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Hard Cases

Author(s): Ronald Dworkin

Reviewed work(s):

Source: Harvard Law Review, Vol. 88, No. 6 (Apr., 1975), pp. 1057-1109

Published by: The Harvard Law Review Association

Stable URL: http://www.jstor.org/stable/1340249 .

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APRIL

1975

NUMBER

VOLUME

HARVARD

LAW REVIEW

HARD CASES t

Ronald Dworkin *

Philosophers and legal scholars have long debated the means by

which decisions of an independent judiciary can be reconciled with

democratic ideals. The problem of justifying judicial decisions is

particularly acute in "hard cases," those cases in which the result

is not clearly dictated by statute or precedent. The positivist theory

of adjudication - that judges use their discretion to decide hard

cases - fails to resolve this dilemma of judicial decisionmaking.

Professor Dworkin has been an effective critic of the positivist

position and in this essay he provides an alternative theory of ad-

judication that is more consistent with democratic ideals. He first

posits a distinction between arguments of principle and arguments

of policy and suggests that decisions in hard cases should be and are

based on arguments of principle. He then illustrates how this dis-

tinction is used in cases involving constitutional provisions, statutes,

and common law precedents.

HIS essay is a revised form of an inaugural lecture given

at Oxford in June of I97I. I should like to repeat what I

said then about my predecessor in the Chair of Jurisprudence.

The philosophers of science have developed a theory of the growth

of science; it argues that from time to time the achievement of a

single man is so powerful and so original as to form a new para-

digm, that is, to change a discipline's sense of what its problems

are and what counts as success in solving them. Professor H.L.A.

Hart's work is a paradigm for jurisprudence, not just in his coun-

try and not just in mine, but throughout the world. The province

of jurisprudence is now the province he has travelled; it extends

from the modal logic of legal concepts to the details of the law of

criminal responsibility, and in each corner his is the view that

others must take as their point of departure. It is difficult to

think of any serious writing in jurisprudence in recent years,

certainly in Great Britain and America, that has not either

claimed his support or taken him as a principal antagonist.

This

essay is no exception.

His influence has extended, I might add, to form as well as

t Copyright ? by Ronald Dworkin.

* Professor of Jurisprudence and Fellow of University College, Oxford Uni-

versity. B.A., Harvard, 1953; B.A., Oxford, 1955; LL.B., Harvard, I957.

I057

HARVARD

LAW REVIEW

[Vol. 88:I057

Io58

substance. His clarity is famous and his diction contagious: other

legal philosophers, for example, once made arguments, but now

we only deploy them, and there has been a perfect epidemic of

absent-mindednessin imitation of the master. How shall we ac-

count for this extraordinary influence? In him reason and pas-

sion do not contend, but combine in intelligence, the faculty of

making clear what was dark without making it dull. In his hands

clarity enhances rather than dissipates the power of an idea. That

is magic, and it is the magic that jurisprudence needs to work.

INTRODUCTION

A. The Rights Thesis

Theories of adjudication have become more sophisticated, but

the most popular theories still put judging in the shade of legisla-

tion. The main outlines of this story are familiar. Judges should

apply the law that other institutions have made; they should not

make new law. That is the ideal, but for differentreasons it can-

not be realized fully in practice. Statutes and common law rules

are often vague and must be interpreted before they can be ap-

plied to novel cases. Some cases, moreover, raise issues so novel

that they cannot be decided even by stretching or reinterpreting

existing rules. So judges must sometimes make new law, either

covertly or explicitly. But when they do, they should act as dep-

uty to the appropriate legislature, enacting the law that they

suppose the legislature would enact if seized of the problem.

That is perfectly familiar, but there is buried in this common

story a further level of subordinationnot always noticed. When

judges make law, so the expectation runs, they will act not only

as deputy to the legislature but as a deputy legislature. They will

make law in response to evidence and arguments of the same char-

acter as would move the superior institution if it were acting on

its own. This is a deeper level of subordinationbecause it makes

any understanding of what judges do in hard cases parasitic on

a prior understanding of what legislators do all the time. This

deeper subordination is therefore conceptual as well as political.

In fact, however, judges neither should be nor are deputy

legislators, and the familiar assumption, that when they go be-

yond political decisions already made by someone else they are

legislating, is misleading. It misses the importance of a funda-

mental distinctionwithin political theory, which I shall now intro-

duce in a crude form. This is the distinction between arguments

HARD CASES

1059

I9751

of principle on the one hand and arguments of policy on the

other.l

Arguments of policy justify a political decision by showing

that the decision advances or protects some collective goal of the

community as a whole. The argument in favor of a subsidy for

aircraft manufacturers, that the subsidy will protect national de-

fense, is an argument of policy. Arguments of principle justify a

political decision by showing that the decision respects or secures

some individual or group right. The argument in favor of anti-

discrimination statutes, that a minority has a right to equal re-

spect and concern, is an argument of principle. These two sorts

of argument do not exhaust political argument. Sometimes, for

example, a political decision, like the decision to allow extra in-

come tax exemptions for the blind, may be defended as an act of

public generosity or virtue rather than on grounds of either policy

or principle. But principle and policy are the major grounds of

political justification.

The justification of a legislative program of any complexity

will ordinarily require both sorts of argument. Even a program

that is chiefly a matter of policy, like a subsidy program for im-

portant industries, may require strands of principle to justify its

particular design. It may be, for example, that the programpro-

vides equal subsidies for manufacturersof different capabilities,

on the assumption that weaker aircraft manufacturershave some

right not to be driven out of business by governmentintervention,

even though the industry would be more efficient without them.

On the other hand, a program that depends chiefly on principle,

like an antidiscrimination program,may reflect a sense that rights

are not absolute and do not hold when the consequences for policy

are very serious. The program may provide, for example, that

fair employment practice rules do not apply when they might

prove especially disruptive or dangerous. In the subsidy case we

might say that the rights conferred are generated by policy and

qualified by principle; in the antidiscrimination case they are

generated by principle and qualifiedby policy.

It is plainly competent for the legislature to pursue arguments

of policy and to adopt programs that are generated by such argu-

ments. If courts are deputy legislatures, then it must be compe-

tent for them to do the same. Of course, unoriginaljudicial deci-

sions that merely enforce the clear terms of some plainly valid

1 I discussed the distinction between principles and policies in an earlier article.

See Dworkin, The Model of Rules, 35 U. CHI. L. REV. 14, 22-29 (1967). The more

elaborate formulation in Part II of this essay is an improvement; among other

virtues it prevents the collapse of the distinction under the (artificial) assumptions

described in the earlier article.

HARVARD LAW REVIEW

[Vol. 88:I057

Io6o

statute are always justified on arguments of principle, even if the

statute itself was generatedby policy. Suppose an aircraft manu-

facturer sues to recover the subsidy that the statute provides. He

argues his right to the subsidy; his argument is an argument of

principle. He does not argue that the national defense would be

improved by subsidizing him; he might even concede that the

statute was wrong on policy grounds when it was adopted, or that

it should have been repealed, on policy grounds, long ago. His

right to a subsidy no longer depends on any argument of policy

because the statute made it a matter of principle.

But if the case at hand is a hard case, when no settled rule

dictates a decision either way, then it might seem that a proper

decision could be generated by either policy or principle. Con-

sider, for example, the problem of the recent Spartan Steel case.2

The defendant's employees had broken an electrical cable belong-

ing to a power company that supplied power to the plaintiff, and

the plaintiff'sfactory was shut down while the cable was repaired.

The court had to decide whetherto allow the plaintiffrecovery for

economic loss following negligent damage to someone else's prop-

erty. It might have proceeded to its decision by asking either

whether a firm in the position of the plaintiff had a right to a re-

covery, which is a matter of principle, or whether it would be

economically wise to distribute liability for accidents in the way

the plaintiff suggested, which is a matter of policy.

If judges are deputy legislators, then the court should be

prepared to follow the latter argument as well as the former, and

decide in favor of the plaintiff if that argument recommends.That

is, I suppose, what is meant by the popular idea that a court must

be free to decide a novel case like Spartan Steel on policy grounds;

and indeed Lord Denning described his own opinion in that case

in just that way.3 I do not suppose he meant to distinguish an

argument of principle from an argument of policy in the technical

way I have, but he in any event did not mean to rule out an

argument of policy in that technical sense.

I propose, nevertheless, the thesis that judicial decisions in

civil cases, even in hard cases like Spartan Steel, characteristically

are and should be generatedby principle not policy. That thesis

plainly needs much elaboration, but we may notice that certain

arguments of political theory and jurisprudencesupport the thesis

even in its abstract form. These arguments are not decisive, but

they are sufficiently powerful to suggest the importance of the

thesis, and to justify the attention that will be needed for a more

careful formulation.

2 Spartan Steel & Alley Ltd. v. Martin & Co., [I973]

i Q.B. 27.

3 Id. at 36.

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