Dworkin's Constructive Interpretation account of adjudication: A Critical Analysis into its Inability to Capture the Essence of the Judicial Process.

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“Dworkin’s constructive interpretation account of adjudication is fatally flawed in that it fails to do justice to what we know and understand about the judicial process.”

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Inherent in Judicial procedural debate is the interrogative “Are Judges creators or interpreters of the law?” Dworkin tends towards the interpretive end in his critique of Hart’s theory of adjudication. He aims to dislodge his positivist assertations that rules are separate from morality and as such offer discretion to judges to make new law when they consequentially “run out” because of indeterminacy. Instead, in Taking Rights Seriously, his second and seminal critique of Hart, he proposes that law is determined both positively and morally, rejecting what he coins, Harts ‘Archimedean’ approach to adjudication. This essay will assert that Dworkin may appear flawless because his Constructive interpretation somewhat comprehensively parallels how cases have been decided. However, his account is a response to Hart’s theory of adjudication and therefore his misinterpretation and subsequent misconstruction of Hart renders his account of adjudication flawed. This essay will assert this primarily by exploring cases, viewing how they are decided, as what we know and understand about the judicial process.

Riggs v Palmer [1889]

Dworkin criticises Hart for positing a model “of and for a [legal] system of rules [...which] forces us to miss the important roles of …standards that are not rules” (Taking Rights Seriously 1977) namely principles, in the judicial process. Principles for Hart are extra-legal; not part of the law itself, whereas Dworkin contends principles have “dimensions rules do not” and can be applied constructively, but with rules it is one or the other because when they conflict “one of them cannot be a valid one”. Furthermore, Dworkin claims principles have normative standards not excluding morality like Hart. Whereas rules are only necessary for the determination of outcomes as displayed in, for example, the Theft act 1968 s.1, hence they only encapsulate the statutory aspect of the judicial process.

When applied to the case of Riggs, Dworkin appears more plausible than Hart, as despite inheritance law in the case being clearly laid out in statutory provision, the rule was overridden by the principle that no one should profit from wrongdoing. Thus, the man who killed his grandfather to get his inheritance was convicted. This shows how the courts utilised principles as part of their ratio decidndi where rules limited their scope. Principles are not used extra-legally, instead they aid judges to reach conclusions, a sentiment to Dworkin, Hart does not recognise.

However, Dworkin misinterprets Hart’s theory as supported by Tommaso Pavone in ‘A critical Adjudication of the Hart-Dworkin Debate’. He ignores Hart’s proposition of rules as “open-textured” because they have core meaning but a “penumbra of uncertainty.” This uncertainty highlights ambiguity and suggests that stipulations, which are moral in nature, can be made by Judges beyond one accepted rule when judges make new law where it “runs out”. Hart’s iota of moral inclusivity is clarified in his critique of rule scepticism. He says rules are not binding, they can exist with exceptions and because there is an exception does not mean there is no rule. Exception can be read synonymously with principle, because for Hart a principle is extra to the legal system, an exception, thus suggesting his does in fact account for principles rendering Dworkin’s argument as weak. Furthermore, Hart suggests he is a “soft positivis[t] and not as in Dworkin’s version of it ‘plain-fact’ positivism” (The Concept of Law proscript); he is not neglectful of morality as to define his understanding of the judicial process as a system of only rules, thus highlighting misinterpretation on Dworkin’s part of his thesis.

Donoghue v Stevenson [1932]

An extension of how rules can be separated from principles in defining what law is by judges, with principles not being neglected, is embraced by Neil McCormick who writes in support of Hart’s positivism. He explains that despite the ‘neighbour principle’ being obiter dictum it still possessed power and reference. From this case it can be inferred that principles rationalise rules making sense of them as a collective, they are not to be seen as separate of them, but instead as subsequent to them, thus avoiding the notion that law can preparatorily be determined by morality as Dworkin contends. This highlights how Dworkin fails to acknowledge the positivist acceptance of principles as contributory to the law.

Henningsen v Bloomfield Motors [1960]

Dworkin criticises Hart for viewing judges as legislators in that they make new law when the law runs out, as a result of the indeterminacy of rules. To Dworkin, this lends judges too much discretion. Dworkin asserts that judges do not make new law, they are bound to existing principles via the doctrine of stare decisis. Instead, Dworkin posits three senses of discretion and asserts “…what counts”, matters, is a weak sense of discretion which is the exercise of judgement when applying standards, not hard discretion where judges act in the absence of standards. When analysing this through the exploration of Henningsen; Dworkin appears to have a good account of the judicial process. The car manufacturer was liable for medical expenses, not via statutory guidance, but instead via “the basic doctrine that the courts will not permit themselves to be used as instruments of inequity and injustice?” (Henningsen). This was not an exercise of hard discretion as judges applied moral standards, thus rendering it weak suggesting that Dworkin does justice to what we know of the judicial process. However, Scott Shapiro in ‘The Hart-Dworkinian Debate: A short guide for the perplexed’ suggests that positivists can accommodate for cases like Henningsen and take an “exclusivist route” contending that “judges are legally obligated to apply extra-legal norms” or an “inclusivist route” contending that “ the grounds of law can be moral in nature, provided that there is a convention among judges to regard those facts as the grounds of law”, suggesting that Dworkin’s interpretation of Hart is misconstrued in that he fails to acknowledge this rendering Hart too far out of the scope of weak discretion.

Institutional vs Pedigree approach

A further assertion of how Dworkin misinterprets Hart would bolster the overarching argument that misconstruction limits the validity of his account of adjudication. Dworkin’s institutional approach towards adjudication posits a process of rational reconstruction whereby principles, policies etcetera, exist to support positive laws like statutes. Therefore, to identify the law you need to be inclusive of multifarious sources, a lot of which consequence themselves off social practices such as rights – an example of the moral inseparability from law aspect of Dworkin’s thesis. Mr Justice Hercules as his fictitious Dworkinian construct represents the ideal judge. The judge utilises an amalgamation of assorted sources to decide cases. Following from this, Dworkin contends that instead of Hart viewing judges as creators of the law, he could acknowledge ‘facts of narrative consistency’. This is the idea that aspects of case law ratio decidendi are inferred from facts, therefore judges do not create new law, they imply concepts from existing rules.

However, Dworkin is blind to Hart sharing a similar sentiment as seen in his critique of rule scepticism where Hart advances that rules are not binding on judges. Hart postulates that rules have an ‘internal aspect’ that constitute of the attitude judges have towards certain conduct, “decisions are reached by… genuine effort to conform to rules consciously taken as guiding standards of decision”. The notion that rules are not binding on judges, hence judges are viewed as cynical conspirators does not do justice to this internal view, internal suggesting it relates to inference, therefore morality, hence closely parallels ‘facts of narrative consistency’. This suggests that Dworkin’s account of Hart was falsely interpreted; he viewed him closer to Hard positivism by suggesting he was entirely and unreservedly focussed on pedigree, statutory fact.

Dworkin's apocryphal approach ?

Moreover, for Dworkin, Hart suggesting that new law is created purports an inconsistent nature of law and therefore Hart does not recognize the legal objective of the court which is to confer rights on individuals fairly and to do so it must be predictable by virtue of consistency. Instead, Dworkin suggests in his Right Answer Thesis that systems deal with vagueness and uncertainty, the ‘open-textured’ nature of law, internally. They have a set of resources to do so. Furthermore, in response to Hart’s contention of indeterminacy of aim or purpose that lends discretion to judges to make new law when such cannot be interpreted from statute, is fictitious. To Dworkin Legal controversy is a construct, it only exists because we think we are correct. However, in light of the discussions above, it becomes clear that on Dworkin’s misinterpretation and construction of Harts account of adjudication, such arguments would be rendered null, void, and invalid.

Conclusion

This essay concludes that Dworkin does injustice to what we know of the judicial process as enquired from case law. This is because Dworkin misinterprets and thus construes incorrectly Hart’s theory. The consequence of this is that despite his work being a revolutionary critique of Hart’s account of adjudication, his misinterpretation of it means he is fatally flawed with particular respect to the legal comprehension of judicial processes.

Revised version of 2022 original exam paper.