Judicial Discretion - Ronald Dworkin

Journal of Philosophy, Inc.
Judicial Discretion Author(s): Ronald Dworkin Source: The Journal of Philosophy, Vol. 60, No. 21, American Philosophical Association, Eastern Division, Sixtieth Annual Meeting (Oct. 10, 1963), pp. 624-638 Published by: Journal of Philosophy, Inc. Stable URL: http://www.jstor.org/stable/2023557 . Accessed: 21/07/2013 23:04
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624
H'IIE JOURNAL OF PHILOSOPHY SYMPOSIUM: PHILOSOPHY JUDICIAL DISCRETION* OF LAW
1. To the layman a lawsuit or a trial is an event in which a judge determines a controversy by application of established principles, rather than new principles invented to dispose of the case. He knows that individual judges may fail this ideal of justice; but he believes such failures to be aberrations, their occurrence marking injustice rather than its opposite. To him judges should and in general do, in the words of the admittedly metaphorical maxim, find the law and not make it. The layman's respect for law is founded in large part on his view that this is a fair method of deciding controversies. The academic branch of the legal profession seems now fairly agreed that the layman is mistaken. His mistake consists in not realizing that in our, as in every mature, legal system there are cases in which the rules of law dictate no result and which therefore force the judge to choose a solution, that is, to exercise judicial discretion. The belief that judges always find law, and never make it, is a tenet of a dogma called formalism, itself a result of the desire for something old-fashioned, unattainable, and bad, called mechanical jurisprudence. Some few lawyers have thought that the very idea of a legal rule which judges could apply to reach decisions was a myth. But the position presently in vogue insists rather that there are two sources of judicial decision: rule and discretion. It is thought a fallacy to ignore either of these sources, as the layman does in not allowing for choice. There remains controversy as to whether this duality in judicial technique represents only a necessary adjustment to human limitations or is itself an ideal of the judicial process, and as to its consistency with the theory of democracy. But the general proposition, that the exercise of judicial choice or discretion within areas circumscribed more or less tightly by rules is not an occasional misfiring but a characteristic feature of the legal process, is today almost a law school cliche'1
* To be presented in a symposium on "Philosophy of Law"I at the sixtieth annual meeting of the American Philosophical Association, Eastern Division, December 28, 1963. 1 A list of distinguished subscribers would include such different figures as Sir John Salmond (Glanville Williams, Salmond on Jurisprudence, 11th ed., Sweet & Maxwell, 1957, p. 44); Roscoe Pound (An Introduction to Philosophy of Law, Yale Paperbacks, 1959, esp. pp. 59-64); Benjamin Cardozo (The Nature of the Judicial Process, Yale Paperbacks, 1960, esp.
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Words like 'discretioni' anid 'choice' have differenit senses, and it is conceivable that sonmewho say that judges have discretion mean simply that judges have decisions to make, not already made by others for them, or that judges must reason or make judgments of one sort or another in making these decisions. The professional opinion of which I speak uses 'discretion' in a more characteristic sense to mean that the judge must sometimes reach his decision by means other than the application of standards, that such standards sometimes leave him free to choose.2 I propose to argue that this professional opinion, grounded on the realization that some of the reasons courts give for decisions do not operate like rules, and that some of these decisions are difficult and controversial, is nevertheless an inaccurate and misleading way to describe these facts, and that the layman's opinion, while deceptive insofar as it may suggest that adjudication is simple, is, so far as it goes, closer to the truth. 2. In legal texts, law review articles, and popular presentations of the law, certain propositions like "An offer has been accepted, and can no longer be withdrawn, when an acceptance has been posted by the offeree, " are described as rules of law. Some of these rules are described as statutory, meaning that a competent legislature has enacted them, others as common law rules, meaning that they have been developed by the courts apart from such legislation. Such "textbook" rules are often given by courts as reasons for deciding a case or part of a case one way or another. It is possible, in some cases, to cast the entire argument of the court's opinion in the form of one or more syllogisms, in each of which
Lecture III); Morris R. Cohen (Reason and Law, Collier, 1961, p. 11); Karl Llewellyn (The Common Law Tradition: Deciding Appeals, Little Brown, 1960); and H. L. A. Hart (The Concept of Law, Oxford, 1961, esp. pp. 124-132). I believe Hart's book to be one of the most important and provocative volumes in the literature of legal philosophy. As will appear, I adopt what I believe is a central thesis of that book to suggest that Hart's statements about judicial discretion and choice are less well taken. 2 The writers cited in n. 1 supra and other authorities speaking of judicial discretion do not mean that a judge should ever decide whimsically. They speak of judicial traditions or craft or other restraints which "limit" or "hedge" that discretion. And they speak of the "sound" judge who will exercise his discretion so as best to serve his society. But by speaking of a judge so constrained and so dedicated as nevertheless exercising discretion, or legislating, they suggest not simply that he must make predictions or judgments in applying standards, but that, in the area of discretion, he is not bound to apply particular standards at all.
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THE JOURNAL OF PHILOSOPHY
the miajor premise is such a rule, the minor premise a statemeint of fact either agreed upon by the parties or determined in the proceedings, and the conclusion a statement of the final or an interim decision in the case. Such cases may be called "textbook cases. " Two major arguments, very different one from the other, have been developed to show that the layman's view of law is wrong. The first-the "radical argument"-asserts that the layman would be wrong even if all cases were textbook cases. The second-the "argument from hard cases "-asserts that he is wrong because some cases are not textbook cases. 3. The fact that a judge's opinion is not inconsistent with a textbook rule does not indicate, according to the radical argument, that the judge is in any sense bound by such a rule. A rule is called a rule only because and so long as the courts do follow it. A lower court judge who decides to overrule prior cases, or even to disregard a statute, might be reversed by a higher court or he might not. In any event, if the highest court of jurisdiction chose not to follow a rule the textbook said was established, the disappointed party would have no option save to accept the decision, and the text's author no option save to alter the rule, or at least add a footnote, in the next edition. The radical argument invites the conclusion that antecedent principles never determine the result of a case. Professor H. L. A. Hart in his recent book, The Concept of Law, provides what seems to me a persuasive answer to the radical argument.3 To say that we are bound by rules is not necessarily to say that we shall be punished for deviations or that our deviant acts will have no authority. Being bound by a rule, at least from what Hart calls the "internal" point of view, is a matter of doing what the rule prescribes, offering the rule as a reason (in the sense of a justification) for doing so, and offering it as a reason (in the sense of a standard) for criticizing others who do not. By way of illustrating the fallacy involved in the radical argument, Hart invites us to consider the difference between the game of baseball, in which the players are bound by the umpire's (or other scorer's) decision, no matter how wrong it may be, and the imaginary game of Scorer's Discretion, in which the umpire is free to rule strikes and balls, players out or safe, or runs scored as he wishes. We should be able to tell, after observation, whether a game being played was baseball or Scorer's Discretion, and we might well
3 Hart, op. cit., pp. 138-144.
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sum up the difference between the two games by saying that baseball had a great many rules, including the rule that the decision of the umpire is final, and that Scorer's Discretion had no rules except the rule that the decision of the umpire is final. Of course, Hart continues, we could imagine baseball umpires beginning generally to make rulings as they wished without reference to the rules so that baseball if it survived at all would become Scorer's Discretion. But because that might happen is no reason for saying that it has happened, and unless it does it would be deceptive to describe baseball by saying that the umpires are free to rule as they wish and are not bound by the rules. I have mentioned the radical argument, and outlined Hart's reply, because that reply establishes some important distinctions: Discretion is not implied by the fact that an official's decision may be final or nonappealable, nor by the fact that it may be controversial or wrong. 4. The argument from hard cases begins by tabulating the sorts of cases that are in one way or another unlike textbook cases. (i) In many cases a court is pressed to, and in some cases does, overrule a textbook rule, and substitute a new one. (ii) Even when, as is more often the case, a court is determined to follow a particular textbook rule if it applies, that rule may be so ambiguous that it is not clear whether it applies, and the court cannot decide simply by studying the language in which the rule has been expressed. (iii) Sometimes two textbook rules by their terms apply, and the judges must choose between them. In some such cases the need for choice may be disguised, in that only one rule is mentioned, but research (or imagination) would disclose another rule that the court could have adopted as easily. (iv) Sometimes a court itself will state that no textbook rule applies to the facts. Often the gap may be cured by what is called "expansion" of an existing rule, but sometimes a wholly new rule must be invented. (v) A large, and increasing, number of cases are decided by citing rules so vague that it is often unhelpful even to call them ambiguous: the critical words in such rules are 'reasonable', 'ordinary and necessary', 'material', 'significant', and the like. It does no good to say that questions as to the application of these terms are questions of fact, because disputes will remain, and decisions be required, even after agreement on what has happened. It will not do, the argument continues, to say that the judge decides these hard cases by Delphic derivation of the "purpose" of a rule, for the purpose of a rule is usually deus ex machina. Nor will it do to say that such hard cases are decided in accordance
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with meta-rules which reveal how textbook rules are to be overruled, interpreted, expanded, contracted, or invented, or standards like "material" applied. The explanations courts give in hard cases typically take the form of appeals not to rules but to policy goals or the requirements of justice, and lawyers and judges will often disagree about the propriety of such an appeal in a particular case. At best, characterization of such explanations as meta-rules only postpones the problem one step: we would need meta-meta-rules to select among meta-rules. At some point the regress must be broken by the admission that at that point a judge does not apply rules, but rather chooses. The most that can be said is that attention to the explanations judges give at that point may reveal patterns of Judicial behavior, self-adopted guides which will aid a careful observer in predicting decisions, in making them more "reckonable" or perhaps less "unreckonable."' 4 The argument from hard cases thus proceeds from a survey of what we might call (with some license) the "logical" behavior of the types of explanation that judges give for their decisions. The conclusion, that judges have discretion, is drawn from a comparison of the role of rules in law as it is with what that role would be if all cases were textbook cases. The argument can be summarized in terms of Hart's games: The rules or other reasons that judges offer do not always specify the correct legal result, as the rules of baseball specify the correct baseball result, of agreedupon facts. To the extent to which law is in this way less like baseball, it is more like Scorer 's Discretion, and law thus lies somewhere between the two games, involving elements of each. 5. The standards of law do indeed differ in logical behavior from the standards of baseball, but not in a way that makes law more like Scorer's Discretion, and the ascription of discretion to judges is a poor way to describe the differences. It will be easier, I think, to see the error involved if we consider two more imaginary games. In the first-"Limited Scorer's Discretion"-the rules of baseball obtain in full, except that the umpire retains discretion to call
4 This is the burden of Llewellyn, op. cit. It is interesting to compare this book with Hart's. Hart is concerned to show the way in which judicial behavior is governed by standards, but abandons his inquiry at the point where such behavior is no longer governed by rules. Llewellyn begins where Hart stops, but gropes rather for techniques of predicting what judges will do. If one combined Hart's concerns with Llewellyn's research, the result would be a discussion not of guides to reckonability, but of legal standards other than rules.
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any pitch not hit by the batter either a strike or a ball, as he wishes, without regard to whether or not the ball is in the strike zone. The umpire's discretion is limited, in that it can be exercised only in certain events, and can have only certain consequences on the score, depending on the circumstances of the game. The umpire might adopt particular goals for himself, such as making himself a hero to the crowd, which would guide him in his decisions and upon which the players might begin to rely in predicting these decisions. But the umpire's freedom to set and apply such personal goals would not further restrict his limited discretion, but rather evidence it. The second game-"Policies"-is more complicated. All the rules of baseball are initially in force, but the umpires (called "iudexes" in Policies) are required in each case to consider whether alteration of the pertinent rule would bring the game closer to the realization of certain fixed policies, or make it more consistent with certain fixed principles, and, if so, to make the necessary alteration before deciding the play. Such policies and principles are set out, with assignments of relative importance, in an official manual. The policies include reducing the number of injuries to players, allowing individual players of greater natural strength and physical coordination to become stars and thus public idols, encouraging managers to exercise strategy in guiding their teams, and making the game more exciting to the spectators; and the principles include one that unsportsmanlike conduct should be penalized and another that the rules should not discriminate in favor either of home teams or visiting teams. The iudex is required, after each decision made on the basis of an altered rule, to issue a short written statement justifying that alteration. Such statements are published and made available to all the iudexes and to the interested public, and the altered rule becomes binding until further changed in like manner. The iudex would have a difficult job. The policies of managerial strategy and crowd interest would ordinarily act as a brake on changing the rules, but the iudex could not refuse every suggested change on that basis. Some policies would be easier to apply than others: it would be easier to discover which sort of acts led to injuries than which players had better coordination or which situations a crowd would find exciting. Conflicts in policies or principles would present problems. When the manual indicated that one of the two competing policies was more important than the other, a decision might be justified that advanced the mare important, but if failure to apply the less important policies would
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seriously undermine it, this might be a good reason for preferring it to the more important. The policy of reducing injuries might require that rules be framed so that players would be deterred from dangerous moves, such as running too close to the fence. The iudex would find it difficult, however, to justify picking any specific distance from the fence as a limit dictated by the policies-it would all depend on the speed with which the player was running, the type of play involved, and so forth. The iudex might develop a rule that a batter is safe, even though the ball is caught, if the fielder comes "unreasonably" close to the fence to make the play. How close is too close would depend on the circumstances of the particular play, and on the pertinence of such circumstances to other policies besides that of reducing injuries. The principle of unsportsmanlike conduct might be thought to present special difficulties, since questions of morals seem involved here, and such questions are believed to be less "objective" than questions of injury prevention. Indeed, if there were not broad agreement within the community of participants and spectators as to what sort of conduct is unsportsmanlike, the iudex would find this principle comparatively useless in making his decisions. It would be a breach of his role to make decisions on the basis of his personal standards or the standards of one interested player or team, just as it would be to make decision on the basis of a personal or debatable notion of what sorts of anatomical events constitute an "Cinjury." But if there is such broad agreement, these standards may be used even though the "validity" of such standards might not be demonstrable in the same manner as judgments about injuryproducing conduct and even though the morals of the mob are not necessarily the only, or the best, morals. It might be, of course, that the iudex would be correct in a particular decision as to unsportsmanlike conduct, even though his decision was initially unpopular, if he succeeded in showing that, because of motives or other facts or consequences that the crowd had not adequately considered, the conduct in question was contrary to broadly accepted requirements of fair play. 6. We might say that Limited Scorer's Discretion lies between baseball and full Scorer's Discretion, that it contains elements of both. But would it not be misleading to say the same of Policies, to say, that is, that Limited Scorer's Discretion and Policies are alike in that in each the decision maker has limited discretion? Is it not the pertinent distinction between these two games that the iudex in Policies has no discretion?
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When we speak of someone's discretion in making decisions, we miean that the standards, if any, of the activity in question grant him the right to make any decision he wishes, and deny any other participant the right to claim a particular decision from him. We might mean by "limited discretion" that the standards grant the actor complete choice in some phase of the activity, as the bridge player has complete freedom to arrange the cards in his hand. We might mean instead that the standards grant him a certain freedom within limits, as the bridge player must follow suit, but is free to play any card of that suit he may have. Even when an act is free in principle, it may not be permitted in special circumstances or when the actor's motives are improper (this is what we mean when we say such discretion must not be abused). If we should ask for a justification of a decision in terms of particular standards, we should accept as sufficient a showing that the act lies in such an area of discretion. The standards of Policies do not grant the iudex a choice, even a choice limited in any of these senses. On every play the participants are entitled to the "correct" result; on no play is the iudex entitled to decide as he wishes. At no point and in no sense would it be a justification of a iudex's decision to say that the decision was within his discretion. One who insists that the iudex has discretion must be assuming either that the principles and policies of the manual are not standards at all, which is wrong, or that such standards are somehow defective, in that they allow discretion to seep in unwittingly through, as it were, a leak. But what could it mean to say that standards are defective? We might look back again, for an answer, to standards that are not alleged to leak. The rules of baseball, like the rules of most other games, specify precisely which events are to have which consequences, and the events designated in the rules are the only events having any significance whatsoever. Officials applying such rules therefore concern themselves almost exclusively with making authoritative reports, rather than characterizations, of what has happened. Infrequent disputes about the rules themselves are settled by reference to aii authoritative rule book. An umpire can refuse to apply an alleged rule in a situation it embraces only on the basis that the rule is invalid; if he finds it invalid he cannot then apply it a few plays later. Rules do not have the dimension of weight. In the event that an inconsistency were discovered in the rules, the conflict could not be resolved by applying the "more irnportant" rule. Such a conflict, or a material ambiguity, would be regarded as intolerable, as an emergenicy calling for resolution by stipulation, or, in org(anized gaines like baseball, by decision
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of associations or committees with explicit rule-making powers. Not all games work like this-children's games that "are made up as they go along" are different-but this "logical" behavior is typical of the rules of most games. The principles and policies given to the iudex work differently. They do not specify precisely the events that might invoke them, and any event that occurs in the game may have pertinence in their light. The iudex typically concerns himself with characterizations rather than mere reports of what has happened. Such standards do have relative weight, and this dimension will often be the reason for applying or refusing to apply them. A policy need not be called invalid in order to be disregarded, and, once disregarded, may form the sole ground of a rule change in the very next play. Situations in which antagonistic policies or principles are at stake do not evidence inconsistencies, but are rather contemplated by the arrangement. They do not call for emergency resolution outside the confines of the game: their resolution is part of the game. There are, then, differences in the sorts of reasoning appropriate to decision in terms of rules and decision in terms of other standards.5 These differences are not merely differences in the degree to which such other standards fail to match the model of rules, for they have models of their own. If there were not, within the community, general agreement on what constitutes good as distinguished from bad reasoning in terms of such standards, the iudex, if not altogether incapacitated, would have to rely on his own personal views of good argument, whatever that might mean. In that event, participants would no longer be able to make claims to particular decisions, and the game would become Scorer's Discretion. It does not follow, since there are such general standards, that the iudex is relying on such personal views when his decision is difficult or debatable. Then, as in every case, he intends his reasoning to be based on public, not private, standards of good argument, and the community receives and criticizes his decision on that basis. The claim that policies and principles are "loose"
5 The "logical" behaviors of principles and policies also differ to some extent from each other. Compare the kinds of reasoning appropriate to a policy of eliminating unsportsmanlike conduct with those appropriate to a principle that such conduct is wrong and should be penalized. And there are other kinds of standards at work in law, if not in Policies, which arguably have still different " logical " behaviors: for example, " maxims " that are appealed to "all else being equal.'' Details of these distinctions might be interesting, even profitable, although it would be silly to argue about classification for its own sake.
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standards might mean merely that decisions thereunder are often controversial. That fact is consistent with the equally important fact that the iudex, no less than the umpire in baseball, is charged with finding, and the participants are entitled to have, the decision in every case that constitutes the best resolution of the stipulated principles and policies. 7. It might be objected that, if the iudex has no discretion, it must follow that business executives and generals have no discretion either. Each of these officials is under an obligation to make every decision so as to further a specific policy: maximizing profits in one case, winning a war in the other. Yet it seems strange to say that they never have discretion; we might end by saying that no one ever had discretion. Perhaps, after all, discretion means merely that the actor has a decision to make, a decision not already made by another, and has nothing to do with the presence or absence of standards against which the decision must be made. This objection points up the importance of distinguishing between standards (which constitute arrangements such as games and contests and which entitle the participants to make claims as of right to certain privileges and awards and to official decisions sustaining such claims) and binding policies that are not standards. The general in war owes a duty to his nation to make decisions that he believes most advance the victory. Yet neither the nation nor any of his men nor the enemy can be said to be entitled as of right to any particular decision. The policy of victory does not also act as a standard for determining claims, rights, or entitlements. The stipulated standards of Policies do have this function. Compare the position of a manager deciding which relief pitcher to call with that of the manager awarding a prize, donated by the public, to the "most valuable player" on the team. A good manager will approach each of these decisions on the basis that only one decision is the right one (although there are important differences in the sort of justification of his decision and the sort of resolution of "ties" that would be acceptable). Yet it would be correct to say that he has discretion in the first case, and not in the second. To regard the iudex as having discretion, because the businessman or general has discretion, would be to miss the very essence of the game, to miss the point that it is an arrangement of entitlements. This imaginary gaine is not, of course, the only example of such an arrangeinenlt operating under standards other than rules: other examples include certain moral arguments and certain sorts
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of contests. It would be strange to say that a person who seeks to decide a troublesome question of conduct in terms of the moral standards of his community or who acts on a committee named to award a prize for the best paper submitted on a given legal subject had discretion. no matter how difficult or controversial his decision may be. 8. My purpose thus far has been to challenge the unarticulated premise of the argument from hard cases: the assumption that the only true standards are rules and that, if the explanations given by judges in hard cases are to be regarded as standards at all, they must be regarded as rules manques, deteriorated versions which cannot be applied without a measure of discretion. I suggest, although I cannot here demonstrate, that hard eases are decided in law, as in Policies, by the application of standards other than rules.6 I am not suggesting of course, that law and Policies are isomorphic, that every significant institutional or formal feature of law finds a counterpart in the imaginary game. The most important difference, for the present purpose, is that the judge has no authoritative manual exhaustively listing the standards against which he must make his decision. If the judge were free to adopt his personal preferences as legal standards, then indeed his decisions would be chosen. But he is not. He is subject to the
6 I am speaking throughout of cases in which the judge is said to "Imake law " by the exercise of his discretion. There are cases in law, as in baseball, where the officials are explicitly granted discretion-the judge, for example, in fixing sentences and in certain other remedial or procedural matters, and the umpire in calling official tilmles out and in certain disciplinary matters. This discretion is exercised "within limits" and "cannot be abused," but we would not say that the participants were entitled to any particular decision on such a question. I have ignored throughout the question of whether the judge, the jury, or the iudex has discretion in determining "what happened," not because I want to say they do, but because there is no space in which to consider the question. Similarly, I wish to exclude the role of the Supreme Court in deciding constitutional cases from the scope of this essay. There is distinguished opinion that this judicial function is unique, and consideration of the alleged differences would not be maniageable here. 7 In what follows I am assuming onie similarity: that law, like games anid contests, is an arrangeiiment of entitlemenits, and I am attempting to offer a picture of judicial practice consistent with that assumiiption. I do not believe that academic lawyers who speak of judicial discretion intend to deny that law is such anl arrangemenit (except possibly as indicated in paragraph 9 below), although, of course, discretioni in law as in games means pro tanto an absenice of standards and thus of enititlemenits. The ineonsistency arises because they have been unvwillinig to recognize anythinig but the rules produced by legislatures and courts as standards, and it has led to the problems and telnsions miienitionedin paragraph 10 below.
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oveirriidinig priniciple that good reasons for juldicial decisioi must be pu(blic stanidards rather than private prejudice. And he is subject to principles stipulating how such standards shall be established and what judicial use shall be made of them.8 can distinguish three possible sources of eligible standards. WVe First, there are standards, like "No man shall profit by his own wrong" and "Infants are the wards of the law," which are like textbook rules in that they have already been used in a variety of cases as good reasons for decision, and a judge will determine the weight and scope of such standards by awvarenessof these cases. Such standards are not rules-some men profit by their wrongs, even in court, and infants sometimes lose lawsuits-but prior cases may be precedent for their use nevertheless. Any such standard may gain or lose weight, even disappear, as generations of judges determine that fresh standards either reinforce it or must be preferred to it. Second, certain institutions of any community are competent to declare standards on its behalf. For us, today, such institutions include legislatures, executive officers, and administrative agencies, and the judiciary itself, in the sense that a "new" standard may be shown to represent a proper summary of the resolution of other standards achieved in other cases. These two sources, one of " old " and the other of " new" standards, will be called upon by the judge most often. But he must sometimes recognize a third source: judgments of the community at large or some identifiable segment thereof. The court refers to such judgments when it rejects a particular result or rule as unjust, as well as when it more explicitly invokes the ideals of the society.9 To acknowledge this source is not to say that all legal standards must be popular, for it is only one source; nor to say that widespread community opinion must become law, for other stand8 There is, of course, an important interaction between judicial recognition of policies and principles and the institutional or public sources of such standards. Judicial recognition will usually both strengthen and make more articulate the standards recognized, although it may have the opposite effect when it wrongly attempts to establish as community principle what is r eally debatable doctrine. 9 This discussion treads on the famous conitroversy (or controversies) about the relation of law and morals. On some occasions, in some kinds of cases, moral principles accepted as standards within the community will figure as good reasons for a legal decision, just as, on other occasions, in other kinds of cases, will standards otherwise established. In this sense, such principles are part of the legal system, if it is helpful to talk about law as a system at all, and the flat statement that law an(d morals are separate systems is misleading.
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ards may conflict which must prevail. There are two crucial questions that any society must face as to this source of law: How great a consensus is required before partisan position becomes community judgment? Shall any segment of the community be competent, on the basis of special interest, special ability, or special privilege, to form standards for the whole? These questions, and similar questions which can be raised about the "textbook" and institutional sources of rules, are questions of normative jurisprudence. Some of these questions will, at any rate for a time, be settled within the community and thus for the judge, as the general principle of legislative supremacy within constitutional limits and the principle that no social class is empowered to declare standards binding on all are settled for us now. Other such questions may be open, as is today, perhaps, the question of whether the ethics of moral leaders shall be taken as those of the community at large, and such questions will be, or should be, the subject of continuing debate. From time to time a particular case may force a judge to engage in such a debate, to decide, as it were, a jurisprudential issue.10 But a judge who believes himself faced with such an issue is no more entitled to choose an answer on private grounds here than at any earlier or later point in his reasoning; he is expected here as there to justify his decision in terms of what he takes to be the most fundamental community conceptions of social or political justice. Even here, in other words, he is expected to argue to public, rather than to rest on private, standards. Even here, if the decision in the case does indeed swing on the jurisprudential issue, some litigant will be entitled to have, and so the judge must attempt to reach, the ''correct " result. 9. Some will say: Perhaps the theory is wrong which holds that judges exercise discretion whenever their decisions are not determined by rules. But surely there are cases in which the judge must choose a solution. Sometimes standards admittedly relevant are so finely balanced, sometimes whether a particular policy fairly represents a community judgment is so controversial, that it is hopeless to expect the judge to do anything but choose. Judicial discretion might be rarer than some enthusiasts have claimed; but is it not equally silly to contend that discretion has no place in the legal universe ? This is the argument from very hard cases. Taken literally,
10 The private law field called " conflict of laws " is one in which judges are now being forced to review jurisprudential questions. See cases and articles cited in Pearson v. Northeast Airlines, Inc., 309 F.2d 553 (1962).
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it must amount to this: At some point, as a decision becomes more difficult or controversial, the judge's role and the expectations of the community change, so that the judge is then expected to decide on the basis of his personal preference, and the parties before him are no longer entitled to any particular result. On this view law ultimately is like Limited Scorer's Discretion; there is an area in which the judge is free to make either of two decisions as he wishes -the area not of strikes and balls, but of very hard cases. A legal arrangement could, I suppose, include an area of discretion after some point along the spectrum of difficulty."1 But the arrangement we have includes no such feature. Judges often acknowledge decisions to be hard, and sometimes, though usually extracurricularly, admit that some decisions are based on " guesses " or "hunches." I understand such a judge to mean that at times he believes one decision to be the right decision, but has difficulty in stating his reasons for so believing and has no great confidence that such reasons would convince others. This does not mean that he has abandoned the attempt to reach the right decision and is now simply reporting his personal preference, a judicial thumbs up or down.12 And it surely does not mean that the parties have changed their posture from litigant to supplicant, like prisoners after conviction and waiting sentence. The judicial predicament arises precisely because the judge may not switch roles when his own becomes too difficult, but must press on even though his hypotheses becomes more dubious and his speculations more tenuous than he would like. I can more easily understand the argument from very hard cases by taking its claims to be figurative rather than literal, speaking of choice to emphasize that the judge in many cases will be unable to justify his decision in ways that will convince those initially opposed and that in these cases it will be in this sense as if the judge had simply chosen. The metaphor may be helpful, but it must not lead us to suppose that the change of roles it suggests actually takes place. In very hard cases, as in very easy ones, "judicial discretion" misdescribes judicial obligation.
11It is not clear how those who would recommend this technique would expect the judge to behave on the far side of the point. Is he merely to report his prejudice, so that the world will be warned that he has it, or is he to argue for it? If the latter, what sort of argument? Indeed, if argument is still demanded, has the judge's role really changed? 12 It is important to distinguish cases in which the judge reports his own views on the assumption that these are also the views of the entire community of which he is a member, there being, say, no reason at all to suspect otherwise, from the alleged cases in which he reports and acts on such views without regard to whether they are so representative.
638
10. The misdescription is not harmnlesserror. It has generated or exaggerated-problems like those of "reconciling" judicial legislationi with democracy, with the morality of punishment, with the premises of individual responsibility, and with our prejudice against ex post facto law. It has distorted the present and prominent controversy as to whether the principles our courts use to decide cases must be "neutral," a controversy which now ineludes "A Plea for the Unprincipled Decision" by a former law school dean and chief judge of a United States Court of Appeals.-3 Moreover, and worse, it inhibits thinking about jurisprudential questions of cardinal interest and importance, the "open questions" about the formation, recognition, and use of public standards to which I have referred. At best it turns discussion of these issues aside into description of what judges "do," missing the nierve of the actual problems that face both the judge and the community. At worst, it forecloses such discussion by posing as an answer. Finally, it is responsible for the tension we began by noting: the tension between public expectation and academic denial. The layman's conception of law depends upon the principle that the judge is never entitled to offer private prejudice rather than public standards as justification. If the profession and the public should be led on the one hand not to attempt, and on the other not to expect, adherence to this principle in difficult cases, that conception would be defeated. The misdescription in question is dangerous because it has the power to correct itself, by changing the thing described.
RONALD DWORKIN YALE LAW SCHOOL
DWORKIN ON JUDICIAL DISCRETION
Professor Dworkin's paper contains some good things, but I shall focus on what nmostneeds repair. I. There are two sources of serious confusion: A. Dworkin tangles two questions (understanding the restrictions in his note 6): (1) Are judges authorized ever to decide by
13 Clark, "A Plea for the Unprincipled Decision," 49 Virginia Law Review 660 (1963). *Abstract of a paper to be presented in a symposium on "Philosophy of Law" at the sixtieth annual meeting of the American Philosophical Association, Eastern Division, December 28, 1963, commenting on Ronald Dworkin, "Judicial Discretion," this JOURNAL, 60, 21 (Oct. 10, 1963): 623-638.

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