Ronald Dworkin's Views On Judicial Discretion

Counter-Position to my argument

The question at hand is whether judges can exercise discretion when deciding cases. Different theories arrive at different conclusions. Legal positivists, such as H. L. A. Hart, claim that in difficult cases judges do exercise discretion. An alternative theory of law offered by Ronald Dworkin contains some aspects of positivism. Dworkin believes that judges do not have discretion. This is a counter position to my argument that judges do have judicial discretion.

Firstly, we need to look at what Dworkin and positivists mean by discretion. Dworkin distinguishes between ‘weak’ discretion and ‘strong’ discretion. The ordinary usage of the term ‘discretion’ refers to ‘weak’ discretion. The discretion that is attributed to a person with final authority to make a decision, a judge, is also ‘weak’ discretion. Dworkin defines a ‘strong’ concept of discretion as where someone who has ‘discretion’ in making a decision is not bound by standards set by an authority. This is the kind of discretion Dworkin is concerned with.

Dworkin interprets the positivist 's claim that a judge has discretion as meaning that the judge has the right to make any decision he wishes and that he is not obligated to arrive at any particular decision. This is the claim of the legal positivist to which Dworkin objects.

Dworkin and positivists believe that in most cases judges arrive at decisions by applying pre-existing law. In such cases, judges exercise no discretion in formulating their