Inhis essays, he “creates” the ruling theory of law which is the theory made toreplace legal positivism. His principle target is H.L.A.
Hart and he namespositivism “the model of rules”1. As explained in Hart’stheory above, in the “model of rules” there is the rule of recognition thatdominates, because it enables one to know which rule is valid or not in a legalsystem2. If one stays in thecontext of a legal positivist, this idea is actually simple and realistic. Arule just has to fulfill the conditions of the rule of recognition to beconsidered valid or not. But because one needs legal rules to produce new legalrights, an issue arises when a judge comes to a case and the rules areinsufficient. In this situation, the judge has the option to use other methodsto make his decision3.
Here the solution wouldnot be unique but there would be many solutions possible. One can take theexample of a car sign in a park; it is clear for everyone that vehicles areforbidden in the park, but does that also mean that a child who drives a littlecar as a toy is also forbidden? Can the child harm someone in the park with hislittle car? In this case, where the rule is not specific enough, it is for thejudge to decide how it will be applied.Thisis what Dworkin fails to accept, because for him there are rules for every caseand such a situation would be impossible in his theory. He explains his idea with the usage ofprinciples; one cannot run out of rules (like in the model of rules) if oneadditions rules with principle4. “principles have adimension that rules do not – the dimension of weight or importance”5.
That way, there cannot bejudicial discretion, because the law will provide a solution for every case. Infact, for Dworkin a judge should not have discretion or at least a very weakone, because a judge is bound with the rules and legal principles that guideone in the applying of the rules6. Aware that this argument is notsufficient to oppose to the positivist view, he later details, in the chapterof Hard Cases, a more complex theory. A.
TheHercules’ theory By presenting a fictitious characterthat represents a perfect judge that knows the truth, Dworkin extends theprecedent idea of principles. This judge is he named Hercules, such as themythical hero form ancient Greece. This judge’s responsibility is to createsome principles that are going to help to explain the existing rules7. In this theory, Dworkinelaborates three theories; the theory of the constitution (“the constitutionsets out a general political scheme that is sufficiently just to be taken assettled for reasons of fairness”)8, of legislation (“theconcepts of legislative purpose and common law principles are devices forapplying that general political theory to controversial issues about legalrights”)9 and of precedent (“anystatue has the power to alter legal rights”)10. Hercules work is then toset a couple of precedent that will match with those theories. If there are twopossible principles that can fit those theories, then Hercules can pick up theone that is going to appropriate to our morality (theory of morality). This setof principles is like a theory that Hercules has to create on his own.
This”perfect” theory will then even be able to solve the “hardest case”, a casethat is difficult to solve because of its complexity. To continue, Hard, like everypositivist, thinks that the answer to what consists about, is a factual matter,because he separates morality from law. However, Dworkin thinks it is more anormative matter, because he considers that “judges must sometimes makejudgments of political morality in order to decide what the legal rights oflitigants are”11. Indeed,Hercules has to take into account moral issues to solve a case.
Now that one has explained theHercules’ theory, one can now detail what the rights thesis, mentioned above, actually is12.Because political morality is important to decide whose rights are to bepredominated in a hard case, one cannot know in advance which legal rights onepossesses. For Dworkin, because there is always a theory (principles decided byHercules) that will prevail, there exists a solution for each case. Thisopposes him to Hart, who thinks that in a hard case new legal norms are made. The last point about Dworkin onHart, is the distinction that Dworkin does between arguments of principle andarguments of policy.
B. Policyvs principleDworkinmakes a clear distinction between both notions: Argumentsof policy justify a political decision by showing that the decision advances or protects somecollective goal of the community as a whole while argumentsof principle justify a political decision by showing that the decision respects or secures someindividual or group right13Whilearguments of policy are more effective in the legislature, arguments ofprinciple should be more used by the judges when deciding the litigants’rights. Legislative policy is what creates rights.
The court should ensure theobedience of those rights, but this does not mean that the court’s decisionsare arguments of policy. In many cases, also in a hard case, both types can beused14. Furthermore, in a democratic system,many people argue that judges should not have as much right, because they arenot elected by the people such as the government or the parliament15.
Dworkin however, saysthat the judges just use arguments of principle, so they are not legislatorslike la Chambre des Députés in Luxembourg. But he also says that if a judgemakes a policy decision, the democracy can go against him16. One can observe he boththe judicial activism and the limits of the judges for lawmaking.1 R. DWORKIN, “The Model of Rules I”, Taking Rights Seriously, HarvardUniversity Press, 1977, p.162 Id. p.
213 Id.p.224 R. DWORKIN, “The Model of Rules I”, Taking Rights Seriously, HarvardUniversity Press, 1977, p.295 Id.
p.266 Id. p.32 7 R.
DWORKIN, “Hard Cases”, Taking Rights Seriously, Harvard University Press, 1977, p.1058 Id.p.1069 Id.
p.10510 Id.p.10811 R. DWORKIN, “Hard Cases”, Taking Rights Seriously, Harvard University Press, 1977, p.
9012 Id.p.12313 Id.p.8214 Id.
p.8315 Id. p.
8416 R. DWORKIN, “Hard Cases”, Taking Rights Seriously, Harvard University Press, 1977, p.85-86