DWORKIN'S “RIGHT ANSWER” THESIS AND THE FRUSTRATION OF LEGISLATIVE INTENT—A CASE‐STUDY ON THE LEASEHOLD REFORM ACT
| Published date | 01 March 1982 |
| Author | Gordon Woodman |
| Date | 01 March 1982 |
| DOI | http://doi.org/10.1111/j.1468-2230.1982.tb02473.x |
THE
MODERN
LAW
REVIEW
Volume
45
No.
2
DWORKTN’S
“
RIGHT ANSWER
”
THESIS AND
A
CASE-STUDY
ON
THE LEASEHOLD
REFORM ACT
THE FRUSTRATION
OF
LEGISLATIVE
INTENT-
I.
THE
‘‘
RIGHT ANSWER
”
THESIS
IT
is
a
truth of legal life universally observed that judges in apply-
ing statutes do not always produce the effects intended by the legis-
lators. It is
a
proposition widely asserted that the judges exercise
discretion, motivated by policies at odds with the legislators. Their
nefarious enterprise is supposedly facilitated by the parliamentary
draftsmen, whose linguistic ineptitude is exceeded only by the
judicial hypocrisy-although it is
also
said that the process is in-
evitable because it is in the nature of legal rules to leave judges
leeway.’ The picture is pleasing only to those perversely fascinated
by the contemplation of frustrated endeavour.
That view is challenged by among others Ronald Dworkh2 He
1
Perhaps the clearest instances
of
such criticism are the occasional, ephemeral
commentaries in the daily and weekly press.
A
more fully argued example
Is
J.
I.
Reynolds.
‘‘
Statutory Covenants of Fitness and Repair
:
Social Legislation and the
Judges
’*
(1974) 37
M.L.R.
377,
challenged in a manner which lends support to the
argument of this paper in M.
J.
Robinson,
“
‘
Social Legislation
’
and the Judges:
a Note by way
of
Rejoinder
”
(1976) ‘39
M.L.R.
43.
See also Andrew Ardcn,
“
The
Rent Acts: A Personal View”
(1976) 126
New
L.J.
319,
criticising the judicial
approach to the Rent Acts, .legislation similar to that discussed below. The criticisms
are
nourished by the continuing literature inspired by the rule-scepticism
of
the
American realists. The older literature is well epitomised in Karl
N.
Llewellyn,
The
Common
Law
Tradition
(1960),
App.C. of which
a
modern English version is given
in William Twining and David Miers,
How
ro
do Things with Rules
(1976),.
pp.
29-
21 1.
Llewellyn’s own work argues that decisions are
“
not foredoomed in logic,”
although not “the product of uncontrolled will which is as good as wayward”:
ibid.
at
p.
4;
see also
ibid.
at pp.
213-219, 237.
(See also William Twining,
Karl
Llewellyn and the Realisr Movement
(1973),
especially at pp.
32, 254-255, 408,
note
22.
for useful observations
on
the ambiguity
of
the term
“
rule scepticism
”
and
of
Llewellyn’s belief in the predictability
of
the courts he studied.) For more recent
examples of literature based on the assumption of judicial discretion, see:
J.
A.
G.
Griffith,
The Polirics
of
the Judiciary
(1977),
esp. Chap.
8;
Robert
B.
Seidman.
The
State, Law and Development
(1978),
Chap.
18;
Robert Stevens,
Law and Politics
(1979),
passim.
2
Ronald Dworkin, “Judicial Discretion”
(1963)
60
Journal
of
Philosophy
624;
Ronald Dworkln, Review
of
Wasserstrom,
The Judicial Decision
(1964-65) 75
Erhics
47;
Ronald Dworkin.
Taking Rights Seriously
(1977, 1978.
hereafter
TRS)
esp.
Chaps.
2, 3, 4, 13,
Appendix; Ronald Dworkin, “No Right Answer?
”
P.
M.
S.
121
VOL.
45
(2)
1
122
THE MODERN LAW REVIEW [Vol.
45
contends that judicial discretion does not comprehend that
“
strong
discretion
”
whereby a decision-maker is free from standards set
by the authority which confers his jurisdiction. While the judge
may not be bound by rules of law to reach a particular decision,
there are other legal standards, conveniently labelled
“
principles.”
which for all practical purposesS always determine the correct
result. Principles are distinguished from policies, the application
of which entails strong discretion and is
a
legislative f~nction.~ A
judge may, as a result
of
defective juristic technique, make a wrong
decision. Otherwise he cannot be criticised for
a
decision, because
there
is
a “right answer,” in the wnse of one answer alone, re-
quired by the law. Judicial decisions, therefore, enforce pre-existent
rights. This contention, which may be called the “right answer
thesis
”
is part of Dworkin’s “rights thesis,” the rest of which is
not directly in issue here.6
Hacker and
J.
Raz,
Law, Morafity and Society
(1977), p. 58, and (1977) 53 N.Y.U.L.R.
1. (Note. (i)
TRS.
consisting largely
of
previously published articles, was first published
in 1977. In the impression of 1978 the Appendix was added. (ii) References hereafter
to “No Right Answer?
”
(to be referred to thus) will be to the version in
Law,
Morafiiy and Society.
The other version is slightly longer but not significantly different
in substance.)
3
He does not assert that there must always be a right answer:
TRS
at pp. 279,
359;
“
No Right Answer?
”
pp. 59. 83-84.
4
On the distinction between adjudication and legislation, see: Dworkin (1963) above
note 2, esp. pp. 632-634, 635; Dworkin (1964-65), above note 2;
TRS,
pp. 82-84,
8688; David A. J. Richards,
“
Taking
Taking Rights Seriously
Seriously
”
(1977) 52
N.Y.U.L.R. 1265, 1306-1313; Kent Greenawalt,
“
Policy, Rights and Judicial
Decision
”
(1977) 11 Ga.L.R. 991, 1044-1047; David A.
J.
Richards,
“
Rules, Policies
and Neutral Principles: the Search
for
Legltlmacy in Common Law and Con-
stitutional Adjudication
”
(1977) 11 Ga.L.R. 1069, 1097-1101
;
Neil MacCormick,
Legal Reasoning
and
Legal Theory
(1978), esp. pp. 187-188, 242. The strongest
contrary view in respect
of
the interpretation
of
statutes is that such interpre;ftion
is the exercise
of
a power
of
delegated legislation: see,
e.g.
Douglas Payne, The
Intention
of
the Legislature in the Interpretation
of
Statutes
”
(1956) 9 C.L.P.
%.
6
Within the considerable body
of
commentary on Dworkin’s work, the following
are especially useful on the
“
right answer
”
thesis: ROW Sartorius,
“
The Justifica-
tion
of
the Judicial pision
”
(1967-68) 78
Ethics
171
;
George C. Christie,,,
“
The
Model
of
Principles Social
Policy and Judicial Legislation
”
(1971) 8 Am.Phi1.Q. 151; Joseph Raz,
“
Legal
Principles and the Limits of Law
’*
(1972) 81 Yale L.J. 823, 843-848; Kent Greenawalt,
‘I
Discretion and Judicial Decision
:
the Elusive Quest for the Fetters That Bind
Judges” (1975) 75 Co1.L.R. 359 (referring to the thesis, at p. 378, as the
“
no
discretion thesis
”);
123
U.Penn.L.R. 574; Anon,,
“
Dworkin’s Rights Thesis (1976) 74 Mich.L.R. 1167;
H.
L. A. Hart, “Law in the Perspective
of
Philosophy: 17761976” (1976) 51
N.Y.U.L.R. 538. 545-551
;
E. Philip Soper, “Legal Theory and the Obligation
of
a Judge: the Hart/Dworkin Dispute
”
(1976-77) 75 Mich.L.R. 473; Greenawalt,
previous note, 1035-1042; Stephen R. Munzer,
‘‘
Right Answers, Preexisting Rights.
and Fairness” (1977) 11 Ga.L.R. 1055: R. Lea Brilmayer, “The Institutional and
Empirical Basis
of
the Rights Thesis
”
(1977) 11 Ga.L.R. 1055; MacComick, previous
note,
passim
and esp. Chap. VII. pp. 224-228, 246-255; Michael Mandel,
“
Dworkin,
Hart, and the Problem
of
Theoretical Perspective” (1979) 14 Law
&
S0c.R.
57;
Thomas Morawetz,
The
Philosophy
of
Law
(1980), Chaps. 1-2; John M. Farago,
I‘
Judicial Cybernetics
:
the Effects
of
Self-Reference in Dworkin’s Rights Thesis
”
(1980) 14 Valparaiso L.R. 371; John M. Farago,
‘‘
Intractable Cases
:
the Role
of
Uncertainty in the Concept
of
Law” (1980) 55 N.Y.U.L.R. 195. Mandel and
Morawetz argue that the apparent difference
of
opinion between Dworkin and Hart
may be explained, at least in part, as a difference in perspective,
or
as arising from
a
difference between the questions posed. The present paper argues that the difference
is irreconcilable.
(1968) Duke L.J. 649, pp. 656-669; Rolf Sartorius,
Noel B. Reynolds,
“
Dworki:, as Quixote
”
(1975)
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