What Precisely is a 'Hard' Case? Waldron, Dworkin, Critical Legal Studies, and Judicial Recourse to Principle

Abstract

Ronald Dworkin and Critical Legal Studies (CLS) both focus on what Jeremy Waldron terms the “background elements” of the legal system — “the principles and policies that lie behind the rules and texts that positivists emphasize.” Dworkin has long claimed that recourse to the background affords a necessary and sufficient resource to support legal decisions in cases where the foreground is disputed or indeterminate. According to CLS (taken as a general approach), the background is so riven with contradiction as to be capable of supporting any result, and thus inadequate for definitive recourse. In his essay “Did Dworkin Ever Answer the Crits?” Waldron questioned whether Dworkin’s vision of law as integrity in Law’s Empire can overcome the CLS argument that opposing principles suffuse community. Lately, Dworkin’s Justice for Hedgehogs advances a unitary view of interpretation against forms of skepticism that CLS writers vigorously defended. Enlarging Waldron’s critique, this paper contends that the underlying issue is the nature of legal uncertainty itself. Both CLS and Dworkin have failed to appreciate that distinct forms of legal difficulty have varied theoretical implications for judicial recourse to general principles. Both privilege a judge-oriented individualist epistemology of legal principles (as Dworkin’s mythical super-judge “Hercules” exemplifies).

The view offered here rejects the univocal conception of a “hard case” as outside a determinate foreground. Legal uncertainty may be related to developing but yet unresolved aspects of an underlying problem. This paper defends a restrained and participatory, or socialized, epistemology for legal principles, leaving space when appropriate for input from outside the adjudicatory system. This approach recognizes the need for adjustments of belief and conduct to resolve ongoing community conflicts. Rather than appealing to antecedent general principles in all hard cases, judges properly exercise minimalist restraint in the earlier stages of ongoing controversies.

Keywords: Waldron, Dworkin, CLS, legal realism, hard cases