This next issue has a peculiarly American focus but considerable relevance to the future of Hong Kong.  In the interest of time, I will give you a lengthier handout, but then deal with the topic in connection with Dworkin's external-personal preference distinction.  It carries over naturally into his principle-policy distinction for dividing the areas of competence of the judiciary and legislature.

In the U.S., the Supreme Court frequently declares enactments of the legislature, actions of the President, or laws of various states to be unconstitutional.  In interpreting the constitution as a higher law, they find that particular legislative act illegitimate. The judicial system refuses to give them effect in judging specific cases--most famously refusing to convict people for violating the offending law. The courts in England behave in similar ways but less aggressively. A court that does this distinguishes between a government that is itself subject to law and one that merely imposes law on people (rule of law vs. rule by law) We suppose that the Basic Law drafter's envisioned a similar practice in Hong Kong.  Ideally, the judiciary in Hong Kong should refuse to enforce commands or laws of the SAR Chief Executive and Legco that violate that Basic Law.

Now the question of what violates the Basic Law will be a matter of interpretation.  And the judicial system goes to a final authority--locally the Court of Appeals and then the NPC.  If we worry that the government is going to be non-democratic, then we would want that protection even with the NPC as the final authority--we at least have some appeal against the decisions of our non-elected government.  But suppose we also get democracy (say in 10 years).  In that case, an objection to this system in the U. S. may come to be relevant here. They object to "judicial activism" on grounds that the courts should not prevent the government form carrying out the democratic will.  They view the court as an undemocratic aristocracy.  Suppose Hong Kong's Court of Appeal were made up of foreign judges.  Would we want them deciding what laws we can have rather than our elected Legco and Chief Executive?

In America, this debate distinguishes between "judicial activism" and "judicial restraint."  Active judges tend to do this sort of thing a lot rather than showing "restraint."  Judicial activism may be encouraged by American realism.  If we think every judicial decision is a matter law-making, then we will imagine that judges should simply be deciding what is the moral thing to do whenever they hear a case.  So they would be substituting their perception of what is moral for the people's decisions as reflected in the elective process. 

We have noted how Dworkin's principle of equal concern and respect can combine with utilitarianism to justify democracy.  Our attempt to maximize benefit will be by allowing each person to weigh her own past and probable benefits in choosing representatives.  The representatives should accordingly reflect the balance of personal desires in the community. 

Some people like to contrast utilitarianism and morality.  For our purposes, utilitarianism is a naturalistic, objectivist critical moral theory--perhaps the most plausible consequential theory. So we imagine the judges also making a utilitarian decision when they decide cases--simply trying to decide what is the most beneficial thing to do.  This means that judges may consider such things as environmental policy, the balance of trade, the size of the tax burden and so forth in judging whether to accept any particular law.  Instead of asking if it violates the basic law, they seem to be substituting "is the law a good one." 

Dworkin approaches this issue in a different way from Fuller.  He does not allow that the judge can simply consult morality in making interpretive decisions. He agrees that there is an inner morality in the law and that it is relevant to judicial interpretation, but insists that the only way it can be brought to bear on decisions is to limit our moral concern to the principles used in justifying the rule of law.  We can't reach outside to the morality of environmental protection or free-health care.  He explains this difference using his distinction between principle and policy.

So the judges can consider only what will promote whatever features of justice warrants adopting the rule of law-the principle of equal maximal basic individual rights.  Policies are standards formulated with a community goal in mind--some generally desired social or economic state-including redistribution of wealth. The original objection to judicial activism came from liberals in the first half of the 20^th century after the court struck down legislation designed to help the economy recover from the great depression. If the court makes decisions on economic or tax policy on ground of wealth or other consequences, they would be legislating. The choice of such goals and of the plans for achieving them is the job of the democratic legislature.  The court should "trump" those legislative plans and projects undertaken on the community's behalf only on the grounds that the means to them violate some right.  In general, questions about distributive justice (how we should distribute and divide up goods) belong to the legislature.

Further, Dworkin regards the principles that justify the rule of law to be "in the law."  One is not reaching outside the law when she applies them.  So deciding what the law is with the principle of equal liberty in mind is finding or discovering "what the law is."  It is not legislating. As I argued before, judges make ex post facto law when they fail to reason correctly according to these principles.  Then, because their decision becomes a precedent, they can be said to "create new law" but in the sense that they add to the legal history, not that they formulate or change the words of a statute.  They may create law merely by making a mistake or they may do so for a moral reason -- one that reaches outside the principles of the rule of law and addresses other social goals. Dworkin implies they should do neither.

Thus, Dworkin's position seems to justify judicial activism in maximizing liberty, but not in equalizing distribution or pursuing other arguably rational or moral social goals.  This is the standard "liberal" position in America. The courts should not reject social legislation but should reject legislative enactments that allow government to involve itself in private decisions, free speech, press etc.  Conservatives tend to favor the opposite choices.  The court should strike down economic regulation (which restrict property rights and freedom of business) but should allow state sponsored religion and regulation of unpopular speech, pornography etc.

However, even Dworkin admits that the distinction between principle and policy is not easy to make clear--especially in what Hart would call the "penumbral" or Dworkin calls the "hard" cases.  Consider the environment.  Is clean air a goal or a right?  It seems plausible to argue that people have a right to a clean environment, education, medical care, etc. Even if we were to limit ourselves to basic rights, breathing clean air is both basic and seems in principle to be equally available to all.

Dworkin's distinction applies to both legislative and judicial standards. In general, however, he does not bar the legislature from legislating on principle but does bar the judiciary from deciding cases on policy grounds.  Now we want to look more closely at the standards for adjudication. The issue, remember, arose when the realists insisted on distinguishing between the law and a law. The law is the structure of legal rights and duties. An adequate theory of law has to explain concrete, actual rights and duties not just rules. Realists criticized positivism for failing to explain how to bridge the gap between rules and concrete duties. Some realists, however, hardly improved on the matter - merely offering a sociological approach. They treated the issue mainly as one of predicting the judge's decisions.  When it came to justifying them, these realists seemed in perverse agreement with positivists that one could use "morality" but that it was not part of the law.

Dworkin's early work focused mainly on the standards of adjudication.  He also argued against the positivist's "model of rules." The law, he said, includes principles which prescriptively guide the derivation of particular legal rights and duties from primary rules. The principles are those referred to in Dworkin's principle-policy distinction. 

Dworkin draws mainly a functional contrast between principles and rules. They play different roles in judicial decision. Principles are standards for deciding which rule applies.  To decide that a rule applies is to decide to apply it rather than some conflicting rules in deciding the issue at hand. For example, consider our earlier question about the rule "no vehicles in the park" and suppose another says "public places must be handicap accessible." A handicapped person, Jones, with a motorized wheelchair rides in the park.  The judge appeals to principles to decide which rule applies to this particular case.  If it is the first, then the person has no right in the park.  The case is decided by appeal to the "no vehicles" rule.  If the second then the case is decided by the "handicapped access" rule.  The person has a right to access which means the rule about vehicles does not apply in his case.  This is what Dworkin means when he says rules "apply in an all or nothing fashion."

Principles, by contrast, pull in many different directions and all apply at once.  So they have a property that Dworkin vaguely calls "weight." (Think of "vector mathematics" where the vectors pulling in different directions yield a final sum and direction.) In order to get a decision, we have to consider all the principles at stake and treat (weigh) some as more important than others in this situation. This vague and possibly shifting feature of weight combines with the fact that we can cite no definitive or fixed list of principles or their formulation.  Together they make principled reasoning epistemologically complex and practically underdetermined. Dworkin argues, nevertheless, that the idea is metaphysically clear. What he means is to reject Gray's inference from the difficulty of deciding what is the right (epistemology) to the conclusion that there is no right (metaphysics). We have no trouble making sense of what it would be for a decision to be right, even if we have considerable trouble proving conclusively what should be the outcomes in particular hard cases. 

One of Dworkin's famous formulations is that the principles together with their weights yield "one right answer" to legal questions.  Metaphysically, he is saying there is a legal fact of the matter and morally he says the judge has the duty to find and acknowledge that prescriptive legal fact. Dworkin appeals to the principle of excluded middle.  For any legal proposition P, either P or not-P.  Either Jones has a right to go into the park or he does not.  The principles are whatever we need to make it the case that exactly one of those is the right answer.

Dworkin targets mainly Hart and his argument about the penumbra and judicial discretion.  He follows Fuller in casting the issue in prescriptive terms: "Can we justify a rule of law with extensive use of judicial discretion?"  His answer is "No, because unlimited use of discre­tion is the opposite of rule of law." That is, rule by intuition is a paradigm case of the rule of man rather than rule of law.  In such a system (with respect to that sphere of discretion) there would be no answerability, no predictability, and no basis for competitive advocacy because no one could legitimately appeal to objective principles of legal argument to settle the issue. As we argued before, Hart's position technically makes legal duties in penumbral cases ex post facto duties. The person did not have the duty at the time of action.  The duty came into being with the exercise of judicial discretion that results in his conviction.

Dworkin does allow that judges do have discretion in some obvious senses, but he distinguishes between weak and strong senses of "discretion."  One weak sense is that in which an order may be "open-ended" or "vague."  As we have seen, the application of principles to legal cases leaves things epistemologically unsettled. Not all truths are (easily) knowable. An order to a sergeant to "select the five most experienced men for a mission" may be as vague as is the concept of 'experience'.  However, it does not give discretion in the strong sense.  The sergeant is not to use his discretion in choosing the men, he is to choose them for their experience as properly interpreted in the context of that order.  He relies on what Dworkin calls a 'conception' (a theory) of the 'concept' and he would not have obeyed the order if he got it wrong (e.g. if he took it to mean 'sexual experience' or merely 'chronological age.')

Other weak senses of 'discretion' are connected with the performative and final conceptions of a judge's authority.  A judge has discretion in the sense that it is her role to "make the finding" and whatever finding she makes stands.  The finding might still be wrong and still have legal effect. Performative authority or discretion does not excuse judges from the theoretical duty to do it right.  Similarly, High Court judges may be final authorities and have discretion in another weak sense, i.e., no one can reverse or change the decision they make.  However, judges do not have discretion in the sense that they would be free from justified criticism if they flipped a coin or took a bribe in deciding issues. They do not have a wholly un‑structured choice nor are they free from the duty to justify their choice while applying consistent standards. 

In some legal situations there are specific grants of 'discretion' to judges, for example in sentencing.  Frequently the rule will give a range of possible sentences. The judge is still expected to weigh all the factors to find the 'right' sentence.  This kind of discretion, however, does not apply in the case of specific legal findings according to Dworkin. There the judge is expected to treat it as her duty to find "the right answer."

Hart's defenders may insist that he does not allow discretion in these "clear" cases but only in the hard ones--those where the issues are new, complex, or vague and equally well qualified judges and legal experts all disagree. Hart argued for discretion primarily in cases of his "penumbra."  Dworkin claims that even in hard cases, the judge is not entitled to use strong discretion. Hard cases raise questions to which judge must provide an answer and he ought to give the correct one.  Admittedly, there may be many warring theories in the legal community, but the judge in his performative role is charged with choosing the correct one.

Hart also allows that one ought to decide the case in one 'best' way, but that the standards that make it best come from outside the law in those hard cases. Dworkin argues that the principles partly constitute the rule of law.  We can understand this claim alongside Fuller's notion of the "inner morality of law."  The principles help justify the rule of law and flow from the features of law that we value.  He uses analogies to games, for example in American baseball, the rule is a put-out requires the fielder to touch the bag before the runner.  But in practice, umpires tend to allow the second baseman to make a double play without touching the bag because the opposing runner may injure him with his spikes when he slides to the base.  In chess, players are not allowed to blow cigar smoke across the table during a match or hypnotically stare at their opponent.  These rules are not in the books, but emerge in practice and are justified by an implicit appeal to the character of the activity or game. What is the purpose and charac­ter‑‑why play this game?

Raz offers a different defense of Hart's positivism (in the face of Dworkin's challenge).  He says any principles to which Dworkin can appeal in his case-law examples are part of the law in Hart's sense as long as there is a secondary rule of principle recognition as there is of law recognition.  If such secondary principles are part of the secondary rule of adjudication, then Hart can absorb Dworkin's point and still maintain his theoretical separation of law and morality.  The appropriate rule of recognition might be that judges do in fact appeal to this principle and other judges accept such appeal as legitimate. Thus he employs Hart's acceptance/compliance distinction to handle Dworkin's argument.

Dworkin's second and third version of his principles manifesto deals with that response.  He draws a distinction between a conventional and a concurrent morality.  He argues that no mere social acceptance can warrant a claim of right or duty. Asserting a duty is not merely presupposing some social rule and signifying acceptance. We will expand this response in the next handout