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    Synopsis Vii Semester Jurisprudence-I TOPIC-Extent of Dworkin's Model of Rights Reflected in The Study of Hard Cases

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    Nickyta Upadhyay
    This document provides an overview of Ronald Dworkin's theory of rights as applied to "hard cases" in jurisprudence. It discusses Dworkin's view that in hard cases where no clear legal rule applies, judges should rely on principles and concrete rights rather than policies or consequences. The objective is to assess the extent to which Dworkin's rights thesis guides judicial decision-making in hard cases and how it addresses criticisms of open-ended judicial discretion. Key research questions examine what makes hard cases difficult and what standards judges should apply, and whether policy should always be excluded from judgments.

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    Synopsis Vii Semester Jurisprudence-I TOPIC-Extent of Dworkin's Model of Rights Reflected in The Study of Hard Cases

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    Nickyta Upadhyay
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    This document provides an overview of Ronald Dworkin's theory of rights as applied to "hard cases" in jurisprudence. It discusses Dworkin's view that in hard cases where no clear legal rule applies, judges should rely on principles and concrete rights rather than policies or consequences. The objective is to assess the extent to which Dworkin's rights thesis guides judicial decision-making in hard cases and how it addresses criticisms of open-ended judicial discretion. Key research questions examine what makes hard cases difficult and what standards judges should apply, and whether policy should always be excluded from judgments.

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    This document provides an overview of Ronald Dworkin's theory of rights as applied to "hard cases" in jurisprudence. It discusses Dworkin's view that in hard cases where no clear legal rule applies, judges should rely on principles and concrete rights rather than policies or consequences. The objective is to assess the extent to which Dworkin's rights thesis guides judicial decision-making in hard cases and how it addresses criticisms of open-ended judicial discretion. Key research questions examine what makes hard cases difficult and what standards judges should apply, and whether policy should always be excluded from judgments.

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    © All Rights Reserved
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    32 views3 pages

    Synopsis Vii Semester Jurisprudence-I TOPIC-Extent of Dworkin's Model of Rights Reflected in The Study of Hard Cases

    Uploaded by

    Nickyta Upadhyay
    This document provides an overview of Ronald Dworkin's theory of rights as applied to "hard cases" in jurisprudence. It discusses Dworkin's view that in hard cases where no clear legal rule applies, judges should rely on principles and concrete rights rather than policies or consequences. The objective is to assess the extent to which Dworkin's rights thesis guides judicial decision-making in hard cases and how it addresses criticisms of open-ended judicial discretion. Key research questions examine what makes hard cases difficult and what standards judges should apply, and whether policy should always be excluded from judgments.

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    SYNOPSIS

    VII SEMESTER

    JURISPRUDENCE-I

    TOPIC- Extent of Dworkin’s model of Rights Reflected in the study of Hard Cases

    INTRODUCTION

    Ronald Dworkin can surely be regarded as one of the most well recognized and respected
    philosophers of modern jurisprudence. His work, notably his attack on H.L.A. Hart’s
    positivist theory of law, has received considerable attention, earning him praise as well as
    trenchant criticism. However it was his discussion on whether judges should make political
    decisions in hard cases; the balancing of individual rights versus the good of the community;
    whether a person has the right to do what society views as wrong; and the meaning of
    equality in any framework of social justice that has struck a chord with practitioners and
    academicians of jurisprudence alike. Dworkin strongly opposes the idea that judges should
    aim at maximizing social wealth. It was his conviction that the area of discretion for judges is
    severely limited, that in a mature legal system one can always find in existing law a “right
    answer” for hard cases.

    When talking about rights Dworkin stated that political rights, i.e., the moral rights asserted
    by individuals against their government in liberal societies, generate distinctive practical
    requirements that effectively disable otherwise operative justifications for acting. Dworkin
    famously characterizes political rights as trumps, and his explication of this idea is his central
    contribution to general theorizing about rights. By this one can exclaim that a policy
    restricting unpopular political speech, for instance, is illegitimate even if it produces a
    marginal gain in utility. The right trumps a utilitarian justification. The nature of rights’
    trumping, though, requires explication.

    His explanation of rights in such a context are particularly important for studying hard cases.
    In his work of the same name, Dworkin, in reference to positivism , defines a “hard case”, as
    follows: when a certain case cannot be resolved by the use of an unequivocal legal rule, set
    out by the appropriate body prior to the event, ‘then the judge has, accordingly to that theory,
    a ‘discretion’ to decide the case either way. He employs the “rights thesis” in order to remedy
    the gaps in the decision-making of the judge by stating that these provide that judges decide
    hard cases "by confirming or denying concrete rights" after considering all relevant
    principles. Since there is only one correct adjudication of rights in every case, one litigant
    always has the right to win, a right that Dworkin views as a "genuine political right." Even in
    a "hard case"-"when no settled rule dictates a decision either way", it is a judge's legal
    obligation to determine which party has an institutional right to win. Here Dworkin’s
    assertion of rights as trumps waivers as the judge becomes the ultimate authority to assert the
    person’s right. Thus this project is an attempt to understand the extent of Dworkin’s Rights
    Thesis and explanation of rights within Hard Cases and how they have stirred up new
    conversation in modern jurisprudence.

    STATEMENT OF PROBLEM

    Judges increasingly base their judgement of hard cases in the policies surrounding them,
    which results in an error of judgement when confirming or denying concrete rights.

    HYPOTHESIS

    Herein I have assumed that a judicial decision shall be based in the essential principles and
    not the present policy, thus effectively presenting the litigant with a unique result.

    OBJECTIVES OF STUDY

     Assessing the freedom of judges with respect to decision making in Dworkin’s


    concept, and assessing whether they are truly free in exercise of discretion as
    proposed by H.L.A. Hart?
     To assess the role played by the moral and political thought in Dworkin’s
    construction of the “Rights Thesis”
     To assess the difference between the concepts of “principles” and “policy” in context
    of Dworkin.

    RESEARCH QUESTIONS

     What are the elements that make the decision in “Hard cases” difficult? What are the
    standards , according to Dworkin, hat a judge shall consider while delivering a
    judgement?
     Shall policy considerations always be excluded when delivering a judgement of a
    Hard Case?
    LITERATURE REVIEW

    Ronald Dworkin, “Hard Cases”, Vol. 88(6) Harvard Law Review (1975) 1057.

    Professor Dworkin has been an effective critic of the positivist position and in this essay he
    provides an alternative theory of adjudication 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 distinction is used in cases involving constitutional provisions,
    statutes, and common law precedents.

    Michigan Law Review, Dworkin's "Rights Thesis", 74 MICH. L. REV. 1167 (1976).

    This Note primarily argues that the rights thesis is untenable while alo providing a middle
    ground to some of Dworkin’s most extreme assertions. It shows that Dworkin's distinction
    between arguments of principle and arguments of policy, upon which the rights thesis is
    based, cannot withstand close scrutiny. The Note questions whether it is sensible to speak of
    an objectively soundest theory of law, and argues that, even if such a theory is feasible,
    Dworkin has failed to prove that it will always dictate a unique result.

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