Introduction
In 1975, Ronald Dworkin wrote Hard Cases (88 Harvard Law Review 1057 (1975) reprinted in Ronald Dworkin, Taking Rights Seriously
ch 4 (Harvard University Press, 1977)). This is one of the most famous
and influential articles in contemporary legal theory, and I would put
it very high on my recommended legal-theory reading list. Lot's of
Dworkin's ideas are very controversial, but one of his claims has
become part of the way that most legal academics think about the law in
general and the enterprise of judging in particular. I am referring to
Dworkin's distinction between "fit" and justification" and his claim
that when judges decide hard cases, they choose the interpretation of
the law that best fits and justifies the existing legal landscape–the constitution, statutes, regulations, and common law.
As always, the Legal Theory Lexicon is aimed at law
students (especially first year law students) with an interest in legal
theory. I know you are all very busy at this time of year, so I will do
my best to be concise.
The Basic Idea
Suppose a judge is deciding a hard
case. It could be a common law case or a constitutional case or a
statutory case. How do judges approach this task when they are
confronted with a case in which the law is up for grabs? That is, how
do judges decide cases where there is an unsettled question of law?
Dworkin's basic idea is that the process of deciding a hard case has
two dimensions–fit and justification. First, the judge might ask
herself, "Of all the possible interpretations of the law that I could
adopt as the basis for my decision, which one is consistent with the
theory that best fits the existing legal landscape. Of all the
rules I could adopt in this case, which ones are consistent with the
relevant constitutional and statutory provisions and with the
precedent." When the judge had identified the alternatives that meet
the criterion of fit, it is possible that there will be more than one
possibility that fits. If so, then the judge can go on to ask
the question, "Of the interpretations of the existing law that fit the
constitution, statutes, and case law, which is the best interpretation?
Which of the possible legal rules that I could adopt is most consistent
with the normative theory that provides the best justification for the law as a whole.
Fit
What does it mean to say that a given rule fits
the legal landscape? Suppose you are a judge deciding whether your
jurisdiction will adopt the rule of contributory negligence or will
choose instead to follow the comparative negligence approach. It is
possible that only one of these two rules fits the existing law
in your jurisdiction. For example, if the legislature has mandated the
contributory negligence rule by statute, then as a judge (even a
Supreme Court judge), you would be obliged to follow the statute and
decide the case before you on the basis of contributory negligence. On
the other hand, suppose you are in a newly created jurisdiction. No
statute or binding precedent requires either comparative or
contributory negligence. Both rules fit the existing legal landscape. In that case, Dworkin argues, you would need to decide a question of justification.
Justification
What does it mean to say that a
judge might prefer one rule over another on the basis of the criterion
of rustication? Let's continue with our example of the choice between
contributory and comparative negligence. Since there is no statute or
precedent that compels (or strongly guides) the choice, the judge must
turn to some other basis in order to make her decision. She will need
to get normative, i.e., to consider the normative
justifications for tort law. Simplifying greatly, let's suppose our
judge decides that the tort of negligence is best understood as a
system of compensation and "risk spreading." She might then reason that
the comparative negligence rule does a better job of serving this
purpose than does a contributory negligence rule. Contributory
negligence allows losses to go uncompensated when the plaintiff
(victim) caused any of her own loss; comparative negligence does a
better job of spreading the risk of accidents. [I know that this is a
very crude argument, and I'm sure all of you can do better.]
In other words, the judge asks the question, "What normative theory
best justifies the existing law and negligence?" And then proceeds to
the question, "Given that justification of tort law, which of the
alternative rules that I could apply to the case before me best serves
the purposes of tort law?"
Two Kinds of Justification: Principle and Policy
In Hard Cases,
Dworkin identified two different kinds of arguments that can be used to
justify the law. He called these two different types arguments of
"principle" and "policy." As understood by Dworkin, arguments of principle
are arguments that appeal to ideas about fairness and rights. If you
would like to know more about arguments of principle, a good place to
begin is with the Legal Theory Lexicon entry on Deontlogy.
Arguments of policy, on the other hand, appeal to consequences.
For example, if you argued that a comparative negligence rule is better
than a contributory negligence rule because it provides optimal
incentives for taking precautions against accidents, you would have
made an argument of policy in Dworkin's sense.
If you are interested in the theoretical basis for arguments of policy, you could take a look at the Legal Theory Lexicon entry on Utilitarianism.
Dworkin himself argued that judges should consider arguments of
principle and should not decide cases on the basis of arguments of
policy. That feature of his theory is hugely controversial–as you
could guess if, like most law students, you've heard endless discussion
of policy in the classroom. But Dworkin could be right about "fit and
justification," even if he is wrong that the dimension of justification
is limited to principle and excludes policy.
Conclusion
It is very difficult to generalize about law school exams; they vary enormously. But
many standard issue spotting essay questions have built into them a
"hard case," an aspect of the fact pattern that is intended to trigger
your discussion of the question, "What should the rule be?," with
respect to some controversial legal issue. If you try to answer the
question, "What should the rule be?," by telling your instructor, "Here
is the majority rule," or "Here are two alternative rules; I don't know
which one is the law, you will have missed the point of the question!
And that's where Dworkin comes in. You can use "fit and
justification" as the basis for organizing your answer to a "What
should the law be?" question. Begin with fit. Which possible rules are
consistent with the settled law? Then move to justification. Of the
rules that fit, which is the best rule? Now list the arguments of
principle and policy for and against each of the plausible candidates.
Be sure to come to a conclusion. That is, end with something like,
"Adopting a rule of comparative negligence is required by the theory
that best fits and justifies the existing law of torts."
(Last revised on October 18, 2009)