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Critically assess Dworkin's claim that judges do not have any discretion to make the law.
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| Submitted: Mon Jun 19 2006
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Lucy John-Emele Critically assess Dworkin's claim that judges do not have any discretion to make the law Dworkin's theory on judicial discretion is a component of an amalgam of theories that he advocated in the period before his interpretive turn, those being the Right answer thesis and the Rights Thesis. Judges have no judicial discretion, in the sense of having alternative permissible choices. Where there is no settled law he is not making new law as Hartian positivists would have us believe but rather he is finding the law by a process in which he makes the best sense morally and politically of all past constitutional and legislative enactments as well all judicial decisions in the jurisdiction. When giving judgement in such a case the judge is also simultaneously determining the rights of litigants .There will ultimately be only one right answer in the case because a correct analysis...
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