Law]

15Supran.3.

Hart argues that when a case arises within the “open texture” of a legal rule, a judge exercises ‘discretion’16 to make a ‘choice between open alternatives,”17 and thus engages in a “creative or legislative activity.”18 The realist analysis of indeterminacy sees it as both more pervasive and deeper than the determinacy Hart attributes to the legal order.19 Thus, Hart saw legal indeterminacy as “a peripheral phenomenon in a system of rules which, by and large, does provide specific outcomes to cases.”20

Ronald Dworkin’s Analysis of Problem

Another justification is found in the work of Ronald Dworkin, professor of law at New York University and professor of jurisprudence at Oxford, and one of the most influential legal theorists.With the publication of Taking Rights Seriously, Dworkin established himself as something of a celebrity, both inside the field of legal theory and out. In the philosophical journal Ethics, Dworkin’s book was described as “the most significant book on philosophy of law in this decade and surely one of the most interesting of the century. Ronald Dworkin argued that even the amount of indeterminacy that Hart allowed was exaggerated.21 Dworkin strive to show that in most legal cases, even in ‘hard cases’22 where there is ‘deep and intractable disagreement’ over what the law requires, ‘right’ answers can be found by searching in “reason and the imagination” and hence there is no indeterminacy or under-determinacy.23

This may seem to leave the realist open to one of the principal criticisms which Dworkin has made of Hart: law is more than just legal rules. It is also the ethical principles and ideals of which the rules are an (albeit imperfect) expression, and it is these principles and ideals which help to guide judges to a determinate outcome. Indeed, Dworkin might try to use the realist indeterminacy analysis to his advantage: if the law were simply a collection of rules, as Hart thinks, it would be afflicted by exactly the kind of deep and pervasive indeterminacy which the realist posits. Yet, if the law were indeterminate to the degree suggested by realist analysis, it would not be much more than a pious fraud: judges would be ‘legislating’ not only in penumbral

16Supran.3 at 124.

17Supran.3 at 124.

18Supran. 3 at 131.

19Andrew Altman, Legal Realism,Critical Legal Studies and Dworkin, 15.3 PHILOSOPHY & PUBLIC AFFAIRS, 205-235 (Summer, 1986).

20John Hasnas, Back to the Future: From Critical Legal Studies Forward to Legal Realism, or How Not to Miss the Point of the Indeterminacy Argument, 45:84 DUKE L. JOUR. 94 (1995).

21RONALD DWORKIN, TAKING RIGHTS SERIOUSLY, HARVARD UNIVERSITY PRESS 14 (1977) (Kindly refer to Ch. The Model Rules I).

22Cases which decisions deviating from the true principles of law in order to meet the exigencies presented by the extreme hardship of one party. It is sometimes said that “hard cases make bad law” because logic is often shortcut in a hard case, and later attempts to justify the new law thus created often compound the original

inadequacy of reasoning.

23Supra n.21 at 81.

cases, but in all cases. Judges would always be creating law, in flagrant violation of their institutional duty to apply preexisting law. The Dworkinian may conclude that we face this choice: either include principles and ideals as part of the law in order to contain (and, perhaps, eliminate) the indeterminacy it would have were it simply a collection of rules or admit that common-law adjudication is a fraud.

Dworkin says that theories of adjudication have become more sophisticated, but the most popular theories still put judging in the shade of legislation. Judges should apply law that other institutions have made; they should not make new law.24 That is the ideal, but for different reasons it cannot be realized fully in practice. Statutes and common law rules are often vague and must be interpreted before they can be applied to novel cases. Some cases, moreover, raise issues so novel that they cannot be decided even by stretching or reinterpreting existing rules. So, judges sometimes make new law, either covertly or explicitly.25

He contends, first, that judges are never free to exercise “strong discretion” in deciding issues of law, even in cases in which no legal rule dictates a clear result.26 When a judge runs out of “textbook rules” Dworkin asserts, he must base his decision not on non-legal standards or norms, but rather on what may be called legal principles.27 Legal principles, in Dworkin’s opinion, are as much a part of the law as are the black-letter rules, and are equally binding on judges. In those cases in which the rules did not clearly decide the case, it was the principles that would “guide judges to a determinate outcome.” Moreover, while no single principle is dispositive of a given cause, a fair consideration of all relevant principles points to a uniquely correct answer in even the hardest of cases.

Secondly, in reply to Hart’s thesis that fully developed legal systems have a social “rule of recognition” that identifies authoritatively all the rules of the system and that thus can be used by judges to isolate the standards they must consider in deciding hard cases.28

24Ronald Dworkin, Hard Cases, 88.6 HARV.L. REV. 1058 (April 1975). 25Id.

26See Dworkin, Rights Thesis, 74.6 MICH. L. REV. 1168 (May, 1976). (Dworkin has not denied that judges are

sometimes granted discretion as, for example, in fixing criminal sentences.).

27Id.

28Supran.3 at 92.

Dworkin denies that there can be any social criterion or set of social criteria that can effectively identify all of the standards of judge must consider.29 Any such rule of recognition cannot be a social rule, as Hart supposes, but must itself be a normative rule inextricably bound to moral and political theory. In hard cases he30 attempts to explore more fully the notion of the “soundest theory of law” and to demonstrate with greater precision the role played by moral and political theory in its construction and application.31The discovery process of a Dworkinian Judge (Hercules) exemplifies the idea that principles governing hard cases are internal to the law.’ He necessarily incorporates the realm of political morality, an area in which judges often differ.”His argument may be depicted with the following graphic:

Figure 2: THE MORAL IMPACT THEORY CONTRASTED WITH DWORKIN’S THEORY OF LAW

[The thick arrow represents moral justification while thin arrow represents moral consequence]

29Ronald M. Dworkin, Model of Rules, 35.1 THE UNIV. OF CHIC. L. REV.14-46 (Autumn,1967).

30While illustrating the process used in deciding a hard case Dworkin idealize’s Hercules as his omnipotent judge who makes political and moral judgments during adjudication process.

31Supra n.26 at 1170.

Dworkin aims to prove that the Anglo-American system of law is indeed gapless (“a seamless web”)32 and hence is a system of entitlements in which there is never room for judges to play the role of “deputy legislators”.33 His principal contention in hard cases, entitled “the rights thesis” is that: Judicial decisions in civil cases, even in hard cases ….characteristically are and should be generated by principle not policy.34 The rights thesis provides that judges decide hard cases “by confirming or denying concrete rights” after considering all relevant principles.35 Since there is only one correct adjudication of rights in every case, one litigant always has the rights to win,36 a right that Dworkin views as a “genuine political right”.37

“Policy” is a standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community(though some goals are negative, in that they stipulate that some present feature is to be protected from adverse change. Principle is a standard that is to be observe, not because it will advance or secure and economic, political, or social institution deemed desirable, but because it is a requirement of justice or fairness or some other dimensions of morality. Thus the standard that automobile accidents are to be decreased is a policy, and the standard that no man may profit by his own wrong a principle.

The policy and principle distinction as given by Dworkin can be explained with the help of following illustrations: (a) Elmer’s Case [Riggs v. Palmer, 22 N.E. 188 (1889)] (b) Henningson v. Bloomfield Motors, Inc. [Supreme Court of New Jersey, 1960, 32 N.J. 358], (c) KeshvanandBharti v. State of Kerala AIR 1973 SC 1461 (d) .

(a) Illustration I: Elmer’s Case [Riggs v. Palmer, 22 N.E. 188 (1889)]

One of the cases to explain Dworkin’s thesis is Elmer’s case where, the deceased, Mr. Palmer made a will to his grandson, the defendant of his estate. After that, Mr. Palmer remarried and because of that, the defendant was afraid that his grandfather may change his will at any time and he will get nothing. Therefore, he decided to murder Mr. Palmer and finally, he was convicted and was sentenced to imprisonment for a couple of years. The question raised by this case is whether the defendant should be legally entitled to will after he came out of the jail. According to the New York State Statue, this will is valid and the defendant was entitled to it. However eventually, the majority of the court decided the case against him as they based their arguments

32Supra n.24 at 1093-96.

33Supra n.24 at 1058.

34Supra n.24 at 1160.

35Supra n. 24 at 1078.

36Supra n.24 at 1082.

37Dworkin, Rights Thesis, 74.6 MICH. L. REV. 1168 at 1066.

on the long-established principle, “No one should be permitted to profit by his own fraud, or to take advantage of his own wrong.” This case illustrates that when deciding cases, judges need to search for the correct answer in all the standards in the society, that is both rules and principles – the latter being part of the community’s moral and political culture and exist independently of legal institutions enacting the rules of law. We can see that the principle, “No one should be permitted to profit from his wrongdoing” is the determining factor in the Elmer’s case and its application resulted in the same legal authority as the application of a legal rule.38

(b)   Illustration II:Henningson v. Bloomfield Motors, Inc. [Supreme Court of New Jersey, 1960, 32 N.J. 358]

Plaintiff Mr. Henningsen purchased a new automobile from defendant Bloomfield Motors, Inc. He also signed a contract which said that the manufacturer’s liability for defects was limited to “making good” defective parts. This warranty was expressly in lieu of all other warranties, obligation or liabilities. Ten days after the purchase, while his wife was driving the car, the steering mechanism of the vehicle failed, causing an accident which damaged the car. Henningsen’s wife sued both Bloomfield and Chrysler; her husband joined in the action seeking recovery of consequential losses. Both claims were based on alleged breach of implied warranty of merchantability imposed by the Uniform Sales Act, 1906. The defense relied on a contractual disclaimer of warranty, which the Sales Act would permit. The disclaimer was printed on the back of the contract in extremely small print. It purported to limit liability for any breach of warranty to replacement of defective parts within 90 days of the sale or before the car had been driven 4,000 miles, whichever period was shorter. The sales contract was printed on one page, front and back, which the most of the front print in 12 point type. After the signature portion, the type became much smaller. The final two paragraphs printed on the front of the contract attested that the agreement was complete, that the signers were over the age of 21, and that the signers had “read the matter printed on the back hereof and agree to it as a part of this order the same as if it were printed above my signature.” Henningsen testified that he did not read the final two paragraphs or any of the printed material on the back of the form.39

The 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 principle40 that automobile manufacturers have a special obligation in connection with the construction, promotion and sale of his cars, because, among other reasons,

38See Dr.AbidHussain, Islamic Laws of Inheritance, ISLAM 101.available at: http://www.islam101.com/sociology/inheritance.htm. (It would be pertinent to know here that under Muslim Personal Law this principle has been accepted as law. Allah’s Messenger (SAWS) said “One who kills a man cannot inherit from him.” (Tirmidhi and IbnMajah). All the scholars agree that intentional or unjustifiable killing according to Sharia is a bar to inheritance because if such people are allowed to kill and then benefit from the estate of the victim, it will encourage incidents of homicide.).

39See JCT, STANDARD FORM OF MEASURED TERMS CONTRACT, SWEET &MAXWELL(2005).

40SeeJ. BEATSON, ANSON’S LAW OF CONTRACT, OXFORD UNIVERSITY PRESS (28th ed. 2010). See also

MICHAEL FURMSTON, CHESHIRE, FITFOOT & FURMSTON’S LAW OF CONTRACT, OXFORD UNIVERSITY PRESS (5th ed. 2007). cars are so essential. Consequently, the courts must examine purchase agreements closely to see if consumer and public interests are treated fairly.41

(c) Illustration III:KeshvanandBharti v. State of Kerala AIR 1973 SC 1461

In the Indian context, Dworkin’s theory may be explained with the help of principle of Basic Structure as propounded by the Supreme Court in KeshvanandBharti v. State of Kerala. The dispute about the nature and extent of Parliament’s power to amend the constitution and specifically the fundamental rights arose immediately with the enactment of first constitutional amendment in 1950. This was due to the fact that provision relating to amendment of the constitution did not mention about the nature of the power and extent thereof? Though the apex court then held that there is no limitation on the power of the Parliament but the question “are there principles that justify substantive limitations upon parliament’s amending authority?”was continuously troubling the constitutional law scholars, lawyers and judges. The matter was finally settled in KeshvanandBharti v. State of Keralawhen a thirteen judge bench of the Supreme Court observed that in a democratic constitution, there is no place for absolute power. It enunciated principle of basic structure by declaring that the Parliament in the capacity of representative of we the people, can exercise the constituent power but in exercise of this power Parliament cannot destroy the basic structure of the constitution.

(d).Illustration IV:Sahara India Real Estate v. Securities & Exch. Board of India(SEBI), C.A. No. 9813 of 2011 and C.A. No. 9833 of 2011

A dispute between the Sahara Group and Capital market regulator SEBI (Securities and Exchange Board of India) arose due to alleged leakage of sensitive confidential communication inter parties and their consequential publication by the media. While on one hand constitution has guaranteed freedom of speech and expression, which includes freedom of press/media, and any prior restraint on the publication, amounts to unreasonable restriction.42 On the other hand constitution also guarantees every person free and fair trial which is a fundamental postulate of our justice delivery system. What is the recourse when freedom of media which has been extended to media trials hampers the right to get a fair and impartial trial?

A constitution bench of the Supreme Court finding no applicable rule to resolve the problem evolved a new principle namely “doctrine of postponement of order”, to make a delicate balance between these two rights. The postponement of reporting order in the opinion of the Supreme Court is a “neutralizing device”evolved by the courts to balance interests of equal weightage,

41Supra n. 29 at 24.

42SeeBrijBhusan v. Delhi, AIR 1950 SC 129. It was held by the Supreme Court that imposition of pre-censorship on a news paper will be violative of Article 19(1)(a). See alsoR. Rajgopal v. State of Tamil Nadu, AIR 1995 SC 264.

viz. freedom of expression vis-à-vis freedom of trial when a credible case could be made that it would serve the cause of justice. The bench observed that:43

When there is no other practical means that is capable of avoiding the real and substantial risk of prejudice to the connected trials, postponement orders safeguards the fairness of such trials.

Dworkin believes that judges should confine themselves to the dispute and not allow matters of general policy to influence their positions. Courts should not act as deputy legislatures making decisions based upon policy issues, and thus, judges should be restrained to decide controversies according to legal precepts, and not policies. The concept that cases should be decided on the basis of principles is at the foundation of Dworkin’s “rights thesis.” Its purpose was to explain the proper area of court decision-making by rationally limiting judicial discretion.

Concluding Remarks

Dworkin’s elucidation may not be accepted by legal parlance but his contributions are nevertheless phenomenal. Jurisprudential schools in general and positivism in particular, are struggling with the problem of subjectivity and seeking theories which can be verified externally. Though, the human factor does play an indubitably important part in decision-making. Legal positivism seems to underplay the essential validity of sociological jurisprudence, and unduly isolates the moral tenets of natural law. Dworkin’s view seems to be closer to reality by including political morality in his decision-making process.

On a careful analysis of the problem he appears to be somewhere inthe middle of legal realism, natural law and positivism. His stress on the extent to which the selection of rules and determination of their applicability to facts is controlled by principles penetratingly shakes-up the “ruling theory” of positivism. His claim that political morality plays a pivotal rolein determining the selection of principles serves to reunify law and morality. These contributions of Prof. Ronald Dworkin are substantial and praiseworthy, but the insistence on the presence of preexisting rights in institutional history yielding one right answer is not descriptive of the legal arena or the world.

43SeeC.A. No. 9813 of 2011 and C.A. No. 9833 of 2011. The Supreme Court also made it explicit that orders of postponement should not perturb the content of the publication and such orders would only be appropriate in cases where the balancing test otherwise favours non-publication for a limited period.

FURTHER READINGS

• L.A. Hart, The Concept of Law, Oxford University Press (1961).
• Ronald Dworkin, Law’s Empire, Harvard University Press 36 (1986).
• Theodore Benditt, Law as Rule and Principle: Problems of Legal Philosophy, Stanford University Press (1978).
• Ronald Dworkin, Taking Rights Seriously, Harvard University Press 14 (1977)
• Andrew Altman,  Legal  Realism,Critical  Legal  Studies  and  Dworkin,  3 PHILOSOPHY & PUBLIC AFFAIRS 205-235 (1986), available at: http://www.jstor.org/stable/2265210.
• M. Finnis, On the Critical Legal Studies Movement, 30 The Amer. Jour. of Juris. 21-42 (1985).
• Ken Kress, Legal Indeterminacy, 77.2 CAL. L. REV., (1989), available athttp://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article
• Lee J. Strang, The Role of the Common Good in Legal and Constitutional Interpretation, 3.1 Univ. of St. Thom. L. Jour. 50 (Summer 2005).
• Otakpor, On Determinacy in Law, 23.1 JOUR. OF AFR. LAW 112-121 (Spring 1988).
• Ronald Dworkin, Hard Cases, 88.6 Harv. L. Rev. 1058 (April 1975).
• Dworkin, Rights Thesis, 74.6 Mich. L. Rev. 1168 (May, 1976)
• Ronald M. Dworkin, Model of Rules, 35.1 The Univ. of Chic. L. Rev.14-46 (Autumn,1967).