Exposing Hercules' Achilles Heel: Dworkin and the Single Right Answer Thesis
| Author | Patrick Horan |
| Position | Senior Sophister LLB Candidate, Trinity College Dublin |
| Pages | 103-118 |
ExPoSING
HERCULES' ACHILLES
HEEL:
DWORKIN
AND
THE
SINGLE
RIGHT
ANSWER
THESIS
PATRICK
HORAN*
The
eternal
challenge
of
jurisprudence
is
the
rational explanation
of
the
governing
dynamics
of
law and
legal
practice
in
a
form
capable
of
withstanding
the erosion
of
humanity's
evolving
understanding.
In
the
empirical
vacuum
of
the
science
of
law,
there
is
an
intuitive
and
understandable
comfort
in
equating
the
longevity
of
a
particular
theory
with its
intellectual
strength.
A
theory which
has
captured
the
imagination
of
its
peers'
impacts
upon
its
subject
with
great ferocity,
and
its
acceptance
as
rational
or
even
truthful
is
achieved
more easily.
In the
field
of
jurisprudence,
Ronald
Dworkin's
formidable theory
of
adjudication
stands
as
a
testament
to
this.
Dworkin's
thesis
in "Hard
Cases"' began
as
a
studied
response
to
the
theory
of
H.L.A.
Hart.2 Hart
believed
that
at
the
outer
limits
of
law,
a
condition
he
described
as
the
"open
texture",
there
lay
a
lacuna
where
judges
had
an
unavoidable
and
unfettered discretion
in
deciding
cases.'
For
Dworkin,
who
believed
that
judges
"neither
are,
nor should
be
deputy
legislators",
4
this was
an
unacceptable
assertion.
He
instead formulated a
complex,
though
phenomenologically
appreciable
alternative
as
to
how a
judge
should
decide
a
hard
case.
Relying
on
right-bearing
principles,
the
judge
must
analyse
all
the
relevant preceding
legal
material
before
him
and
from
that
create
a
justifiable
principle which
will
fit the
material.
This
principle
will
then
be
used
to
decide
the
hard
case.
In
order
to
ensure
a fit
.
Senior
Sophister LLB
Candidate,
Trinity
College
Dublin.
The
author
would
like
to thank Dr.
Oran
Doyle for
his
advice
on
an
earlier
draft
of
this article.
I
Dworkin,
"Hard
Cases"
(1974-75)
88
Harv
L
Rev
1057.
2
Dworkin
had been
building
this
critique
of
Hart
in
a
number
of
articles
leading
up
to
the
publication
of
"Hard
Cases",
including
"The
Model
of
Rules"
(1967-68)
35
U
Chi
L
Rev 14
and
"Social
Rules
and Legal
Theory"
(1971-72)
81
Yale
LJ
855.
Dworkin
later used
his
theory
of
adjudication
to
present
a
grand concept
of
the
nature
of
law
and
of
the
legal
system
in
his
two
most
renowned works
Taking
Rights Seriously
(Duckworth,
1977)
and
Law's
Empire
(Fontana,
1986).
Hart,
The
Concept
of
Law
(2
nd
ed.,
Oxford University
Press,
1994).
Dworkin
"Hard
Cases"
loc.
cit.,
at
1060.
©
2006
Patrick
Horan
and Dublin University
Law
Society
Trinity
College
Law
Review
the
judge
may have
to
classify
some
material
as
mistaken,
an
aberration
which
loses
its
ability
to
influence
any
principle
made.
This
classification
is
possible,
and
indeed
necessary,
to
allow the
"law
as
integrity"
model
to
operate by
requiring that right
at
issue
be
determined
by
referencing
the
prior
legal
material
to
show the
law
in
its
best light.
Mistakes,
or
decided
legal
material
which
fail to
accord with
this
process, must
be
discarded
by
the
judge
so
as
to
provide
a
consistent
principle
with
which
the
hard
case
is
resolved.
Having presented
this
theory,
Dworkin
goes
further:
attempting
to
demonstrate that
the
law
(or
at
least
the
law
as
integrity
model)
yields,
in
every
situation,
a
single
right
answer
to
a
case.
Dworkin
rests
this
assertion
on the
basis
that
the
principle used
by
the
judge
in
deciding
the
case
has
been
generated
by
ensuring
a
consistent best
fit
with
the
preceding
legal
material
and
that
this
"best
fit"
justifies
the
law.
If
the
principle
used
is
the
best
fit
and
the
law
itself
is
a
"seamless
web"
then
by
consequence
only
one
right
answer may exist
in
each
case.
Dworkin's
bold assertion
has faced
many
challenges
since
its
first
articulation almost thirty
years
ago.
His
painstaking
attempt
to
provide
an
accurate,
democratic account
of
judicial
reasoning
is
seriously
jeopardised
by,
as
many
would
see
it,
an
unnecessary attempt
to
prove
that
his
theory
yields,
in
every
situation,
a
single
right
answer
to
the outcome
of
a case.
This
article
explores
the concept:
asking first whether
Dworkin's
own
thesis
has
the
intellectual capacity
to
support
the
right
answer
thesis
without succumbing
to
the
faults
he
levels
at
other
theorists'
writings.
Second,
it
examines
the
criticisms
of
Dworkin's
theory
levelled
by
other
notable
jurists
and
questions
whether
they
are
entirely
justified.
Finally,
the
right
answer
thesis
is
re-evaluated
in
the
light
of
modem
advances
in
the
understanding
of
decision-making,
leading
to
the issue
of
whether
the
insularity
of
jurisprudence
can
ever
truly provide
answers
as
to
the
truth
behind
law
and
adjudication.
Dworkin's
Own
Theory
Rights
and
Democracy
The
interpretive model
of
law
requires that
a
judge
who
asserts
a
proposition
of
law
presuppose
a
theory
that
sees law
in
its
best
light.
Dworkin's
articulated version
of
this
model
is
called
"law
as
integrity"
which
sees
the
rights
thesis
accepted
and
the legal
materials
interpreted
in
its
light. Central
to
the
rights
thesis
is
the
proposition
that
"the
community,
[Vol.
9
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