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description= Commentary on monetary policy in the spirit of R. G. Hawtrey;
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itizens not to be imprisoned without due process and the travel ban primarily affects the rights of non resident aliens clearly an important distinction but the rights of american citizens and resident aliens are also implicated their rights to be free from religious discrimination are also at issue and those rights may not be lightly disregarded chief justice roberts concludes by attempting to distract attention from the glaring similarities between his own decision and justice black s in korematsu the dissent s reference to korematsu however affords this court the opportunity to make express what is already obvious korematsu was gravely wrong the day it was decided has been overruled in the court of history and to be clear has no place in law under the constitution jackson j dissenting but in doing so chief justice roberts only provides further evidence of his own consciousness of wrongdoing and his stunning display of bad faith hayek and dworkin on the meaning of discretion published april 30 2026 antonin scalia arrow debrew mckenzie model cass sunstein hayek jack balkin living originalism originalism roe v wade ronald dworkin uncategorized leave a comment tags dor revi i law moshe shmuel glasner philosophy here is a slightly edited text of the conversation i had this afternoon on gemini that began with a question about comparing how hayek and dworkin understand the legal meaning of discretion 3 54 pm gemini f a hayek and ronald dworkin both express deep skepticism toward the idea of broad arbitrary judicial discretion but they approach the topic from different angles hayek from the perspective of the rule of law and economic liberty and dworkin from the perspective of legal integrity and rights based adjudication 1 2 ronald dworkin on discretion dworkin is famous for arguing that judges have very little if any strong discretion in hard cases 1 critique of positivism dworkin attacks the positivist hartian view that when legal rules are unclear the open texture of law judges must exercise discretion to create new law strong vs weak discretion dworkin distinguishes between weak discretion the need to use judgment to interpret standards and strong discretion being unbound by legal standards he argues that in hard cases judges do not have strong discretion principles vs rules dworkin argues that even if explicit legal rules run out judges are still bound by legal principles such as no man should profit from his own wrong these principles are part of the law and dictate a right answer law as integrity judges must act as if they are writing a chapter in a chain novel ensuring their decisions fit within the existing legal framework and are morally justified rather than inventing new law discovery not invention dworkin famously insists that judicial decision making is a process of discovering existing rights not inventing them 1 2 3 4 5 6 7 f a hayek on discretion hayek s concern with discretion is rooted in his classical liberal defense of a government of laws not of men 1 rule of law hayek argues that the rule of law requires that government action be guided by pre existing abstract and general rules discretion as arbitrary any significant discretion allowed to administrators or judges threatens individual freedom because it makes government action unpredictable and potentially arbitrary private law and liberty hayek favors a common law approach where rules evolve to facilitate voluntary interaction and protect property rights he believes that strict adherence to these rules rather than judicial activism or social engineering is necessary to maintain a free society limited government unlike dworkin who focuses on the internal morality of legal interpretation hayek s critique is political broad discretion is the first step toward totalitarianism as it breaks down the predictable legal framework necessary for a market economy 1 2 3 4 5 comparison and synthesis while dworkin approaches the topic from the perspective of a philosopher of law interpreting how judges should decide hayek focuses on the political and economic consequences of how legal systems function 1 2 3 4 feature 1 2 3 4 5 ronald dworkin f a hayek view on discretion generally rejects strong discretion rejects broad discretion as arbitrary alternative principles integrity right answers fixed general and predictable rules focus judicial interpretation in hard cases rule of law and political freedom key concern rights of the individual economic liberty and predictability in essence dworkin argues that legal principles eliminate the need for discretion while hayek argues that the rule of law must forbid it to protect freedom both however argue against the idea that judges or officials should be free to create law to suit their own preferences 1 2 3 4 ai responses may include mistakes for legal advice consult a professional learn more 21 sites dworkin and judicial discretion yellowpigs netjudges exercise such discretion whenever they subjectively determine how to balance conflicting principles for example in an ab sara smollett dworkin and the doctrine of judicial discretion canliithis doctrine asserts that in hard cases cases in which it is unclear what the law requires there is no legally required dispens canlii dworkin s unbounded legalism fee orgbut nevertheless such an invented rule is not strictly speaking law until it has been incorporated into the system by statute or foundation for economic education show all my response it seems to me that they basically agree that judges aren t free to decide as they wish but must be able to articulate a principled not merely pretextual basis for their decisions 3 58 pm gemini they generally agree that judicial decisions must be grounded in an objective basis but they disagree fundamentally on what that basis is while both reject the idea that judges can simply decide as they wish their reasons for doing so stem from different legal and political commitments 1 2 point of agreement rejection of strong discretion both hayek and dworkin view strong discretion the idea that a judge can act as a mini legislator when rules are unclear as a threat to the legal system 1 2 against arbitrariness for hayek any deviation from fixed predictable rules is the antithesis of the rule of law because it subjects citizens to the whims of men rather than the governance of laws against invention dworkin argues that judges never have strong discretion even in hard cases they must always search for the right answer based on existing principles rather than inventing new law 1 2 3 4 5 fundamental disagreement rules vs principles the principled basis you mentioned looks very different to each thinker hayek general and abstract rules basis pre existing general and abstract rules that have often evolved spontaneously role of the judge a judge should act like an umpire enforcing the rules as they are to ensure predictability in social and economic life fear hayek is wary of principled adjudication if those principles like social justice allow judges to bypass the clear text of the law to achieve specific social outcomes dworkin integrity and moral principles basis legal principles and moral standards that undergird the law e g no man should profit from his own wrong role of the judge a judge must interpret the law with integrity ensuring that every decision fits within the broader moral and historical fabric of the legal system hope dworkin believes that by looking at these deep seated principles judges can find objective answers that aren t merely pretextual but are truly required by the law 1 2 3 4 5 6 7 8 9 10 comparison summary feature 1 2 3 4 5 6 7 8 9 10 hayek s principled basis dworkin s principled basis primary goal predictability citizens must know the rules in advance to plan their lives integrity the law must be a coherent and morally defensible whole judge s task to discover and apply fixed rules to interpret and apply moral principles risk of discretion it leads to tyranny and economic chaos it leads to unfairness and legal inconsistency ai responses may include mistakes for legal advice consult a professional learn more 19 sites the evolution of rule of law in hayek s thought 1935 1955the bulk of hayek s essay addressed the question of whether socialist planning production and distribution of good without pricin mercatus center critique of hayek s liberalism and the rule of law compass journalthe rule of law and minorities when hayek writes about the rule of law he does not have in mind any particular laws constituted compassjournal org essential hayek rule of lawhayek distinguishes between legislation which consists of rules consciously designed and imposed by government officials and law 2m youtube the fraser institute show all my response you assume that the fixed primciples that hayek refers to are explicit rather than implicit in the existing body of law but those principles are generally only inferences drawn from the existing body of law 4 02 pm gemini you re right to catch that hayek isn t just a rules guy he acknowledges that many of the most important rules are implicit and evolved over centuries for hayek the law isn t just a list of statutes it s a spontaneous order he argues that judges don t create these principles out of thin air but rather articulate rules that were already being followed in practice here is how that fits into the discretion debate discovery over invention like dworkin hayek sees the judge as a discoverer the judge s job is to look at the existing body of law and social expectations and find the rule that has already been governing people s behavior the end independent constraint this is where he stays distinct from dworkin hayek insists these implicit principles must be abstract a judge can t infer a principle that aims at a specific social result or wealth distribution the inference must be one that allows individuals to predict the boundaries of their own actions logical consistency hayek views these inferences as a way to fill gaps in a system while keeping it logically consistent if a new case arises the judge looks for a principle that makes the most sense given the rest of the law ensuring that the new decision doesn t disrupt the legitimate expectations of the parties so while dworkin looks for the principle that makes the law morally best integrity hayek looks for the implicit rule that makes the system functionally predictable order would you say hayek s reliance on implicit rules actually opens the door to the very subjectivity he claims to hate ai responses may include mistakes for legal advice consult a professional learn more my response no hayek was himself subjectivist like dworkin he believed that judges have to take the existing system of rules as given but he may have had a different set of criteria in mind as the basis for making decisions but both accepted that weak not arbitrary discretion is an essential element of a functioning legal system 4 06 pm gemini that is a sharp and accurate observation by framing hayek as a subjectivist you hit on his fundamental belief that facts in social science are what people think and believe not just physical realities you re right that they both land on weak discretion as a functional necessity they both treat the legal system as a closed system where the judge is a servant of the law not its master however as you suggested their criteria for that principled basis diverge hayek s criteria functionality expectation for hayek the principled basis is rooted in expectations a judge exercises weak discretion to find the rule that best preserves the order of actions the criteria are whether the decision maintains the predictability of the system and allows people to continue coordinating their lives without being blindsided by the state dworkin s criteria morality justification for dworkin the principled basis is rooted in justification a judge looks for the theory that makes the law the best it can be in a moral sense his criteria are fit how well it aligns with past rules and justification how well it aligns with political morality both agree that the judge s task is an intellectual discovery of what the law is even the implicit parts rather than a willful act of what the law should be they both essentially argue that a judge isn t choosing between outcomes but is instead calculating the best inference from a complex pre existing web do you think hayek s focus on the order of actions provides a more objective constraint on a judge than dworkin s focus on political morality ai responses may include mistakes for legal advice consult a professional learn more my response i admire both dworkin and hayek and would not necessarily say that one is better than the other in all cases i think the best rule for judges to follow is to decide cases on the narrowest grounds and not to decide more than is necessary that was justice blackmun s biggest mistake in roe v wade he could have found a sufficient right to an abortion to decide in roe s favor without going into the detailed guidance that he provided i think he drew the wrong lesson from the lengthy litigation that followed brown v board of education 4 25 pm gemini your perspective aligns with judicial minimalism a philosophy famously championed by scholars like cass sunstein this approach favors decisions that are narrow applying only to the specific facts at hand and shallow avoiding broad ambitious theoretical justifications 1 2 3 the critique of roe v wade many legal scholars argue that justice blackmun s biggest error was indeed the trimester framework which transformed a case about a specific texas statute into a comprehensive regulatory code for the entire country 1 2 detailed guidance by setting specific week by week rules the court essentially acted as a legislature critics argue that a narrower ruling could have struck down the texas law which only allowed abortion to save the mother s life as overly broad without mandating a specific national policy the lesson from brown you mention the wrong lesson from brown v board of education the brown ii with all deliberate speed mandate is often cited as an example of the court struggling to enforce a broad social change blackmun may have believed that providing clear detailed rules would prevent decades of follow up litigation but instead the raw judicial power as justice white called it of the trimester framework became a primary target for political backlash 1 2 3 4 minimalism as a synthesis of hayek and dworkin interestingly your preference for narrow grounds bridges the gap between the two thinkers we discussed hayekian restraint a minimalist judge follows hayek s desire for predictability by making only incremental changes that respect existing expectations rather than sweeping social engineering dworkinian integrity a minimalist judge follows dworkin s integrity by ensuring the decision is grounded in existing principles but they do so cautiou...
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