In 1975, noted American legal philosopher Ronald Dworkin published an article titled Hard Cases in the Harvard Law Review. Dworkin defined Hard Cases as “those cases in which the result is not clearly dictated by statute or precedent”. He argued that in such cases, courts must refrain from adjudicating on policy arguments and not usurp the role of lawmakers (except in exceptional circumstances).
Dworkin objected to the inclusion of policy arguments in common law adjudication on three major grounds - inconsistency with sound democratic principles, inefficiency and unfairness.
On December 4, 2024, the American Journal of Jurisprudence published an essay on Policies, Principles and Adjudication authored by Professor HLA Hart, a legal philosopher better known for his magnum opus The Concept of Law. This recently published essay was initially considered ‘lost’. It was recently found amongst Dworkin’s papers at Yale University’s archives by Samuel Burry. Though it had been catalogued in Dworkin’s files, it was not accessible to commentators of the Hart-Dworkin debate.
Burry’s introductory essay on Policies, Principles and Adjudication, published for the American Journal of Jurisprudence, examines the probable timeline in which the paper was written, the possible reasons why the essay was found in Dworkin’s files, its significance in the Hart-Dworkin debate, the reasons for the paper remaining unpublished and its historical background.
In the “lost essay”, Hart offers a detailed critique of Dworkin’s Hard Cases and expands on his arguments that were featured in the postscript to The Concept of Law. He counters the three major objections posed against the inclusion of policy in common law adjudication by Dworkin.
The first objection of Dworkin was that the inclusion would be inconsistent with sound democratic principles, as judges (who are not elected by the people) have to resort to law-making in such cases and would thus be usurping the role of elected lawmakers. Hart disagrees with this objection by pointing out that judges in such cases would merely be exercising their ‘weak discretion’ as they would have to weigh balancing competing considerations while developing on pre-existing legal standards. Therefore, it would not involve judicial law-making, but only the interpretation of existing legal principles.
The second objection posed by Dworkin was that the inclusion of policy arguments in common law adjudication would be ‘inefficient’. To counter this, Hart relied on the judgment in Conway v. Rimmer as an example of the House of Lords balancing different policy considerations, and stated that it had been “perfectly well investigated” by the courts without the influence of lobbies or mailbags. Thereby, he believed that courts were well equipped to examine balancing different policy considerations and that the argument of inefficiency was flawed.
The third objection against the usage of policy arguments was that it would result in unfair outcomes. Dworkin believed that judges would have to resort to retroactive law-making as they would be recognising rights that did not exist at the time the dispute arose. According to him, such an exercise would create a ‘surprise’ to the litigants. Hart counters this by explaining that judges in such cases do not make laws, but only discover it. Though he concedes that judges may differ in weighing policies, just as they do in weighing rights, he states that this does not lead a decision being termed as retroactive or unfair.
Indian context
In India, courts generally refrain from questioning the legislature’s wisdom unless it violates fundamental rights or any provisions of the Constitution. Dworkin’s scholarship on Hard Cases has been applied by the Supreme Court of India in multiple judgments. The principles were particularly important in understanding the inherent limitations of the power to do complete justice under Article 142 in M Siddiq v. Suresh Das (Ram Janmabhoomi Temple judgment). The Supreme Court noted that when a court has to adjudicate on Hard Cases, it must follow an interpretation of law that “best fits and justifies the existing legal landscape”. But where the legal principles in the status quo are inadequate for the court to do complete justice, it may supplement the existing legal principles with ‘principles that are grounded in equitable standards’.
Another instance of its usage may be found in Justice Sikri’s concurring opinion in Common Cause v. Union of India, wherein the Supreme Court looked into the legality of passive euthanasia. Justice Sikri labelled it as a “Hard Case” and stated that the discretion exercised by the Court must thus be guided by the enacted law.
When faced with similar cases, apart from looking into the applicability of the principles laid down by Dworkin, Indian courts must now also consider the critique expounded by Hart which counters the narrative that judges cannot adjudicate effectively on policy matters in Hard Cases. Hart’s lost essay, apart from being a great addition to legal scholarship and philosophy, can now also be used by Indian courts in understanding the contours of judicial activism.
Jannani M is an Advocate practicing before the Madras High Court.