1 ‘No Right Answer?’, hereafter cited as NRA, in Hacker, P.M.S. and Raz, J. eds. Law, Morality and Society: Essays in Honour of H.L.A. Hart (Oxford: Clarendon Press 1977) 58–84;Google Scholar and, to some extent, Taking Rights Seriously, hereafter known as TRS, (Cambridge, Mass.: Harvard U.P. 1977) 279-90. Subsequent references are in the body of the text.

2 Such a view may be inaccurate. In an earlier work — ‘Judicial Discretion,’ Journal of Philosophy, 60 (1963) 624-38 — Dworkin (624-5, note 1) gives this list of his discretionist opponents: Salmond, Pound, Cardozo, Cohen, Llewellyn, and Hart. Pound and Cardozo think discretion is primarily caused by gaps in the law, and Cardozo, for one, seems to have substantive law in mind in many of his examples. But neither think gappiness is the sole source of discretion. Pound recognizes discretion arising from the overlap of conflicting rules: see Pound, Roscoe An Introduction to the Philosophy of Law (New Haven, Ct.: Yale U.P. 1922) 56–64.Google Scholar Cardozo does as well, and seems to approach recognition of other sources of discretion — namely, changes in mores (and the resulting divergence of law and mores): see Cardozo, Benjamin N. The Nature of the Judicial Process (New Haven, Ct.: Yale U.P. 1921) 112-29.Google Scholar

H.L.A. Hart recognizes discretion due to gappiness of substantive law, but stresses also the incompleteness or indeterminacy of the standards governing precedent. This results in alternative sets of substantive law — or, perhaps, alternative candidates for substantive law. If this is due to gappiness, it is gappiness in standards at one remove from those setting forth substantive rights and duties. See Hart, H.L.A. The Concept of Law (Oxford: Clarendon Press 1961)Google Scholar Ch. VII, especially pp. 131 ff.

3 Since Dworkin talks mostly about civil litigation, I will concentrate on it. There is evidence he thinks the dispositive concepts model is not always applicable to criminal prosecution (TRS, 100), though in NRA (59, 63) he gives as an example of a dispositive concept the concept of a crime.

4 One of the things this is meant to rule out is a lawsuit involving an affirmative defense, which may raise claims using a second dispositive concept.

5 Dworkin is inconsistent. He sometimes characterizes a no right answer thesis as one that holds there can be no single right answer ‘to a question of law,’ and he gives as an example of a question of law ‘Is Tom's contract valid?’ (NRA, 58). He also characterizes a no right answer thesis as one that holds that, in some cases, neither the proposition that plaintiff has a right to a decision nor the proposition that defendant has a right to win is true. See ‘Seven Critics,’ in Georgia Law Review, 11 (1977) 1241. There will be in such cases no right answer to the question, ‘Which decision — for plaintiff or for defendant — is the one to which the party is entitled?’ Moreover, if one assumes that Judicial duties to reach a particular decision are always owed to the party that the decision favors (and, thus, are the correlatives of rights to that decision held by the party in question), then there is another question that has no single right answer: ‘Which decision — for plaintiff or for defendant — is the Judge obligated to make?’.

6 On Dworkin's first version, two propositions that look like contradictories — in particular, ‘Tom's contract is valid’ and ‘Tom's contract is not valid’ — may be false. They do not exhaust the possibilities (NRA, 59-60). On this view, then, the two propositions will not be contradictories. Perhaps it would be better to call them ‘competitors,’ since presumably they cannot both be true.

On the second version, two competing propositions may both fail to be true and fail to be false — leaving the possibility that they have some third truth-value, or lack truth-value altogether. On this version, apparently, the competing propositions are contradictories; but in some cases ‘bivalence does not hold’ (NRA, 60-1 ).

Oddly enough, the first version is not, on the dispositive concepts model, a no right answer thesis. Dworkin seems to be aware of this; he treats it as assuming the model is incorrect (NRA, 62-3). As characterized, it should be noted, it is not a view that discretion arises from gaps in the substantive iaw; for he says that on this view, discretion ‘is affirmatively provided by law’ through a ‘distinct category which has discretion as a consequence’ (NRA, 61). What it is to be a distinct legal category is unclear, but, if Dworkin means that the category must be recognized (even tacitly), he is clearly reading too much into the first version. This condition would fail to be satisfied whenever, for instance, some contract clearly falls under no recognized legal category — neither under validity nor under invalidity, for example. The substantive law could be described as gappy because it would contain no legal category (with consequences for Judicial duty) to apply to some things in the real world. As a cover fitting the furniture of practical affairs, it would have holes.

7 Or is invalid. Dworkin indifferently substitutes ‘invalid’ for ‘not valid’ at times, and this seems ill-advised. Whereas ‘Tom's contract is valid’ and ‘Tom's contract is not valid’ are contradictories, ‘Tom's contract is valid’ and ‘Tom's contract is invalid’ do not appear to be contradictories. For it is logically possible that there is a third category — though Dworkin argues that none is in use among lawyers (NRA, 65-6).

8 The only theorists who come to mind that would reject such a thesis are those legal realists who deny, in effect, that someone's contract can be valid or invalid prior to a court's decision of his case.

9 If one supposes Judicial duties are correlates of parties’ rights, it also explains why Dworkin slips quickly into talking about which party is entitled to a decision in its favor (NRA, 61, and see supra, note 5). Granting the remedy is a decision in favor of the remedy-seeker; refusing to grant it (for whatever reason, by the way) decides the suit in favor of the other party.

10 2 R.C.L. 176, 178-179(1914):

‘Errors assigned must, as a general rule, be argued; otherwise they will be deemed waived …. Nor is it enough to assert in general terms that a ruling of the trial court is wrong; a fair argument must be made to prove that it is wrong.’ [Citations omitted]. Re, Edward D. Brief Writing and Oral Argument, 4th ed. (Dobbs Ferry, N.Y. 1974) 78,Google Scholar agrees that the appellant must provide fair arguments.

11 If it becomes apparent before the trial, the plaintiff's failure to establish that he has what is called a cause of action may prevent a trial from taking place. See James, Fleming Jr. and Hazard, Geoffrey C. Jr. Civil Procedure, 2nd ed. (Boston 1977) Ch. 11.Google Scholar

12 Moreover, if this line is adopted, one has already abandoned the idea that, if there is Judicial discretion, it must be because of a gap in the substantive law. For substantive law is, by hypothesis, perfectly determined here. But a duty arising from it is opposed by a duty from another source.

13 Llewellyn, Karl N. ‘A Realistic Jurisprudence — the Next Step,’ Columbia Law Review, 30 (1930) 436-7.CrossRefGoogle Scholar Llewellyn rejects this view of the relative importance of the two types of law; indeed, he suggests that the first type might be reduced to the second. See infra, note 18.

14 G.P. Baker, ‘Defeasibility and Meaning,’ in Law, Morality and Society, 26-57. (See note 1 above.)

15 Indeed, Dworkin is himself committed to the view that there are (rare) cases in which a concept like validity neither quite holds nor quite fails to hold (NRA, 82-4).

16 John R. Searle talks about circumstances of promising ‘voiding an obligation’ in ‘How to Derive “Ought” from “Is”,’ The Philosophical Review, 73 (1964) 43-58. T.V. Carey says the wrongness of the act prevents a prima facie obligation from arising from a promise, ‘How to Confuse Commitment with Obligation,’ Journal of Philosophy, 72 (1975) 281-2. See also Girill, T.R. ‘On the Defeasibility of Duties,’ Journal of Value Inquiry, 12 (1978) 197–209.CrossRefGoogle Scholar

17 See his remarks about contested concepts, TRS, 103-5; and see W.B. Gallie's characterization of essentially contested concepts, which Dworkin, borrows ‘Essentially Contested Concepts,’ Proceedings of the Aristotelian Society, 56 (1955-56) 168-98.Google Scholar

18 Perhaps Dworkin makes something like Llewellyn's mistake. Llewellyn holds

19 Pound:

Cardozo:

And Hart admits that Judges claim rules ‘bind them in deciding a case …’ (135).

20 Moreover, there is no reason to suppose that both propositions are contraries — i.e., that both cannot be true. For there is no reason to suppose that there can not be the legal analogue of a moral dilemma. For this reason, holding that both propositions can be false is not an instance of what Dworkin calls the first version of the no right answer thesis. (See note 6, above.) And the view that they can both be false is not ruled out by Dworkin's claim — for which he argues on the basis of his views about what makes legal propositions true and about the features of advanced legal systems — that of contrary propositions, almost always one will be true and one false (NRA, 82-4).