Dworkin and Judicial Discretion: A Critical Analysis of the Pre-Existence Thesis

• Author: Donna Lyons
• Position: Senior Sophister LLB Candidate, Trinity College Dublin
• Pages: 1-12

DWORKIN

AND

JUDICIAL

DISCRETION:

A

CRITICAL

ANALYSIS

OF

THE

PRE-EXISTENCE

THESIS

DONNA

LYONS*

Dworkin

is

one

of

legal

positivism's

most

persistent

critics.

He

seeks

to

refute the

positivist

doctrine, chiefly

posited

by

Hart, which

asserts

that

judges

act

as

deputy

legislators

where

the

rules

of

a

legal

system

run

out.

Dworkin's

argument

controverts

the

main tenets

of

positivism

because

judicial

originality

on

the

positivist

model

is

offensive: this

is

so

because

it

is

fundamentally

undemocratic

and

amounts

to

a

retroactive

application

of

the

law.

For

Dworkin,

the

positivist

model

of

adjudication

is

unsatisfactory

because

it

provides

the

judge

with free

reign

to

reach

outside

the

positive

material

in

determining

a

litigant's

rights

and

obligations.

The

judge

thus

imposes

her

decision

ex

post

facto.

Dworkin's

foundational

device

for

refuting

this

adjudicative model

is

the

concept

of

the

principle.

Dworkin

advances

four claims

in

relation

to

principles

in

order

to

dispute

positivism,

namely,

(a)

principles

are

logically

distinct

from rules,

(b)

they

are

nevertheless

a

part

of

the

legal

system,

(c)

no

rule

of

recognition

could exist

as

it

could

not

house

principles

within

its

walls,

and

finally,

(d)

judges

have

no

discretion

in

the

strong

sense,

as

they

are

legally

bound

to

have

recourse

to

principles.'

There

has

been

considerable

controversy over

the

validity

of

these

propositions, but

their

strength

need

not

be

assessed

for

the

purposes

of

this

argument.

The

author

will grant

Dworkin

his

premises

but

demonstrate

how

his

use

of

them

gives

rise

to

an

* Senior

Sophister

LLB

Candidate, Trinity

College

Dublin.

I

am

extremely

grateful

to

Dr

Oran

Doyle

for

his

helpful

comments

on

an

earlier draft

of

this

paper

and

for

his

ongoing

jurisprudential

advice. Very

special

thanks

are

also

due

to

Donal

Lyons, David

Walker

and

David

Prendergast

for

beneficial

comments

and

enlightening discussions pending

the

article's

completion. Above

all,

I

would

like

to

express immense gratitude

to

Patricia

and

Donal

Lyons

for

their

unconditional

support throughout

my

assorted

endeavours.

Dworkin outlines

two weak senses

of

discretion

and

one

strong one.

Weak

discretion

arises

where

the

authority

in

question

is

the

final

one and

therefore

not

subject

to

review,

or

alternatively,

where

the

adjudicator

is

required

to

exercise

judgment

in

arriving

at

her

decision.

Discretion

in

the

strong

sense

is

a

situation

where the

official

is

simply

not

bound

by

the

standards

which

are

set

for

her. Dworkin controversially

asserts that

Hart's

judges

have

discretion

in

the

strong

sense

and

thus

Dworkin

seeks

to

refute

this.

© 2008

Donna Lyons

and

Dublin

University

Law

Society