Deconstructing Dworkin's 'One-Right-Answer' Thesis

Dworkin argues that all hard questions of law admit of one correct answer. This is a necessary supposition for the theory of law as integrity, and one which he aims to prove in A Matter of Principle.[1] Dworkin advances a logical argument that bivalent propositions of law have, necessarily, one right answer. This logical argument is not the whole of the one-right-answer thesis, but it is an important preliminary step. Dworkin attempts to bind positivism by limiting the definition of when a proposition of law is negated. Elaboration on this logical proof is key to the understanding of both the right-answer-thesis, and its critique. This article only aims to critique Dworkin’s proof against positivism. Dworkin does, in fact, anticipate the critique here laid out, but he does not appreciate that it does not have the effect on positivism he argued it does. He fails in showing that there is a necessarily right answer to every difficult legal question, but simply that the penumbra of law is further back than Hart anticipated. Further, a very brief sketch of a defence of the no-right-answer thesis using Finnis’ distinction between intra-systemic obligation and legal-moral obligation is provided. It is argued that a judge’s role in reaching an answer is not only to consider law in the instant case, but also the general principles of law in the broad sense, and considerations of morality as to when a law should apply.

The No-Right-Answer Thesis

Hart argues that law has an open texture.[2] This means that at the penumbra of the law, where it is unclear whether or not a validly passed law will apply, the judge has ‘discretion’ as to the outcome of the case.

In these cases it is clear that the rule-making authority must exercise a discretion and there is no possibility of treating the question raised by the various cases as if there were one uniquely correct answer to be found, as distinct from an answer which is a reasonable compromise between many conflicting interests.[3]

Dworkin argues that ‘discretion’ here means strong discretion, where the decision-maker is unbound by standards within the authority being discussed.[4] Dworkin argues that this strong discretion is mistaken, that in almost every case there is a right-answer which expresses to the rights and duties of the parties, contrary to the concept that there is an area of legal indeterminacy in which there is no truly ‘right’ answer for the judge.[5]

Dworkin’s Logical Thesis

Certain concepts are bivalent. If they apply the judge decides the case one way; if they do not apply the judge will decide the case the other way. For example, conduct C constitutes crime X, or, conduct C does not constitute crime X. The proposition that C constitutes X is (p), and the negation of that proposition (C does not constitute X) is (~p).[6]

Let (~p) be defined as the logical negation of (p), so that if (p) is false (~p) is true, and if (~p) is false (p) is true.[7]

This is a description of legal duties, legal duties being the outcomes of cases. Dworkin argues that concepts describe the occasions of duties, but the concepts do not need to have the same structure as duties.[8] For example, a contract can conceptually be valid, void, or inchoate, but the duty is bivalent – either to fulfil the contract or not. Of course, the remedy to fulfil that duty can be different, but the duty itself remains the same.

What is the negation of a proposition of law (p)? Simply taken, Dworkin says that (non-p), or, where the proposition of law (p) is not the case, is equivalent to (~p). This, to be clear, is true. However, Dworkin is mistaken in arguing that the positivist position is thus:

The second version, on the other hand, does not deny that (non-p) is identical to (~p); instead it holds that in some cases neither (p) nor (~p) is true, that is, that in some cases bivalence does not hold.[9]

There is only one way that a bivalent concept can be negated, however, there are two reasons that proposition of law can be negated. First, the law can specifically say that (p) is not true. In Dworkin’s logical framework, L is the set of social facts (forming the rule of recognition) that a rule must have to be a valid law. A valid proposition (p) is valid because it has passed L, or L(p).

We may therefore state the structure of positivism, as a type of legal theory, this way. If ‘p’ represents a proposition of law, and ‘L(p)’ expresses the fact that someone or some group has acted in a way that makes (p) true, then positivism holds that (p) cannot be true unless L(p) is true.[10]

So, the first reason for the negation of (p) to be valid is that (~p) fulfils the social facts L. Or L(~p) is true, therefore (~p) is valid. However, there is a second reason by which the negation of the proposition can be true, that nothing has passed through the relevant social facts at all. Or ~L(p) is true, therefore (~p) is valid. In plain language, the law can say that C does not constitute X, L(~p), or the law can say nothing about C constituting X, ~L(p). Both can lead to the validity of the negated statement (~p). The key here is (non-p), which is not defined by virtue of the validity of the statement through social facts, but instead is the mere nullity of the legal proposition (p), this is where Dworkin obfuscates the no-right-answer position.

Dworkin argues that the positivist standpoint says that (~p) cannot be true, in the sense of legally valid, unless L(~p) is true.[11] Or, for the statement ‘C does not constitute X’ to be a valid legal proposition, the relevant social facts forming the rule of recognition must be attached to the statement ‘C does not constitute X’. However, this is not so. The statement of (~p) can also be true if the law has never been passed, ~L(p), both forms are equally negatory of L(p). However, ~L(p) is crucially different. Dworkin follows from the flawed premise that the positivist standpoint says (~p) cannot be valid unless L(~p) is true - L(p) must be true or false. The social facts of a rule either are or are not present. When L(p) is false, the social facts are not present, so (~p) is true. So, if L(p) is false, then its negation ~L(p) is true. Because L(p) is not true, (~p) is true.[12] But if (~p) cannot be true unless L(~p) is also true, it leads to the statement that ~L(p) is the same as L(~p).[13] Or, the statement that ‘the law says that C does not constitute X’ and ‘the laws say nothing about C constituting X’ are equivalent.[14] Plainly they are not, the law saying nothing about C constituting X is a negative statement, the law saying that C does not constitute X is a positive statement. In an endnote Dworkin argues that positivism, in this form, supposes that whatever is not prohibited is permitted.[15] This is clearly a reductionist view of Hart’s positivist standpoint.

However, when it is realised that it is not necessarily true that (~p) is true only when L(~p) is true, the problem falls away – as Dworkin notes. Both (~p) and (p) can be true when ~L(p) is true. L(~p) is not necessarily true when (~p) is true, similarly (~p) is not necessarily true when ~L(p) is true. Zhao advances a stronger argument. The argument interprets Dworkin’s meaning as saying that where ~L(p) = L(~p) then (~p) or (p) is not true, so there remains only one answer.[16] The issue herein lies in the first statement that ~L(p) = L(~p), it plainly does not, both can lead to the same result, but they do not conceptually mean the same thing, nor do they have to lead to the same result.

Have we confused concepts and duties? Is the idea that (~p) can mean either L(~p) or ~L(p) simply saying that a duty must be identical to the concept, which Dworkin has disavowed? It is argued that this is not equivalent. A conceptual tripartite split (as in our contract example) is distinct from this example; an inchoate contract, for example, is not the same as saying that the law has not commented on the situation. Instead, an inchoate contract leads to a definitive duty one way or the other, as Dworkin himself correctly argues. However, ~L(p) does not necessarily lead one way or the other. To determine the borderline of the validity of (p) and the validity of (~p) we must return to Hart’s concept of the open texture.

The Open Texture at the Penumbra

Each law has a central case.[17] As you move away from this central case, the focal conception of the law in question no longer directly comments on it. Let us flesh out our example of C constituting X. The law says that parking a vehicle on the pavement (C) constitutes the crime of aberrant parking (X). The central case of this law is a car, for example, being parked across the pavement. This ‘focal’ conception is moved away from when we consider cases where the terminology of the law is unclear, and the central case does not comment on it. Take a tricycle parked on the pavement. Does that constitute aberrant parking? Plainly the deviance of this case is in the definition of ‘vehicle’, a tricycle is not a central case of a vehicle. The central case does not directly comment on the tricycle case. A key caveat to this concept is that the law itself could conceivably cover that case, but the case is not the central example of such a law, and the central example of the law does not explicitly comment on that case.

By using the idea of ‘focal’ conceptions, and ‘deviant’ examples we import a large corpus of work. Finnis discusses the concept of deviant legal systems, and laws, and whether they are truly ‘law’. First, we must interrogate whether this analogy is valid. For one, Finnis is discussing the legal and moral obligation of a deviant law, we are discussing whether deviant examples of laws have a necessarily ‘right’ answer through interpretation of the principle of the focal conception. However, there is a strong link between the concept of political obligation and legal right answers, to explicate this link we must delve into the analogy. To avoid confusion the analogies will first be drawn, and then separate terminology used for our analogous types of obligation. There are three types of obligation in Finnis’ concept: (1) intra-systemic obligation, which we will re-term ‘interpretive-gesetz obligation’; (2) legal-moral obligation, which we will re-term ‘interpretive-recht obligation’; (3) moral obligation, which we will re-term ‘discretionary-moral obligation’. This section will first explain Finnis’ conception of obligation, and second analogise it with our reformed terminology.

(1) Interpretive-Gesetz Obligation: Finnis describes the first two types of obligation as legal. For Finnis, intra-systemic obligation is the obligation to perform conduct required by law.[18] What does this mean for a legal-right answer in the sense Dworkin means? Our analogous term is the ‘interpretive-gesetz obligation’, we have already established that the fact pattern of the central case does not comment on the deviant cases in question. Hence the interpretive-gesetz obligation is those legal principles which underlie and justify that central case, and their analogy with the deviant case. The term gesetz means law in the small sense of a statute or rule. So, for our example this obligation derives from the closeness of the analogy with the central case. This, plainly, is a key element to Dworkin’s interpretive process. To use the literary analogy, it is the themes which underlie the sections prior to the new chapter-writers section.

(2) Interpretive-Recht Obligation: The second type of legal obligation Finnis discusses is the legal-moral obligation. This is the obligation which derives from the moral duty not to bring a system which gives rise to the common good, into disrepute. For the right answer to a deviant case, our analogy is the applications of the general principles of the entire legal system. The term recht means law in the broad sense, not coincidentally the word also means ‘right’ and ‘justice’. Hence the interpretive-recht obligation is that obligation which derives from the underlying principle of the legal system, and the balance that the legal system as a whole strikes between different values. Its application can also be described as the need to avoid bringing the central principles of the legal system into disrepute by extending laws to deviant cases which are contrary to those principles. Dworkin, too, considers this element.

(3) Discretionary-Moral Obligation: The third type of obligation Finnis describes is not legal, but purely moral. Thomas Aquinas describes that the intra-systemic and legal-moral obligation can cease to apply when a law is deviant, or unjust enough, in the court of conscience.[19] The discretionary-moral obligation is the sum of moral considerations which favour, or oppose, application of the central case of law to the deviant case. This is a discretionary practice, the balance of moral considerations involved in this stage, and the borderline of when discretionary-moral obligation outweighs both interpretive stages, is fundamentally discretionary.

A Judge’s Court of Conscience

How do these obligations for considerations and reasoning apply in a deviant case? For a deviant case, there will be countervailing moral principles to the application of the central case of the law to that situation. Take the tricycle example, the interpretive-gesetz obligation may well be that the law values safe parking, and respect for rights of way. The interpretive-recht obligation may well consider the proportionality of the response, and the underlying justice of the situation. The discretionary-moral obligation involves the moral principles which oppose application to the central case. A tricycle may well be driven by a child and moral principles may say that activity, freedom and friendship are morally important values which are unduly interfered with by application of the law to this case.

The interpretive-gesetz, and interpretive-recht obligations are likely, naturally, to pull strongly in the direction of one answer. But this does not mean it is a ‘right’ answer per se, since the balance between these obligations, and their balance with countervailing discretionary-moral obligations.

This is not necessarily inconsistent with Hart’s concept, or positivism more generally. Judges’ reasoning, according to Raz, ought to have a large element of moral reasoning.[20] Even more bravely, he claims that legal reasoning is a form of moral reasoning. Raz himself reasons that such application of moral reasoning is a ‘change’ in the law. However, this would only be true if the law had commented on the situation, L(p) or L(~p), but this is not the case. The application of moral reasoning is important when the law, in its central case, does not comment on deviant (~L(p), or ~L(~p)) cases. It is not a change in the law, but merely application of the three obligations involved in legal reasoning on a situation which the law does not comment on. This area of cases is Hart’s penumbra, and this is where the law shows its open texture.[21]

Next, we must discuss how the obligations apply. We have discussed that judges are, inevitably, more predisposed to following the interpretive obligations, but this does not preclude explanation of the weight of the obligations. The interpretive-gesetz obligation is invariable in weight, theoretically it admits of one correct answer following Dworkin’s interpretive process. The interpretive-recht obligation is variable, and it depends on the balance of the law and the legal system principles; this also varies with the importance, and how ‘in vogue’ the central principle is. Discretionary-moral obligation is similarly variable, and whilst less explicitly legal still ought to form an important part of reasoning according to law.

Legal reasoning is an instance of moral reasoning. Legal doctrines are justified only if they are morally justified, and they should be followed only if it is morally right to follow them.[22]

Further, such moral reasoning remains a key element of legal reasoning, or as Raz terms it, reasoning according to law (though he is not discussing this specific question, it too is analogous).[23] Hence questions of law are subject to much more discretion that Dworkin makes out. The penumbra of a difficult case lies where the considerations of the interpretive-recht obligation, and discretionary-moral obligations, are sufficiently weighty that the invariable weight of the interpretive-gesetz answer does not apply. Hence, the penumbra Hart describes lies here. Whilst the discretion is not the ‘strong’ discretion that Dworkin lays out, there remains a factor of the principle inherent in the authority, it is nevertheless discretionary. It lies somewhere in between the weak sense of merely making a decision,[24] and the strong sense of being unbound by authority.

Confusing Obligation and Correctness?

The central objection is that Finnis’ conception is not truly analogous. What Finnis is considering is the obligation to follow law, and the obligation to follow unjust law for a citizen. A further objection is that the judge as an official ought only to consider the interpretive-gesetz validity, for which there is always a correct answer.

In response to the first, working from a presumption that it is the role of a judge to apply the correct law as much as possible this objection begins to fade. The obligation on the judge is to apply the law. Where there is a gap in the law – namely, where the central case does not cover a deviant case – the role of the judge is to follow the obligations on either side to apply or not apply the particular law. Plainly, there is analogy between following the law, which Finnis’ is considering, and applying the law – which we are. However, drawing this analogy leads us to the second objection.

Is it not in the nature of a judge to have concern only for intra-systemic legal correctness, for which there is one correct answer? The response to this objection lies in the notion of central and deviant cases. An intra-systemic obligation derives from the existence of the law, but we have shifted Finnis’ original obligation’s meaning slightly. Instead, the interpretive-gesetz obligation, since the deviant case is not actually covered by the law, is the application of the underlying principle in Dworkin’s sense. It is not truly intra-systemic in terms of positive law of the central case, but legal principle. However, legal-moral principle is also, in our analogy, shifted in meaning from strictly the obligation to follow the law as law so as not to undermine the legal system, to meaning the obligation to follow the underlying principles of the legal system. Such principles can be perfectly contradictory of the principles underlying the law in question. The interpretive-gesetz obligation also contains consideration of those principles, but it only contains it as it regards that specific law, not law in general. The moral consideration is the obligation of the judge in reasoning with moral principles, as Raz argues.[25] Hence, we might say that the role of the judge is not only to consider the law in this instance, but the law generally, and morality generally in order to draw the borderline of when a law should and should not apply. Yet such balancing of considerations is, fundamentally, a discretionary task without a truly, legally, ‘right’ answer.

Conclusion

The logical proof Dworkin advances does not defeat positivism for the reason that he believes it does. There is no necessity for ~L(p) to always equate with (~p), and L(~p) is not the only reason that (~p) can be true. Dworkin appreciates most of this critique within A Matter of Principle but does not appreciate the significance of the idea of ‘central cases’ and penumbral cases, and the duties, obligations, and principles that determine the outcome of the cases. This essay has attempted to elucidate the logic that Dworkin uses, and to propose an alternative discussion on the reasoning that leads to there being no truly ‘right’ answer in a hard case.

 

 

[1] Ronald Dworkin, A Matter of Principle (HUP 1985).

[2] HLA Hart, The Concept of Law (3rd edn, OUP 2012) 128.

[3] ibid 132.

[4] Ronald Dworkin, Taking Rights Seriously (Bloomsbury 2013) 50.

[5] ibid 54.

[6] Dworkin, A Matter of Principle (n 1) 122.

[7] ibid 121.

[8] ibid 124.

[9] ibid 122.

[10] ibid 131.

[11] ibid.

[12] ibid 121.

[13] ibid 133.

[14] ibid 121.

[15] ibid 405–406, note 4.

[16] Zhao Yingnan, ‘Do We Really Know Dworkin’s “One-Right-Answer” Thesis?’ (2018) 20 <https://ssrn.com/abstract=3144793>.

[17] HLA Hart, ‘Discretion’ (2013) 127(2) Harvard Law Review 652, 653.

[18] John Finnis, ‘Law as Fact and as Reason for Action: A Response to Robert Alexy on Law’s “Ideal Dimension”’ (2014) 59 The American Journal of Jurisprudence 85.

[19] Thomas Aquinas, Summa Theologiae (1911), Question 96.

[20] Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Oxford 1995) 333.

[21] Hart (n 17) 129.

[22] Raz (n 20).

[23] ibid.

[24] Dworkin, Taking Rights Seriously (n 4) 48–52.

[25] Raz (n 20).