1. Ronald Dworkin, Taking Rights Seriously (Duckworth, 1977) at 84. See also Dworkin, Ronald, Law’s Empire (Harvard University Press, 1986) at 244.Google Scholar Two clarifications: (1) The qualifier “characteristically” in the above formulation of the thesis refers to how cases are decided, not to how they should be decided. At the prescriptive level, Dworkin maintains that, at least in common law decisions, judges should never decide on the basis of policy. His position on how they should interpret statutes will be specified later (body text accompanying notes 27-33). (2) The thesis, as stated above, refers to civil cases. In criminal cases, in contrast, Dworkin seems to suggest an asymmetrical exclusion of policy arguments, namely, such that defendants have a right that policy arguments be barred from serving as a ground for conviction, but the prosecution has no right that policy considerations for acquittal be disregarded (Dworkin, Taking Rights Seriously, ibid). For brevity, I will sometimes leave out the scope qualifier “civil” and use broad terms such as “adjudication” or “judicial reasoning”. But the intended scope of my analysis remains civil law.

2. Dworkin, Taking Rights Seriously, supra note 1 at 87-90.

3. Ibid at 81, 100.

4. Or, more precisely, the version of floodgates argument discussed by Dworkin.

5. And to jurisdictions other than those featuring in my examples.

6. Dworkin, Taking Rights Seriously, supra note 1 at 100. Elsewhere Dworkin adverts to a concern about “the ‘flood’ of litigation” and “[c]ongestion in the courts” (Dworkin, Law’s Empire, supra note 1 at 28).

7. This is clear both from Dworkin’s above-quoted description of the argument and from his subsequent comments.

8. See, e.g., Horsey, Kirsty and Rackley, Erika, Tort Law, 2nd ed (Oxford University Press, 2011) at 57-58Google Scholar (referring to “a wish to prevent a ‘flood’ of claims … which may in turn clog-up or slow down the tort system as a mechanism for compensation”); John Cooke, Law of Tort, 10th ed (Pearson, 2011) at 6-7 (noting that “[t]he courts are concerned with opening the floodgates of litigation”, and referring to “the fear of the courts being swamped by a large number of actions”); Michael A Jones, Textbook on Torts, 8th ed (Oxford University Press, 2002) at 96 (“The courts have been traditionally wary of actions which might lead to a flood of claims inundating them with work (the ‘floodgates’ argument)”). For relevant judicial comments, with or without express reference to the label “the floodgates argument”, see, e.g., Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27 (hereafter: Spartan Steel) at 38 (Lord Denning noting, albeit in passing, that the cutting of electricity supply “affects a multitude of persons”); White v Chief Constable of South Yorkshire Police [1999] 1 All ER 1 (hereafter: White) at 6 (Lord Griffiths referring to the argument that “if foreseeability of psychiatric injury is sufficient it will open the floodgates to claims, many of an unmeritorious kind, from those who give assistance at any accident”, but rejecting it as he notes that “the courts are well capable of controlling any such flood of claims”); Rothwell v Chemical & Insulating Co Ltd [2007] 4 All ER 1047 at 1066 (Lord Hope referring to the risk of giving rise to “litigation the costs of which were out of all proportion to what was in issue”). See also Esanda Finance Corporation v Peat Marwick Hungerfords [1997] HCA 8 (where the court considers the effect of auditors’ liability “on the administration of the court system”).

9. Each version of the floodgates argument mentioned in the body text may, in fact, appear in at least three forms: (i) where it is anticipated that the flood of lawsuits would be in cases of the same type as the one at hand; or (ii) where it is feared that recognizing liability in the present type of case would carry with it further expansions of liability in other types of case due to what William Prosser termed “the problem of finding a place to stop and draw the line” (Handbook on the Law of Torts, 4th ed (West, 1971) at 256); or (iii) where both (i) and (ii) are involved.

10. Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520 at 532 (Lord Fraser citing in connection with the floodgates argument Cardozo CJ’s famous warning against introducing “liability in an indeterminate amount for an indeterminate time to an indeterminate class” in Ultramares Corporation v Touche (1931) 174 NE 441 at 444); Leigh & Sillavan Ltd v Aliakmon Shipping Co Ltd (The Aliakmon) [1986] AC 785 at 816 (Lord Brandon referring to a policy concern “to avoid the opening of the floodgates so as to expose a person guilty of want of care to unlimited liability to an indefinite number of other persons whose contractual rights have been adversely affected by such want of care”); White, supra note 8 at 33 (Lord Steyn referring to “a burden of liability on defendants which may be disproportionate to tortious conduct involving perhaps momentary lapses of concentration, e.g. in a motor car accident”; the phrase “flood of litigation” appears shortly after, at 34); Cooper v Hobart [2001] SCC 79 at para 54 (where it is noted that “the spectre of indeterminate liability would loom large if a duty of care was recognized …”).

11. M v Newham London Borough Council [1994] 4 All ER 602 at 630 (Staughton LJ referring to the argument that “a new development will open the floodgates to litigation”, and noting that if a duty of local authorities be recognized in the case at hand “many claims will be brought, placing further strain in an already stretched system [i.e. social welfare system]”).

12. Spartan Steel, supra note 8 at 38 (Lord Denning noting: “[I]f claims for economic loss were permitted for this particular hazard, there would be no end of claims. Some might be genuine, but many might be inflated, or even false. A machine might not have been in use anyway, but it would be easy to put it down to the cut in supply. It would be well-nigh impossible to check the claims”); White, supra note 8 at 32-33 (Lord Steyn referring to “the complexity of drawing the line between acute grief and psychiatric harm” and noting that “there is greater diagnostic uncertainty in psychiatric injury cases than in physical injury cases”; the phrase “flood of litigation” is cited at 34).

13. Spartan Steel, supra note 8 at 38 (Lord Denning: “[M]ost people are content to take the risk on themselves. When the [electricity] supply is cut off, they do not go running round to their solicitor. … They try to make up the economic loss by doing more work next day. This is a healthy attitude which the law should encourage”); White, supra note 8 at 33 (Lord Steyn: “The litigation is sometimes an unconscious disincentive to rehabilitation [in the context of psychiatric harm]”); John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority [1996] 4 All ER 318 at 332 (Rougier J: “[B]y far the most important consideration, is what is sometimes referred to as the ‘floodgates’ argument”; and a few lines below: “There seems to be a growing belief that every misfortune must, in pecuniary terms at any rate, be laid at someone else’s door, and after every mishap, every tragedy, the cupped palms are outstretched for the solace of monetary compensation. Claims which would have been unheard of 30 years ago are now being seriously entertained …”).

14. Dworkin, Taking Rights Seriously, supra note 1 at 83.

15. Ibid at 82.

16. Ibid.

17. Ibid.

18. Ibid at 87-90.

19. Though rights of this kind may, of course, feature in an argument of principle—for example an argument of principle which advocates anti-discrimination legislation through an appeal to the right to equality (see, e.g., ibid at 82).

20. Ibid at 83.

21. Ibid at 88, 113. See contra: Kent Greenawalt, “Policy, Rights, and Judicial Decision” (1976) 11 Ga L Rev 991 at 1001, 1008-10; Joseph Raz, “Professor Dworkin’s Theory of Rights” (1978) 26:1 Political Studies 123 at 135. Cf Regan, Donald H, “Glosses on Dworkin: Rights, Principles, and Policies” in Marshall Cohen, ed, Ronald Dworkin and Contemporary Jurisprudence (Duckworth, 1984) 119 at 132–40.Google Scholar

22. Which is not to deny that the latter question may have some (indirect and limited) relevance for the former—for example, when it is considered that too frequent changes in political and social arrangements would introduce an unwelcome degree of instability into people’s lives.

23. Dworkin, Taking Rights Seriously, supra note 1 at 113.

24. See, e.g., somewhat different senses of “principle” and “policy” referred to in Christian Witting, “Tort Law, Policy and the High Court of Australia” (2007) 31:2 Melb U L Rev 569 at 571-73.

25. Which, to reiterate, Dworkin considers to be a defining characteristic of policy justifications (Dworkin, Taking Rights Seriously, supra note 1 at 82).

26. See, e.g., George C Christie, “The Uneasy Place of Principle in Tort Law” (1996) 49 SMU L Rev 525 at 526 (referring to “the assumption that the law is seeking to achieve the more efficient allocation of society’s resources” as a principle). See also at 541.

27. Once more, my statements about the thesis sometimes refer generically to “adjudication” or “judicial reasoning” without explicitly distinguishing different types of judicial decision. This is merely for ease of reference. The variation specified in the body text that follows should be read into any statement or argument made here about the rights thesis.

28. Dworkin, Law’s Empire, supra note 1 at 244.

29. Dworkin, Taking Rights Seriously, supra note 1 at 108-09, 111 n 1; Dworkin, Law’s Empire, supra note 1 at 312, 338-39.

30. Dworkin, Taking Rights Seriously, supra note 1 at 111, n 1.

31. Ibid.

32. Ibid.

33. For the same reason, my primary focus in examining Dworkin’s position will be its application to common-law cases.

34. See largely consistent point made by Lord Roskill in Junior Books Ltd v Veitchi Co Ltd, supra note 10 at 539.

35. Dworkin, Taking Rights Seriously, supra note 1 at 98.

36. Ibid at 93.

37. Ibid.

38. Ibid.

39. Ibid.

40. Ibid at 100. He adds: “His argument is an argument of principle if it respects the distributional requirements of such arguments, and if it observes the restriction mentioned in the last section: that the weight of a competing principle may be less than the weight of the appropriate parallel policy.” I am not sure, however, how material this last restriction actually is, given that, according to Dworkin, the example involves a competition between two principles, rather than a principle competing with policy. The additional weight given to a principle on one side of the scale qua principle would be offset by a similar addition of weight attached to the principle on the other side of the scale.

41. Ibid.

42. The point made here shares some of the intuitions expressed in John Umana, “Note, Dworkin’s ‘Rights Thesis’” (1976) 74 Mich L Rev 1167 at 1179-81 (where it is observed that Dworkin is able to accommodate apparent counterexamples to his rights thesis “only by engaging in a conceptual ‘gerrymandering’ that abandons his original formulations of the principle-policy distinction”), and Greenawalt, supra note 21 at 1003 (where it is noted: “If we interpret Dworkin’s theory to provide reasonable responses to questions of how courts are supposed to weigh interests of nonparties, the distinction between principles and policies becomes much more blurred and almost vanishes”) and at 1016-26. However, Umana and Greenawalt seem at points sceptical as to the very viability of the principle/policy distinction, whereas my own view (as will be become clear in the sequel) is that the distinction (in its basic form, prior to Dworkin’s adaptations) captures a normatively significant difference, even if Dworkin was wrong to regard it as a rigid boundary that categorically circumscribes permissible (and characteristic) judicial activity.

43. Or, at least, preventing it from going in undesirable directions in terms of those wider social implications. The foregoing, it may be added, is comparable to the way John Bell speaks of the “political” aspects of the judicial role as involving the function of “giving direction to society” (John Bell, Policy Arguments in Judicial Decisions (Clarendon Press, 1983) at 6-7).

44. By “the law” I mean here, roughly, a body of standards comprised, inter alia, of statutory rules, doctrinal principles, and precedents. It is not my purpose here to determine whether the content of this body of standards is identifiable through Dworkin’s interpretive test or through a legal positivist test.

45. Cf comments in Regan, supra note 21 at 139 pointing out somewhat similar patterns of judicial reasoning.

46. For a recent account of legal reasoning with a focus on coherence, see Amaya, Amalia, The Tapestry of Reason: An Inquiry into the Nature of Coherence and its Role in Legal Argument (Hart, 2015).Google Scholar

47. Cf George Christie’s remark that the desire to limit discretion (in the manner he specifies and associates with the rule of law) “is certainly one of the major attractions of the resort to principle” (Christie, supra note 26 at 540). Cf also Witting’s arguments that policy-based reasoning is comparatively “unstable” and more prone to result in inconsistent rulings, and that courts will often not have before them the comprehensive information requisite to be well-placed for policymaking (Witting, supra note 24 at 569-70, 577, 579-80).

48. See also Bell, supra note 43 at 224, referring to “the essential continuity in judicial methods in hard and easy cases”.

49. [1932] AC 562.

50. [1964] AC 465.

51. [1983] 1 AC 410.

52. (1916) 217 NY 382.

53. (1980) 607 P 2d 924.

54. At 707.

55. At 68. See also Edmund Davies LJ’s comments in Spartan Steel, supra note 8 at 40, and Lord Scarman’s comments in McLoughlin v O’Brian [1983] AC 410 at 430-31. A few examples drawn from Canadian case law include, e.g., Canadian National Railway Co v Norsk Pacific Steamship Co [1992] 1 SCR 1021 at 1153, where McLachlin J endorses a “principled, yet flexible, approach to tort liability for pure economic loss”, such that “it will permit coherent development of the law”; Clements v Clements [2012] SCC 32, where, in delimiting the material-contribution-to-risk doctrine, the court warns against undermining “the fundamental principle … [that a] defendant in an action in negligence … is a wrongdoer only in respect of the damage which he actually causes to the plaintiff …” (at para 16); and Saadati v Moorhead [2017] SCC 28, where the court rejects the limitation of recoverability for mental injury to cases of “recognizable psychiatric illness”, noting that such a limitation is grounded in “no principled reason” (at para 36). See also the High Court of Australia’s comments in Sullivan v Moody (2001) 207 CLR 562 at para 49.

56. Greenawalt’s remark that “any theory is probably mistaken if it totally excludes from judicial consideration broad classes of arguments that would obviously be of weight for conscientious legislators dealing with a social problem” (Greenawalt, supra note 21 at 993), though framed somewhat more broadly than my comments above, seems befitting in this connection. See also at 1010-15.

57. To a similar effect, see Bell, supra note 43 at 6, 224.

58. Given that many of the cases wherein the FA has been invoked are tort cases.

59. Caparo Industries Plc v Dickman [1990] 2 AC 605 at 617-18. Cf the bipartite test initially used in Anns v Merton LBC [1978] AC 728, which found favour with Canadian courts (see, e.g., Cooper v Hobart, supra note 10).

60. Rylands v Fletcher (1868) LR 3 HL 330 at 339.

61. See also Bell, supra note 43 at 269, referring to “open-ended standards” as one of the factors accentuating “the increased willingness of judges to overrule and develop the common law”.

62. Whether its decision is conceived of as demarcating the scope of the duty or, following Goldberg and Zipursky, as determining whether to grant an exemption from the duty—see John Goldberg & Benjamin Zipursky, “The Restatement (Third) and the Place of Duty in Negligence Law” (2001) 54 Vand L Rev 657.

63. See Mitchell v Glasgow City Council [2009] 3 All ER 205.

64. See Transco plc v Stockport MBC [2004] 1 All ER 589.

65. A similar point finds expression in Neil MacCormick’s rhetorical question: “Is it not relevant to ask what will be the outcome if it be ruled that all who engage in activities which may cause nonphysical damage to other persons owe to those at risk a duty to take reasonable care, and an obligation of reparation if they cause such economic loss by failure to take reasonable care?” (DN MacCormick, “Dworkin as Pre-Benthamite” (1978) 87:4 Philosophical Rev 585 at 595).

66. See Greenawalt, supra note 21 at 1004-05 (noting the legislature’s lack of time or political interest to engage itself in establishing rights for every area of the common law).

67. How does my position relate to legal realism? It is essential to distinguish in this regard between moderate and extreme views associated (correctly or not) with the label “legal realism”. By “extreme” I mean a position denying that legal doctrine, rules, and principles make (and/or should make) any real difference to judicial decisions, and regarding them as no more than window dressing or a means of rationalization. This stance is clearly inconsistent with my position, but only few, if any, legal realists have actually endorsed it in this unqualified form. By “moderate”, on the other hand, I mean a range of positions denying that legal doctrine, rules, and principles determine alone judicial decisions, but acknowledging that they contribute to those decisions along with other factors, such as the judge’s political orientation, ideological outlook, and social background. Described at this level of generality, moderate legal realism is not inconsistent with my view, though there may well be some other, more specific points of disagreement, such as over the degree of influence legal doctrine, rules, and principles should and do exert on the decision. For a pertinent discussion of different varieties of legal realism, see Cotterrell, Roger, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, 2nd ed (Oxford University Press, 2003) ch 7.Google Scholar See also Leiter, Brian, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford University Press, 2007)CrossRefGoogle Scholar esp ch 1; Hanoch Dagan, “Doctrinal Categories, Legal Realism and the Rule of Law” (2015) 163 U Pa L Rev 1889.

68. See, e.g., Dworkin, Law’s Empire, supra note 1 at 228-39.

69. See, e.g., ibid at 246-47 (noting that even after the level of “fit” requisite for an interpretation to be eligible has been satisfied, “questions of fit surface again, because an interpretation is pro tanto more satisfactory if it shows less damage to integrity than its rival”).

70. It should be noted that the trade-off Dworkin envisages does not consist in a freestyle balancing between “fit” and “justification”, but a structured reasoning process governed by conditions and constraints (such as the threshold level of “fit” requisite for an interpretation to be eligible) that shape the interaction between “fit” and “justification”.

71. The objection is also wrong to impute to Dworkin the thought that an otherwise unprincipled interpretation becomes principled merely by satisfying the requirement of fit with past decisions. In fact, according to Dworkin, there are other, independent conditions of content that an interpretation must meet in order to qualify as a principled interpretation in the requisite sense. Crucially, its content must be such that it states (or, at least, figures in or follows from) a principle of justice, fairness, or procedural due process (Dworkin, Law’s Empire, supra note 1 at 225). See, for example, at 240-44, Dworkin’s illustration of how Hercules would go about the facts of McLoughlin v O’Brian, where Dworkin discards some candidate interpretations of the law as ineligible on the above ground.

72. Dworkin, Law’s Empire, supra note 1 at 244 (stating that “[j]udges must make their common-law decisions on grounds of principle, not policy”).

73. Dworkin, Taking Rights Seriously, supra note 1 at 111 n 1. See also Dworkin, Law’s Empire, supra note 1 at 338-39, where he contrasts common-law precedents with statute.

74. The point in the body text bears some resemblance to MacCormick’s point that in hard cases often both disputants can appeal to settled and sound principles—and associated rights—and the decision which of these rights to uphold turns on “a characteristically legal mode of consequentialist argument” involving, inter alia, reference to concepts such as “public policy” (MacCormick, supra note 65 at 594-95, 597-98).

75. There are other parameters by which policy arguments could be classified. See, for example, Bernard Rudden’s classification of arguments from consequences (a theme intimately connected to policy), distinguishing between what he calls “behavioural consequences”, “judicial consequences”, and “inbuilt consequences” (Bernard Rudden, “Consequences” (1979) 24 Jurid Rev 193).

76. [2005] UKHL 23.

77. See related comment by Lord Roskill in Junior Books Ltd v Veitchi Co Ltd, supra note 10 at 539.

78. This has not always been the case—see, e.g., Harvey Teff, Causing Psychiatric and Emotional Harm: Reshaping the Boundaries of Legal Liability (Hart, 2009) at 40, noting that the early common law’s approach was “virtually programmed to entrench primitive suspicions and prejudices about ‘invisible’, intangible harm”.

79. Supra note 8.

80. Ibid at 32.

81. Ibid at 31. See further comment in this general vein in Robert Stevens, Torts and Rights (Oxford University Press, 2007) at 55; Ripstein, Arthur, Private Wrongs (Harvard University Press, 2016) at 87 and 252-53.CrossRefGoogle Scholar

82. In a somewhat similar vein, see FKH Maher & RC Evans, “Hard Cases, Floodgates, and the New Rhetoric” (1985) 8 U Tas L Rev 96 at 107 (where it is noted that part of the answer to floodgates concerns is “an increase in court personnel and a proliferation of other adjudicative bodies” that have taken place in the twentieth century); and 125 (where is it noted that “if there is … a large number of grievances which the law should redress, then it is not for the judges to refuse justice on those grounds, but for the legislature to provide a more efficient administration”).

83. A similar solution has been advocated by Marin Levy regarding what she calls “court-centred floodgates arguments” in a methodical work on the floodgates argument in US adjudication (Marin K Levy, “Judging the Flood of Litigation” (2013) 80 U Chi L Rev 1007, esp at 1072). Levy comes to this conclusion on doctrinal grounds through an analysis of American case law, whereas here it is founded on theoretical grounds and is not jurisdiction-specific. See also the discussion in Toby J Stern, “Federal Judges and Fearing the ‘Floodgates of Litigation’” (2003) 6 U Pa J Const L 377 (where Stern concludes that “arguments that a court is bound to rule lest the floodgates of litigation be opened should be discounted and mostly, if not entirely, abandoned” [422]).

84. See text accompanying notes 8-13 above.

85. Deakin, Simon, Johnston, Angus & Markesinis, Basil, Tort Law, 7th ed (Oxford University Press, 2013) at 30.Google Scholar For other arguments made there regarding the floodgates argument, see at 10-11, 30, 142. To a similar effect, see McLoughlin v O’Brian, supra note 55 at 420 (Lord Wilberforce), 442 (Lord Bridge), and 425 (Lord Edmund-Davies); Maher & Evans, supra note 82 at 107. See also Rachael Mulheron, “Rewriting the Requirement for a ‘Recognized Psychiatric Injury’ in Negligence Claims” (2012) 32 Oxford J Legal Stud 77 at 107-11 (where, in arguing against the recognized-psychiatric-illness requirement for mental injury redress, Mulheron highlights legal tools by which the number of potential claims could effectively be ‘ring-fenced’ if her proposal is adopted).

86. For example, Junior Books Ltd v Veitchi Co Ltd, supra note 10 at 539; R (on the application of Prudential plc and another) v Special Commissioner of Income Tax and another [2013] UKSC 1 at paras 127-28. See also Rothwell v Chemical & Insulating Co Ltd, supra note 8 at paras 17, 50, 79.

87. (1704) 2 Ld Raym 938.

88. Ibid at 955. He continues: “for if men will multiply injuries, actions must be multiplied too, for every man that is injured ought to have his recompense”. Compare the following remarks: “I am not impressed by that fear [i.e. a fear of floodgates opening]—certainly not sufficiently to deprive this plaintiff of just compensation for the reasonably foreseeable damage done to her” (Lord Russell in McLoughlin v O’Brian, supra note 55 at 429); “It would surely be wrong to exclude from probation a claim which is so strongly based, merely because of anxiety about the possible effect of the decision upon other cases where the proximity may be less strong” (Lord Fraser in Junior Books Ltd v Veitchi Co Ltd, supra note 10 at 533); “I see no reason why, if it be just that the law should henceforth accord that remedy, that remedy should be denied simply because it will, in consequence of this particular development, become available to many rather than to few” (Lord Roskill, Junior Books Ltd v Veitchi Co Ltd, supra note 10 at 539).

89. That is, overwhelming magnitude relative to the resources available to the judicial system.