Friday, October 12, 2007

How Do Judges Decide Hard Cases?

Ronald Dworkin, opposing the legal positivism of H.L.A. Hart and John Austin, would have approached the Sims’ case much differently. Instead of looking to law as law, Dworkin would have invoked what he calls the integrity of law by having us ask what the principles of law behind the decision is based on. These principles are said to trump the laws assumed by their position as being sources of the laws themselves. The rule that free states must return fugitive slaves to slave states is based on the policy of states’ rights, as we have said. However, in Dworkin’s hierarchy of legal standards, there may be overriding principles, such as the principle that all human beings shall be treated equal, which trump the policy of states’ rights.

It is an integral part of the concept of principle that it has this dimension of overriding weight, which judges are presumed to take into account when using their discretion. Justice Shaw cites principles and policies as justification for the application of rules, to be sure. But if states’ rights is argued to be a principle unto itself, though it may be disputed whether some principles have more weight than others, Dworkin would argue that a Herculean judge, a judge who is omniscient with respect to law and legal decision-making, would use his discretion and conclude that principles of equality would override states’ rights in a hard case like Sims’.

To Austin, who would have decided that that principle of States’ Rights holds for the Fugitive Slave Laws, critics of positivism like Dworkin would have been content to point out that he had not taken account of consideration the measure of these principles and that the plaintiff was entitled to have Shaw do so. Dworkin means more, then, by holding judges and promulgators of the law to the standards of law instead of treating lawmaking as something we are unable to criticize. For Austin, criticism merely amounts to equivocating upon “hate” language and confounding us with divine theories of justice, which we can never measure. For Dworkin, Shaw is “institutionally obligated” to consider principles that other judges, especially exemplar judges like Hercules, would have considered.

Austin, it may be said, holds his judges to the same standards as they themselves promulgate. When he says that the law is “circuitous” upon judges, however, he merely means that it is applicable to the judges as well. Yet this is only to say that their decisions may have consequences for themselves, and that judges as well as the parties in the trial are therefore bound by them. Dworkin means to say that not only are judges bound to their own law, but that if no clear principle or policy is applicable, instead of using tautological discretion out of context with the legal standards, judges must use appropriate discretion when deciding cases.

The unsatisfying aspect of Austin is that nowhere does he discuss legitimacy, while all the time he discusses legal validity. Validity for Austin is legitimacy, but everywhere it lacks the sort of integrity that Dworkin discusses. The only appeal to morality that one can make on Austin’s account is to utilitarianism. Yet later we told that utility is no measure for divine will, and therefore no measure for deciding hard cases. The relevant aspects of Austin’s work would lead us to conclude that judges make their decisions based on positive morality which is only an aggregate of the mere opinions he is trying to dissuade us from. The relevant aspects of Dworkin’s work would allow us to make appeals to principles as codified in a legitimate source of politics, like a system of democracy. This is, in the end, much more attractive, since it gives judges the ability to make decisions rooted in proper interpretations of history, and that if we understand our principles properly, we can be sure that there be a right answer to our hard cases.

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