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description= Commentary on monetary policy in the spirit of R. G. Hawtrey;
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t of history in another context we might well be celebrating the fact that the supreme court had finally and expressly repudiated korematsu which it had never fully done before instead roberts s declaration reads like a desperate attempt to change the subject the truth is that this decision and korematsu are a pair prominent instances where the supreme court abdicated its claim to moral leadership following up feldman i just want to make it absolutely clear how closely despite roberts s bad faith protestations to the contrary the reasoning of his opinion follows the reasoning of the korematsu court opinion by justice black from the opinion of chief justice roberts attempting to counter the charge by justice sotomayor in her dissent that the majority was repeating the error of korematsu finally the dissent invokes korematsu v united states 323 u s 214 1944 whatever rhetorical advantage the dissent may see in doing so korematsu has nothing to do with this case the forcible relocation of u s citizens to concentration camps solely and explicitly on the basis of race is objectively unlawful and outside the scope of presidential authority but it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission see post at 26 28 the entry suspension is an act that is well within executive authority and could have been taken by any other president the only question is evaluating the actions of this particular president in promulgating an otherwise valid proclamation this statement by the chief justice is monumentally false and misleading and utterly betrays either consciousness of wrongdoing or a culpable ignorance of the case he is presuming to distinguish from the one that he is deciding here is the concluding paragraph of justice black s opinion in korematsu it is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry without evidence or inquiry concerning his loyalty and good disposition towards the united states our task would be simple our duty clear were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice justice black is explicitly denying that the japanese american citizens being imprisoned were imprisoned because of racial prejudice regardless of the true nature of the assembly and relocation centers and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies we are dealing specifically with nothing but an exclusion order and justice black denies that the japanese americans were sent to concentration camps to cast this case into outlines of racial prejudice without reference to the real military dangers which were presented merely confuses the issue contrary to the assertion of chief justice roberts the korematsu court did not solely and explicitly relocate u s citizens to concentration camps solely on the basis of race justice black explicitly rejected that contention so his attempt to distinguish his opinion from justice black s majority opinion fails indeed mr justice black bases his decision on statutory authority given to the president by congress his inherent powers as commander in chief and his assessment of the military danger of an invasion of the west coast by the japanese korematsu was not excluded from the military area because of hostility to him or his race he was excluded because we are at war with the japanese empire because the properly constituted military authorities feared an invasion of our west coast and felt constrained to take proper security measures because they decided that the military urgency of the situation demanded that all citizens of japanese ancestry be segregated from the west coast temporarily and finally because congress reposing its confidence in this time of war in our military leaders as inevitably it must determined that they should have the power to do just this there was evidence of disloyalty on the part of some the military authorities considered that the need for action was great and time was short we cannot by availing ourselves of the calm perspective of hindsight now say that at that time these actions were unjustified in almost every particular justice black s decision employed the exact same reasoning that the chief justice now employs to uphold the travel ban justice black argued that the relocation could have been motivated by reasons of national security just as chief justice now argues that the travel ban was motivated by reasons of national security justice black argued that the military must be trusted to make decisions about which citizens might be disloyal and could pose a national security threat in time of war just as chief justice roberts now argues that the president must be allowed to make national security decisions about who may enter the united states from abroad neither justice black nor chief justice roberts is prepared to say that singling out a group based on race or religion is unjustified the only distinction between the cases is that korematsu concerned the rights of american citizens 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...
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