The statement identical to the theory if adjudication of Dworkin who pictures law as a gapless legal universe and here there is always a correct answer in every legal question. On the other hand professor HLA Hart took an opposite view that in hard case judges have to use discretion. As judge use discretion so that there is not any right answer.
According to Hart law comprises both primary and secondary rules. Dworkin identified that Hart made a big mistake to say that law is made up of rules only and he argued that apart form rules we can find principles. By rule Riggs v Palmer case can not be defined. It was held that the defendant was denied the inheritance due to the principle “no one should be permitted to benefit from his own wrong doing”. We can see here that the principle is the determining factor. If we apply only rule then the law will permit palmer to get inheritance. Here it may be argued that constructive interpretation which considers principle along with rule able to give right answer here.
On the other hand, one of the most important areas of Hart’s theory is his “open texture theory”. He put forward the concept of “open texture” as an argument for why rules should be applied in a way which requires judicial discretion. By “open texture”, Hart means that in some situations judges need to exercise their discretion when a case is not governed by any existing rule. This is due to the indeterminacy of the application of rules. Hart giving three main reasons:
Firstly, Language is indeterminate. Legal rules are composed of words and they aim to communicate the required standards of behavior. Nevertheless, words are always problematic and imprecise. According to Hart, one or more words in a legal rule have a core of plain meaning. Here he gives us an example of “No vehicle is allowed in the park”. In plain case, a car or coach is not much problematic as it is well accepted that these are vehicle but problem arise regarding skateboard. Hart then said that there are reasons both for and against the use of a world and the person called upon to answer the question need to consider whether the present case resemblance the plain cases “sufficiently” in “relevant” respects. Therefore, the discretion left to him by language is very wide. But at the same time, there are restraints when he exercises his discretion. He maintains that we can never exclude uncertainty form language because we are men, not god.
Secondly, very general standards are used in the rules. Very often we find words like fairness, reasonableness or justice in the rules which impose very general standards to all different kinds of situations. Therefore, uncertainty would easily arise because of the unclear and imprecise standards.
Thirdly, there is indeterminacy in the common law system of precedent. Hart pointed out that there is no clear rule governing the selection of precedents and also the process of extracting holdings. Finally, the judges may either narrow or widen the rules extracted form the precedents.
Dworkin is not satisfied with this model. The reasons are: discretion is not free-standing but part if a process. Discretion, like the hole in the doughnut, does not exercise except as an area left open by a surrounding belt of restriction. Discretion is not outside the law but internal to the law. If discretion is uses then judicial law making will come into existence and it will be fraud upon litigant because at the time of committing of the offence it was not law.
Regarding the question of judicial discretion, Dworkin, outlines two type of discretion. One of them is strong and another is weak. Strong discretion does not exist for judge. In weak discretion there is no gap in law and it is a part of judicial role. The strong discretion will not exist if the judge applies the theory of constructive interpretation or law as integrity. It means that if every case there is a right answer and it is not necessary to use discretion by judges.
But problem arise about right thesis that it can not demonstrated that there is only one right answer to a question. Supposing two judges are to decide whether Elmer is entitled to inherit his grandfather’s property, they may answer this question differently from each other and yet claim that each answer is the right answer. How do we demonstrate that there is only one right answer to a problem? Dworkin’s answer is that it is insufficient to say that there can be no right answer just because they cannot be proved. Here he introduces the Hercules judge who has superhuman power that most judges lack. He can find out correct answer in all hard cases by applying constructive interpretation which includes analyzing all the applicable rules and principles.
Moreover, Geenawalt have argues that the “denial of discretion is wrong and is inconstant with out ordinary understanding of judicial responsibilities for opinion. To suggest that judges have discretion is not to imply that they have license to do what they will. The institution of judging offers the judge choice only within the constraints of judgment”.
Greenawalt argues that there are also examples which contradict the right theories. For example, in a case of nuisance, the judge may consider the effect of his discretion on the community before accepting the right of the claimant. Such cases indicate that judges do decide on policies while determining the rights of the individual. Dworkin replies that this is not a case of policy but a case where the judge compromises competing rights.
Finally, I want to conclude that, there is a right answer of every legal dispute though it is not discovered in all cases. By constructive interpretation it is the duty upon the judges to find out that right answer.
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