Ronald Dworkin, positivist, judicial discretion, dispensation, controversial decision, judges
In a series of books and articles published over the last thirty years, Ronald Dworkin has relentlessly attacked the positivist view according to which law is a species of empirically verifiable fact. A position closely associated with this view, and with which Dworkin also takes issue, is the doctrine of judicial discretion. This doctrine asserts that in hard cases - cases in which it is unclear what the law requires - there is no legally required dispensation, so that judges are entitled to use discretion in making their decision. Dworkin disagrees, maintaining that in many such cases a thorough investigation into the implications of legal standards bearing on the issue in question will reveal a unique solution. His critics almost uniformly portray this claim as entailing that there is a single right answer for every case, and subsequently dismiss it as requiring too much of the language in which law is expressed and the judges who must interpret it. This is ironic, since Dworkin's objection focusses on what he takes to be an unrealistically strong demand by positivists concerning the verifiability of legal standards. In what follows I examine Dworkin's arguments so as to show that his detractors have largely misunderstood his position regarding the resolvability of hard cases. I argue that he is correct in maintaining that judges may sometimes be required to reach controversial decisions, but that this is compatible with a criterion of verifiability commonly encountered in the empirical sciences.
David Jennex, "Dworkin and the Doctrine of Judicial Discretion" (1992) 14:3 Dal LJ 473.