The End To Judge’s Discretion In Hard Cases?

Dworkin’s theories are systematic. In order to illustrate the relationbetween different theories of Dworkin, the writer introduce his theory ofadjudication from his criticism to the right of discretion, which issupported by theories of legal positivism, with problem awareness thatwhen the propositions of law are true in hard cases.Dwokin’s criticism to legal positivism starts from its philosophicalfoundation. Theory of adjudication of legal positivism focuses on theissue of fidelity, so rights of discretion are needed to judges when legalrules are vacant. But Dwokin thinks the issue of fidelity is nonexistent,and the truth is that this question is part of the “theoretical” disagreementabout the law. Such misunderstanding of legal positivism is resulted inthe wrong philosophical foundation: semantic theory, which considerslaw as criterial concept. Dworkin believes that adjudication process ofjudges can only be acknowledged rightly under the Hermeneutics theoriesother than semantic theories. So Dworkin considers law as interpretiveconcepts, and he suggests the way of constructive interpretation toadjudication of judges. Constructive interpretation is a way of fusion of horizon betweeninterpretation purpose and the value of judicial practice. So theadjudications of judges should accord with the value of judicial practice.Dworkin considers conceptions of legal positivism as conventionalism,and he criticize conventionalism about the legality value with his conceptof “law as integrity” so as to find the judicial practice value.With the two theories of constructive interpretation and integrityconsideration of law, Dworkin puts his viewpoint that there is only oneright answer to hard cases in judicial practice. So Dwokin’s theories ofadjudication contain three parts: constructive interpretation, integrityconsideration of law and the theory of only one right answer to hard cases.He believes that with the idea which considers law as integrity, judgescan find the only one right answer to hard cases through the way ofconstructive interpretation. In such theories, the rights of discretion arenot needed to judges.