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The critical legal studies movement also vehemently argue against Dworkin that judicial discretion does exist and in fact no coherent political morality does exist. According to them legal arguments are indeterminate because of the conflicts of underlying principles or purposes of rules. Such conflicts according to the crits lie at the foundation of legal reasoning and cannot be reconciled.

 

In practise one principle is treated as dominant and used more, whilst the other is held to be exceptional, so that the contradiction is not perceived to present a difficulty for the coherence of law. But the very fact that occasional appeal is made to the disfavoured principle or purpose reveals that the underlying tension is never resolved. So the coherence or the integrity of law is always an illusion because it involves the marginalisation of other principles or policies which do not fit.

 

The crits believe that the belief advocated by Dworkin that ultimately all legal principles can be resolved rests fundamentally on a view that certain institutional patterns at the foundations of society are necessarily linked together, like democracy, the rule of law and private property. No such settlement can be definitely found because they are all contingent and malleable and dependent on the disposition of society. It has also been advanced by commentators that judicial discretion is a reality because ultimately even moral arguments pre suppose a choice.

 

Peczenick points out that the prima facie character of moral values and principles means that they do not provide definitive guidance to action but only moral reason. These reasons must be weighed with other considerations in order to obtain a definitive moral norm. But even then the justification of successive weightings must run out of reason at some point so thus an arbitrary assumption underlies all justification , because in justificatory arguments there is a final unjustified choice as to the values underlying axiological premises, hence discretion.

 

The idea of discretion could only be avoided if when a judge is presented with a hard case with competing but different moral principles a judge relies on an already established set of priorities proscribed by law. So if for all such cases there was always to be found in the existing law some unique set of higher order principles assigning relative weights or priorities to such competing lower order principles. But there is no such schema for determining a hierarchy of principles, or even if we are to concede that possibility to Dworkin, there is no such demonstrable schema.

 

. However merit can be found in Dworkin's rejection of discretion which again involves the rights of citizens. Dworkin is opposed to the idea of judges making law because he believes in the doctrine of the separation of powers , if that is not maintained then we as citizens are faced with the proposition of unelected officials making decisions that are integral to our lives. This may be the reality of our current situation in the UK at least, but does that mean that it is a good thing?

 

Why then the clamour by the Labour Government to limit the powers of the House of Lords, apart from obvious reasons of self interest it was also because of the appeal that they knew that it would hold with a good proportion of the electorate. Who are unhappy about the idea of people who have no duty to account to them having so much control over them in terms of having the power to veto bills that could depending on their content enhance their lives or the inverse support bills which the public oppose .

 

Hence also the concern with the advent of the Human Rights Act 1998 in 2000 that perhaps there would be or should be a politicalisation of the courts because they would be making constitutional decisions and perhaps it was time that they showed their political colours and we moved to a model more like the American Supreme Court where the political persuasion of the judges are known. Rather than, the Brits maintaining the fai?? ade of complete judicial political impartiality.

 

The other problem that Dworkin has with judicial discretion is retroactive legislation. Even if the positivist defence is accepted, that a defendant or plaintiff has no cause to complain because their position was in any case uncertain so no reasonable expectations were upset, that does not negate from the fact that in the case of a defendant there was no liability at the time of the act and that the idea of the rule of law requires that official acts be in accordance with the law.

 

Here another criticism of Dworkin's theory becomes apparent. If there are always pre existing legal rights on one side or another in every case that comes to a court then those legal rights should also be apparent if the dispute was brought to the legislature. The legislature often changes pre -existing rights either through retroactive legislation or new law which upsets existing rights.

 

So either Dworkin needs to explain why despite appearances to the contrary legislatures avoid upsetting pre-existing legal rights or alternatively why it is permissible for legislatures but not courts to override them. A Dworkinian might say that the institutional difference between the courts and the legislature justify this disparity but if they choose to defend this line of reasoning in that manner then what can be said of the value of such legal rights, which only the courts must honour but the legislature can change at whim.

 

The positivists also offer a stronger defence against the retroactive legislation critique than Dworkin supposes, which is that if one denies that there are any pre-existing legal rights then one can deny that a decision in a case is ever retroactive, because no decision can undo the past, at most it can affect the future affects of past acts. In any case there is no reason to believe that in the absence of pre-existing law the just situation is for the defendant not to lose. Both criticisms are entwined with Dworkin's fundamental objection to judicial discretion which is that judges should not make the law.

 

Hart thinks that the fact that judges are entrusted with law making powers to deal with disputes which the law fails to regulate may be regarded as a necessary price to pay for the avoidance of the inconvenience of alternative methods of regulation such as reference to the legislature on every occasion a dispute arises. A small price indeed if judges are constrained in the exercise of these powers and cannot instigate wide reform but only rules to deal with specific issues thrown out by a particular case and especially since ultimate control rests with the legislature who can repeal or amend a judges decision.

 

Synonymous with this is the idea that Dworkin is deficient in his perception of rule making in the modern state. Administrative agencies which contain unelected officials constantly make regulation with the force of the law. Administrative agencies are created by legislation and some guide lines must be provided to them, but such guidance cannot dictate all the decisions and they will often act in a very limited discretionary capacity which is accepted as necessary in an age where Government functions are too large to be handled by the elected few but have to be entrusted to others.

 

Why can analogy not be made to the courts where it could be said that similar limited law making authority is conferred on them? Dworkin has not shown that judicial discretion does not exist for that to be true the following would have to be proved, there is one correct theory of morality, no two theories of legal practice can be equally supported, the principles of such a theory must be capable of extension to any conceivable case, there must be one correct balancing of legal principles, this balance of principles must determine a unique solution to a case and there can be no two different ways of achieving this balance.

 

Dworkin has not been able to show that all those claims are true. It is ironic that the very thing that one values in Dworkin's theory, his idealism, is simultaneously what marks its downfall. Perhaps Dworkin's theory is how the law should be to justify state coercion but unfortunately legal utopia has not yet arrived.

The critical legal studies movement also vehemently argue against Dworkin that judicial discretion does exist and in fact no coherent political morality does exist. According to them legal arguments are indeterminate because of the conflicts of underlying principles or purposes of rules. Such conflicts according to the crits lie at the foundation of legal reasoning and cannot be reconciled.

In practise one principle is treated as dominant and used more, whilst the other is held to be exceptional, so that the contradiction is not perceived to present a difficulty for the coherence of law. But the very fact that occasional appeal is made to the disfavoured principle or purpose reveals that the underlying tension is never resolved. So the coherence or the integrity of law is always an illusion because it involves the marginalisation of other principles or policies which do not fit.

The crits believe that the belief advocated by Dworkin that ultimately all legal principles can be resolved rests fundamentally on a view that certain institutional patterns at the foundations of society are necessarily linked together, like democracy, the rule of law and private property. No such settlement can be definitely found because they are all contingent and malleable and dependent on the disposition of society. It has also been advanced by commentators that judicial discretion is a reality because ultimately even moral arguments pre suppose a choice.

Peczenick points out that the prima facie character of moral values and principles means that they do not provide definitive guidance to action but only moral reason. These reasons must be weighed with other considerations in order to obtain a definitive moral norm. But even then the justification of successive weightings must run out of reason at some point so thus an arbitrary assumption underlies all justification , because in justificatory arguments there is a final unjustified choice as to the values underlying axiological premises, hence discretion.

The idea of discretion could only be avoided if when a judge is presented with a hard case with competing but different moral principles a judge relies on an already established set of priorities proscribed by law. So if for all such cases there was always to be found in the existing law some unique set of higher order principles assigning relative weights or priorities to such competing lower order principles. But there is no such schema for determining a hierarchy of principles, or even if we are to concede that possibility to Dworkin, there is no such demonstrable schema.

. However merit can be found in Dworkin's rejection of discretion which again involves the rights of citizens. Dworkin is opposed to the idea of judges making law because he believes in the doctrine of the separation of powers , if that is not maintained then we as citizens are faced with the proposition of unelected officials making decisions that are integral to our lives. This may be the reality of our current situation in the UK at least, but does that mean that it is a good thing?

Why then the clamour by the Labour Government to limit the powers of the House of Lords, apart from obvious reasons of self interest it was also because of the appeal that they knew that it would hold with a good proportion of the electorate. Who are unhappy about the idea of people who have no duty to account to them having so much control over them in terms of having the power to veto bills that could depending on their content enhance their lives or the inverse support bills which the public oppose .

Hence also the concern with the advent of the Human Rights Act 1998 in 2000 that perhaps there would be or should be a politicalisation of the courts because they would be making constitutional decisions and perhaps it was time that they showed their political colours and we moved to a model more like the American Supreme Court where the political persuasion of the judges are known. Rather than, the Brits maintaining the fai?? ade of complete judicial political impartiality.

The other problem that Dworkin has with judicial discretion is retroactive legislation. Even if the positivist defence is accepted, that a defendant or plaintiff has no cause to complain because their position was in any case uncertain so no reasonable expectations were upset, that does not negate from the fact that in the case of a defendant there was no liability at the time of the act and that the idea of the rule of law requires that official acts be in accordance with the law.

Here another criticism of Dworkin's theory becomes apparent. If there are always pre existing legal rights on one side or another in every case that comes to a court then those legal rights should also be apparent if the dispute was brought to the legislature. The legislature often changes pre -existing rights either through retroactive legislation or new law which upsets existing rights.

So either Dworkin needs to explain why despite appearances to the contrary legislatures avoid upsetting pre-existing legal rights or alternatively why it is permissible for legislatures but not courts to override them. A Dworkinian might say that the institutional difference between the courts and the legislature justify this disparity but if they choose to defend this line of reasoning in that manner then what can be said of the value of such legal rights, which only the courts must honour but the legislature can change at whim.

The positivists also offer a stronger defence against the retroactive legislation critique than Dworkin supposes, which is that if one denies that there are any pre-existing legal rights then one can deny that a decision in a case is ever retroactive, because no decision can undo the past, at most it can affect the future affects of past acts. In any case there is no reason to believe that in the absence of pre-existing law the just situation is for the defendant not to lose. Both criticisms are entwined with Dworkin's fundamental objection to judicial discretion which is that judges should not make the law.

Hart thinks that the fact that judges are entrusted with law making powers to deal with disputes which the law fails to regulate may be regarded as a necessary price to pay for the avoidance of the inconvenience of alternative methods of regulation such as reference to the legislature on every occasion a dispute arises. A small price indeed if judges are constrained in the exercise of these powers and cannot instigate wide reform but only rules to deal with specific issues thrown out by a particular case and especially since ultimate control rests with the legislature who can repeal or amend a judges decision.

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