KLATT - Taking Rights Less Seriously

Taking Rights less Seriously.
A Structural Analysis
of Judicial Discretion
MATTHIAS KLATT
Abstract. This article investigates the concept and the construction of judicial
discretion. The strengths and weaknesses of both Dworkin and Hart are analysed,
and in view of these, it is argued that a full picture of judicial discretion is between
the two extremes. Thus, a moderate theory of judicial discretion is maintained
which is based on achievements by Robert Alexy (2002b). The article develops a
balancing model of discretion and relates it to the theory of legal argumentation.
The limits of discretion and the relation between structural (strong) and epistemic
(weak) discretion are addressed in detail, both with illustrations from the jurisdic-
tion of the German Federal Constitutional Court.
I. Introduction
1. Discretion in Law
Discretion, understood as a leeway within a certain framework, plays an
important role in many legal contexts. Ideal legal systems might be able to
do without it, but for existing legal systems discretion remains a conditio
sine qua non. Thus, it is a universal and unavoidable problem. It occurs in
all three branches of government (Barak 1989, 12): In the legislature, which
acts in the framework of the constitution and of supranational law; in the
judiciary, which acts in the framework of the constitution, statutes and
precedents; and in the executive authority (Arai-Takahashi 2000), which
acts within the framework of the constitution, statutes, and regulations. In
addition, discretion occurs in multilevel legal structures: Member states
have discretion in the transposition of EC law (Somsen 2003) and a margin
of appreciation in the implementation of the European Convention of
Human Rights (Arai-Takahashi 2002).
In this paper, I will focus on judicial discretion. However, I assume that
the structural analysis I pursue offers insight into the general structure of
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350 Main Street, Malden 02148, USA.
discretion (Raabe 1998, 46, 475), which should make the ndings of this
paper applicable, cum grano salis, to other types of discretion. Legal systems
differ widely in character and scope. Some sources of discretion are unique
to specic types of legal systems. Case law, for instance, has its very own
sources of discretion (Barak 1989, 7783). In this paper, however, I will
focus on more general and universal aspects.
2. Discretion as a Relative Concept
Dworkin compared discretion to a hole in a doughnut. It does not exist
except as an area left free by a surrounding belt of restrictions (Dworkin
1978, 31). Discretion, therefore, is a relative concept. It refers to a given
standard or authority against which the area of freedom can be measured.
Interpreting discretion as a relative concept is equivalent to accepting that
discretion is limited, whatever those limits may be. In the words of Lord
Scarman:
Legal systems differ in the width of the discretionary power granted to judges; but
in developed societies limits are invariably set, beyond which the judges may not
go. Justice in such societies is not left to the unguided, even if experienced, sage
sitting under the spreading oak tree. (House of Lords [1980], 1 All E.R. 529,
especially 551)
Following this well-established approach, I will view discretion from the
outset as a limited or relative concept. Consequently, I will forgo any
discussion of the radical sceptical view of certain currents in legal realism
or in the free law movement (Kantorowicz 1906) that discretion is unlim-
ited and allows for absolute freedom. Any position that considers discre-
tion absolute would have to interpret adjudication as wholly arbitrary,
which remains a somewhat implausible opinion.
3. Importance and Relevance
Questions of the theory of legal argumentation are very closely linked to
essential problems of general legal philosophy. This is particularly true of
judicial discretion. It is not merely an argumentation-theoretical question,
but raises the fundamental issues of the separation of powers, the binding
of judges to the law, the distinction between hard and easy cases, and the
separation of interpretation and law-making. It is no coincidence that
judicial discretion has come to play the prominent role it enjoys in the
debate on the concept of law. Furthermore, an adequate theory of judicial
discretion is necessary to provide the basis for the legitimacy of decisions
and the claim for correctness implicit in every judgment (Alexy 1998;
critical Neumann 2004, 9, 11). Implementing judicial discretion into a legal
507 A Structural Analysis of Judicial Discretion
2007 The Author. Journal compilation 2007 Blackwell Publishing Ltd. Ratio Juris, Vol. 20, No. 4
system has advantages and disadvantages. On the one hand, it allows for
exibility in the application of the law and for justice in a particular case
(Wellman 1997, 144ff.). On the other hand, it undermines the laws con-
tribution to social stability and makes it vulnerable to particularistic moral
convictions.
4. Survey
This article does not pursue an empirical or legal-sociological perspective
(Hawkins 1992). Rather, it develops an analytical-normative analysis, i.e., it
investigates the concept and the argumentation-theoretical construction of
judicial discretion. This analysis consists of three elements. I will begin by
analysing the debate between Hart and Dworkin (II), and continue by
investigating the merits and weaknesses of the respective positions (III).
Based on these, I will conclude by arguing for a moderate view and a full
picture of judicial discretion (IV).
II. The Debate between Hart and Dworkin
Ronald Dworkin and H.L.A. Hart disagree on a number of issues, but
their debate on judicial discretion is among the most fundamental ones.
Legal positivism from Austin to Hart placed emphasis on the role played
by judicial discretion (1). Dworkin, among others (Sartorius 1968; 1971;
Hughes 1968), has challenged that view (2).
1. Hart on Discretion
According to Hart (1994, 12447), rules have a core of settled meaning and
a penumbra of vagueness and open texture, in which the rules do not
supply unequivocal guidance. In the penumbra, the question whether a
given rule applies to a particular case has no determinate answer in the
law. The judges, therefore, have discretion as far as the penumbra reaches.
Within this area, they have to refer to extra-legal standards and, acting in
an almost legislative fashion, choose the decision that seems best to them.
While judges are bound by the core of a rule that constitutes a standard
against which their decision can be measured and that they are not free
to disregard, the open texture of law leaves them a lawmaking power
(Hart 1994, 132, 272; 1958, 613ff.).
We have to be aware that Hart does not limit his discussion to hard
cases, i.e., cases that are controversial in the sense that reasonable and
informed experts may disagree about which answer would be legally
correct. He does not refer to the fact of dissent on what the law says.
Instead, Hart claims that the law in such cases is fundamentally incom-
plete, that it simply provides no answer. It remains silent on the legal
508 Matthias Klatt
question at issue (Hart 1994, 252). Therefore, the case can only be decid-
ed by the application of extra-legal standards, e.g., moral standards and
values (Kelsen 1967, 3535; Schauer 1991, 222). Judges rely on discretion to
bridge this gap by making a new law; they do not, as Raz noticed, convert
morality into pre-existing law (Raz 1986, 1110, 1115ff.). For most legal
positivists, the need for discretion is the counterpart to the absence of a
right answer (Bix 1995, 26; Barak 1989, 40ff.; Schauer 1991, 222; Kress 1989,
296ff.).
Nevertheless, Hart makes a clear distinction between discretion and
mere arbitrariness. Furthermore, judges discretion is different from that of
legislators. Judges do not have the power to introduce large-scale reforms
or new codes as do legislators. Moreover, their powers are subject to many
constraints and substantive limits which narrow their choice (Hart 1994,
273). Discretion, as Raz has put it, does not imply acting whimsically, and
it does not allow for the tossing of a coin (Raz 1972, 847ff.).
2. Dworkin on Discretion
Dworkin addresses the issue of discretion in the context of his critical
evaluation of legal positivism. He actually lists the doctrine of discretion as
a key tenet of legal positivism (Dworkin 1978, 17). Dworkin distinguishes
three senses of discretion (ibid., 31ff.). In the two weak senses, discretion
means judgment and nality. The rst weak sense (judgment) con-
cerns the fact that the standards a judge must apply cannot be applied
mechanically but demand the use of judgment. The second weak sense
(nality) means that judges have nal authority to make a decision and
that their decision cannot be reviewed or reversed by any other official.
This sense of discretion, of course, would only apply, if it does, once
appeals have been exhausted. Dworkin readily acknowledges that these
two weak senses of discretion do apply, but to him, they are trivial and
irrelevant (ibid., 38, 70). Discretion as judgment in particular is essential in
every act of adjudication (ibid., 119, 468; Dworkin 1986a, 353ff; 1978, 69).
In this respect, there is no difference between the legal positivists and
Dworkin.
However, Dworkin objects to a third sense of discretion, namely, the
view that there are issues in which judges are completely free from legal
standards. Strong discretion does not arise from the vagueness of some
legal norm or from the authority to give the nal word in applying it.
Instead, it arises in the absence of a legal standard (Dworkin 1978, 32).
According to most legal positivists, strong discretion exists when there are
two or more legal answers, each of which is equally correct as far as the
law is concerned, thus forcing the judge to make his choice on extra-legal
grounds.
In contrast to Hart, Dworkin denies the existence of strong discretion.
According to his general interpretative and principle-theoretical approach
to law, the law is never incomplete or indeterminate. Therefore, judges
never have occasion to step outside the law and exercise lawmaking power
in order to reach a decision. Herculean jurisprudence does not leave judges
with the liberty of using personal predilections or favoured political goals
as a proper basis for adjudication (Dworkin 1986a, 152, 255ff., 378). Even
in hard cases, judges are obliged to seek out and give effect to existent legal
rights, not to invent them (MacCormick 1994, 246).
According to Dworkin, Hart errs when inferring strong from weak
discretion. In hard cases, the content of a legal norm is controversial, so
there is weak discretion. Reasonable men disagree on the correct applica-
tion of a legal norm. However, it does not follow from the existence of
controversy that there is strong discretion, i.e., that there is no standard to
which the judge is legally bound (Dworkin 1978, 36, 327). Hard cases may
be controversial, but that does not imply that judges must adopt extra-legal
standards to decide them (ibid., 330).
Dworkin points out that strong discretion does not imply that a deci-
sion cannot be criticised. Strong discretion does not mean that anything
goes. Still, some standards of rationality, fairness, and effectiveness can be
applied. Nevertheless, these standards, according to Dworkins strong
sense of discretion, are not part of the legal duty of the judge; they are
imposed from outside the law (ibid., 33).
However, Dworkin is partly wrong in ascribing this view to legal
positivists, because positivists generally accept standards of rationality as
minimal legal standards. Judges are not legally free, as Greenawalt points
out, to make wholly irrational or grossly unfair decisions (Greenawalt 1975,
366). Even in hard cases, legal standards rule out some possible decisions
(Raz 1972, 843). Therefore, as far as this category of decisions is concerned,
the essence of strong discretion is not that it is beyond criticism. Dworkins
denition of strong discretion is misleading in that it claims the complete
absence of any standard for all classes of hard cases. If positivists agree
that even in hard cases the legal standards of rationality rule out some
decisions, then the key feature of strong discretion cannot be the absence
of a standard. Instead, it is the indeniteness of legal standards. Legal
positivists do not maintain that there is an absence of standards, but rather
that the laws do not identify any decision as the correct one. According to
them, judges are forced to choose between several equally correct decisions
(Raz 1972, 843). Thus, it is clear that Dworkins attack on strong discretion
rests principally on his one right answer-thesis.
III. Strengths and Weaknesses
Both Dworkins and Harts view have strengths and weaknesses.
510 Matthias Klatt
1. Dworkins View
Dworkins attack on strong discretion hinges on his proving two points
(Raz 1972, 845; Greenawalt 1975, 367): First, that all grounds of a decision
are legal grounds. Law, by necessity, has its very own ultimate standard
of correctness, so that judges neither have nor are entitled to apply
extra-legal standards. Second, that these grounds and standards lead to
a single right answer. These two questions are to remain separate. The
rst is concerned with a problem that can be called the internality of
the standards, the second with the problem of the deniteness of the
standards.
While I agree with Dworkins answer to the rst question, I object to his
answer to the second. The question of the internality of the standards is
identical with the problem of the concept of law, a problem which cannot
be discussed in detail here. I will base my position on the assumption that
Dworkin is correct in stressing that the concept of law is intrinsically and
necessarily linked to morals.
Raz argues that legal positivists do not deny the role of principles in
a legal system (Raz 1972, 845). If this were true then the exact extent of
discretion, insofar as it stems from the special character of legal principles,
would depend on the legislators decision to incorporate principles. In this
sense, legal positivists tend to see the incorporation of legal principles into
a legal system as contingent. This position, however, is challenged by the
thesis that every legal system that is at least minimally developed neces-
sarily comprises principles (Alexy 2002a, 704).
According to the connection thesis defended by Alexy, the concept of
law is to be dened such that moral elements are included (Alexy 2002a,
218). Therefore, when Raz objects to Dworkin that his denial of strong
discretion implies that all the reasons that the courts are entitled to use
in justifying decisions are part of the law (Raz 1972, 844), his objection
is correct, but misses the point. It is correct because the intrinsic link
between law and morals makes any social, moral or political standard
which judges are entitled to take into account for some legal purpose a
legal one. It misses the point, though, asdue to the connection thesis
there is no need to defend certain limits of law, as Raz does, in order
to exclude standards judges are entitled to apply from being legal stan-
dards. Thus, Razs thesis of the limits of law is no argument against
Dworkins position.
However, the fact that all standards which judges are entitled to apply
are intrinsic parts of the law and thus legal standards is insufficient for
Dworkins denial of strong discretion. In addition, he has to prove that
these standards yield a single correct answer. Otherwise, internal standards
in hard cases would give judges different possibilities, all of which are legal
to the same degree. Moreover, they would have to choose between them on
extra-legal grounds because these internal standards would not be denite,
and this would contradict Dworkins rst point, namely, the internality of
the standards.
Dworkin needs a second thesis, i.e., the one right answer-thesis or the
thesis of necessary deniteness of legal standards. Dworkin maintains that
the set of legal principles as a whole tends to result in single right answers
to almost all legal questions (Dworkin 1986a, viiiix, 412; 1991, 84). The
incorrectness of this second thesis has become almost a commonplace in
current legal theory (Finnis 1987, 37174; Putnam 1995, 6ff.; Marmor 1995,
547; Bix 1995, 96106; Koller 1997, 180ff.; Kelsen 1992, 80ff.). It is, however,
not as misguided as some positivists would have it. Greenawalt, for
example, argues that one might initially suppose that Harts model would
give the judge a great sense of freedom, telling him that in some cases
he has strong discretion to choose and to apply extra-legal standards.
By contrast, the judge in Dworkins model, according to Greenawalt, may
seem a fettered creature, always restrained by a coherent, all-covering set
of principles. Greenawalt argues that, paradoxically, Dworkins position
might have precisely the effect of liberating the judges simply because he
invites the judges to give greater weight to amorphous moral principles
and social policies (Greenawalt 1975, 362).
However, Greenawalts argument remains unconvincing. The implemen-
tation of principles into the legal system does not increase judges freedom.
On the contrary, it places further limits upon that freedom. After all, they
would be forced to consider additional issues when reaching their verdict.
The notion of an increased freedom would only be justied if the appli-
cation of principles were to imply the use of personal, subjective views
instead of objective procedures. Nevertheless, this assumption is mistaken.
Robert Alexy and his followers have demonstrated that the weighing of
principles is indeed an objective, intersubjectively valid method that
has nothing to do with irrationality (Alexy 2003, 43349; 2002b, 405). There-
fore, Greenawalts picture of the consequences of the implementation of
principles is wrong. Principles have the force to be additional fetters on
the judges. Thus, it is also true that Dworkins model tends to be more
democratic than Harts does.
However, these further fetters are not unambiguous: They would not
lead to one correct answer in every case. It is remarkable that originally
Dworkin did not use positive arguments in support of his position, relying
on negation instead, i.e., disproving the positivistic no-right-answer thesis
(Dworkin 1986b, 11945). Nevertheless, even if the no-right-answer thesis
were wrong, that would not be sufficient proof for Dworkins claim of one
right answer. One would still have to disprove the possibility of several
correct answers.
Dworkins early position rests on his bivalence thesis, which posits that
in any given case certain concepts either do or do not apply (Dworkin
512 Matthias Klatt
1986b, 11928). Dworkin acknowledges that there are many decisions that
a judge has no duty to make either way. In doing so, he admits that there
are decisions where the bivalence thesis does not hold, leaving a logical
space between the bivalence poles. Nevertheless, he claims that in these
cases there are so-called dispositive concepts which entail a prima facie duty
on the part of judges to decide either in favour of the plaintiff or the
defendant. Dispositive concepts have the function of closing the logical
space by making it impossible to deny both bivalence poles (ibid., 125). As
a result, either the positive bivalence pole or the negative is true; therefore,
there is a single right answer. A contract, for example, is either valid or it
is not.
It should not be denied that such dispositive concepts exist. However,
Dworkins reliance on them implicitly limits his universe of discourse to
such concepts. There are, however, many hard cases in which there are no
dispositive concepts that could diminish the logical space by assigning the
case to either one of the poles. On the basis of the so-called discursive
theory of legal argumentation, which I will adopt here, it is widely
accepted that the rules and forms of legal argumentation in many cases
lead to no result at all; even when they do, they in no way guarantee
conclusive certainty.
There are several reasons for this indeterminateness, the most important
being that the rules of discourse do not stipulate the normative premises
from which the discourse is going to start (Alexy 1989, 287ff.). Therefore,
we have to distinguish three discursive modalities: the discursively nec-
essary, the discursively impossible, and the discursively possible. It is only
in the rst two cases that we get a single right answer. In the third
casethe discursively possiblethe outcome of legal discourse is an area
of at least two equally legal possibilities. Dworkins bivalence thesis
ignores exactly this latter option. His theory does not allow for the
discursively possible. Instead, it claims (but is unable to justify) that there
are only two modalities: impossible or necessary.
The same error occurs in Dworkins later defence of the one right answer
claim which can be found in his theory of law as integrity and his judge
Hercules. This theory has the great strength of focussing on principles as
a distinct form of legal norms. If, however, we consider the matter based
on a principle-theory of law, Dworkins one-right-answer thesis is coun-
terintuitive. Principles are optimization requirements (Alexy 2002b, 47ff.,
679). They can be satised to varying degrees. Rules, by contrast, are
norms which are always either fullled or not. Dworkins principle of
bivalence applies to rules but not to principles.
Dworkin tries to salvage his theory by referring to the legal system as a
whole. This holistic approach is correct in that normative systems in
general follow a holistic pattern (Brandom 2000, 15ff.; Klatt 2004b, 16983).
However, the three discursive modalities also apply to the overall system.
Even complete sets of principles are put to use by weighing and balancing
which is also a discursive argumentation procedure. Whenever one applies
principles, one has to rely on a discursive procedure. Again, at the end of
his balancing of all relevant principles, judge Hercules would face three
different situations: In some cases, his decisions would be discursively
necessary, in some impossible, but in some only possible. In the latter
scenario, there would not be a single right answer.
The strengths and weaknesses of Dworkins theory in a nutshell: While
Dworkins thesis of internality of all legally relevant standards is correct,
his one-right-answer thesis is applicable only to discursively necessary or
impossible decisions, and wrong for discursively possible ones.
2. Harts View
As far as the three modalities are concerned, Hart is closer to the truth than
Dworkin. He allows for the discursively possible since he acknowledges
that for specic cases, the law remains indenite. In addition, he provides
a categorization of these hard cases whenever the law leaves a logical space
between the bivalence poles. The vagueness of language and the open
texture of law are recognised as sources of discretion.
On the other hand, Hart tends to ignore or diminish the role of principles
in the legal system, and he denies the necessary connection between law
and morals. Therefore, he looks for the solution for hard cases outside the
law, although it is to be found inside the law according to the principle-
theoretical position adopted here. Because of these weaknesses, Hart grants
judges more freedom than is necessary, namely, the freedom to decide hard
cases on extra-legal grounds. Thus, as far as the separation of powers is
concerned, Harts position is more problematic than Dworkins.
3. The Need for a Moderate View
Both Dworkins and Harts model have strengths and weaknesses. Because
of their respective weaknesses, it would not be an option simply to adopt
one of these existing models. While Hart overestimates the law-making
parts of adjudication, and thus grants judges too much discretion, Dworkin
underestimates the law-making parts and argues for too little discretion.
Neither Dworkin nor Hart give a full and correct picture of judicial
discretion. We therefore need a third type of model. We must develop a
more inclusive account of discretion. Such an inclusive account would have
to combine the strengths of both models. I will present the outlines of such
a moderate view in the next section.
IV. A Full Picture of Judicial Discretion
A moderate model of judicial discretion will combine the strengths of the
two models discussed above. The new models principal aim is a theory of
514 Matthias Klatt
the structure of judicial discretion. It starts out from a combination of
discourse-theoretical insights from the theory of legal argumentation on
the one hand with elements from Alexys theory of constitutional rights on
the other. The latter is essential for this purpose as it provides insight into
the general structures of legal systems containing principles.
The relationship between judges and the law can be analyzed via three
basic scenarios. Alexy uses these scenarios to examine the relationship
between constitution and legislature (Alexy 2002b, 391). However, the
scenarios can also be useful in the consideration of the relationship
between judges and the law, because both relationships follow the same
structure (Raabe 1998, 475, 88). Moreover, we may assume that this
structure applies to all types of discretion in general, regardless of the
respective legal system.
In the rst of the three scenarios, the law contains no substantive
commands or prohibitions to limit the judiciary. The latter enjoys free
reign, i.e., to derive any substantial result from the law, so long as it
observes the legal provisions relating to its competence, procedures, and
forms. This is the purely procedural model of judicial discretion. Discretion
is unlimited, as far as substantive matters are concerned.
This purely procedural model is incompatible with the judges legal
obligation to respect and enforce legal rights, since it is dened as the
absence of any substantive legal obligation. Thus, in Dworkins terminol-
ogy, it would not take rights seriously at all. We may assign this model, the
rst scenario, to a radical sceptics perspective on legal interpretation.
Radical scepticism argues that by its very nature law is completely inde-
terminate, that when interpreting the law any outcome would be con-
ceivable. This would make adjudication a mere farce, objectivity and
correctness but tricks of the mind. Judicial discretion would only be a
friendly term to mask the arbitrary nature of adjudication. However, as I
have proven elsewhere, radical scepticism is in error (Klatt 2004a; 2004b).
A purely procedural model of discretion must be rejected, if legal systems
are to incorporate something that deserves the name of a legal right. The
rst scenario obviously grants judges far too much discretion.
The counterpart to a purely procedural model is a purely substantive
one. Here, the law contains a command or prohibition in respect to every
conceivable decision, leaving no room for discretion. Dworkins theory of
judicial discretion rests on this second scenario. He argues that there is a
single answer assigned to each legal problem. The law itself settles all
substantial matters. Thus, the judiciary does not have discretion. As this
second scenario rests on the erroneous one-right-answer thesis, granting
too little discretion, it also has to be rejected.
In the rst scenario, the judiciary enjoys complete liberty as long as
procedural requirements are met. In the second scenario, the judiciary has
no liberty when it comes to substantive legal questions. The third option
would consist of some issues being left at liberty and others not, that is,
others being commanded or prohibited. This is the substantive-procedural
model.
Harts theory can be assigned to this third model, because it distin-
guishes easy cases where the core of settled meaning of a rule provides
unequivocal guidance, and hard cases which demand the use of discretion
and the application of extra-legal standards. Thus, his theory is capable of
commanding some things, prohibiting others, and neither commanding
nor prohibiting a third category. Nevertheless, Harts position must be
rejected as well because of its weaknesses mentioned above. This is not
tantamount to an overall rejection of the third scenario, because there are
several feasible models within this scenario. As a result, we may add one
requirement to a full picture of judicial discretion: It must follow the third
scenario, i.e., it must be a substantive-procedural model.
In the remaining parts of this section, I will clarify the concept of judicial
discretion (1) and elaborate that concept further by addressing issues such
as the relation of discretion and legal interpretation (2) and the relation of
discretion and the further development of the law (3). I will conclude by
investigating the limits of discretion (4) and the relation between the two
most important types of discretion (5).
1. The Concept of Judicial Discretion
a. Structural and Epistemic Discretion
In a substantive-procedural model, the laws determinateness is threefold.
First, certain decisions are prescribed. Second, certain decisions are pro-
hibited. Third, certain decisions are neither prescribed nor prohibited. In
the third category, it is permitted to make a certain decision or to refrain
from it in favour of a different decision. Judicial discretion thus consists
precisely of those alternatives in respect of which the judiciary has been
left at liberty. One could also call this discretion the sphere of judicial
freedom (Alexy 2002b, 393).
It is exactly this freedom that Dworkin calls strong discretion. It is
identical with what Alexy calls structural discretion (Alexy 2002b, 310).
I prefer the latter term as it emphasizes the source of that type of
discretion, namely, that the law itself leaves open the choice between
different, but equally legal possibilities. Structural discretion is consti-
tuted by the limits of what the law denitely commands and prohibits
(Alexy 2002b, 393).
Structural discretion has also been conceptualized by Kelsen, who points
out that in the hierarchy of norms the determination of higher-level norms
is never complete. Thus, there must always remain a range of discretion,
sometimes wider, sometimes narrower, so that the higher-level norm has
516 Matthias Klatt
simply the character of a frame to be lled in by the application of acts
(Kelsen 1992, 78; Paulson 1990, 1435).
What Dworkin labels the rst weak sense of discretion, namely, discre-
tion as judgment, can be better described in Alexys terms as epistemic
discretion. Discretion as nality (second weak sense in Dworkins termi-
nology) has nothing to do with the structural-epistemic distinction, but
with the question as to whether a decision is subject to review by a higher
court. This reveals that under the heading weak discretion Dworkin
combines two issues which for systematic reasons had better be separated.
The epistemic-structural distinction concerns the sources of discretion,
while discretion as nality concerns the function of discretion in the
hierarchy of courts.
Epistemic discretion arises from the limits of our capacity to know the
limits of the law. There are two types of epistemic discretion, depending on
the type of knowledge to which discretion is related. This knowledge can
be either empirical or normative.
That judges have an epistemic discretion with regard to empirical
knowledge means that they are entitled to use uncertain empirical com-
mitments in the internal justication of their judgement (Raabe 1998, 53).
From an argumentation-theoretical perspective, discretion has the task of
externally justifying the premises concerning empirical knowledge (ibid.,
208). In many legal systems, judges have that empirical discretion consti-
tuted, for example, by exclusionary reasons (Raz 1999, 3548; Perry 1989;
Moore 1989).
It is not so self-evident, however, that judges have an epistemic discre-
tion with regard to normative knowledge. If this was the case, they would
be entitled to err on what the law, at the structural level, commands,
prohibits, and permits, and still make legally correct decisions. Whether
and to what extent such discretion exists will be considered below. At this
point, the two kinds of epistemic discretion already allow us to explain the
different functions of higher and lower courts. The evaluation of facts, the
hearing of witnesses, the hearing of evidence, etc., is primarily the function
of the courts of rst instance, while the courts of higher instance are bound
by the facts established by the lower court.
To that extent, the lower courts have epistemic-empirical discretion, i.e.,
they are entitled to evaluate and their evaluation is nal. On the other
hand, higher courts generally decide questions of law. Their primary
function is to control and review the lower courts with regard to questions
of law. Thus, higher courts, unlike the lower courts, have epistemic
discretion on normative knowledge. These considerations convey an
important message: A theory of discretion must account for the differences
and rank orders between higher and lower courts, or, more generally
speaking, for the different functions of officials and authorities in the legal
system.
b. Discretion as Competence
We can understand both structural and epistemic discretion as distinct
competences of the judges. The concept of competence is problematic and
is still not fully determined in current legal theory. I will use a basic
concept of competence here. Someone is competent if he has the legal
position conferred by a legal norm to make a new norm valid by a specic
action (Sieckmann 1990, 45ff.; Raabe 1998, 52). This action is, in the case of
judges, the delivering of a decision. Judges have that legal position due to
a competence norm like Art. 92 Basic Law.
1
In the case of structural discretion, judges decide a legal problem on
which the given set of legal norms remains silent. They validate thereby a
new norm, at least in the sense that decisions in each future case that
correspond in all relevant matters to the one decided should go the same
way. In the case of epistemic discretion, they make a norm commanding
that some particular empirical or normative knowledge, even though
uncertain, should be treated as certain. In this way, we can distinguish
between structural and epistemic competence. This distinction mirrors the
distinction between structural and epistemic discretion.
To understand discretion as competence explains the law-making power
of judges. They have that power precisely to the extent of their structural
or epistemic competence.
c. The Balancing Model of Discretion
In order to get a full picture, judicial discretion has to be anchored in the
system of weighing and balancing legal principles. This does not mean that
the scope of the analysis proposed here was limited to public law, oreven
more narrowlyto the application of constitutional rights. Rather, discre-
tion itself is seen here as a formal principle that is balanced against other
principles, regardless of the area of law in which the balancing takes place.
The principle theory of rights distinguishes formal and material prin-
ciples (Alexy 2002b, 82). Formal principles, like the principle of democracy
or the principle of the separation of powers, do not have substantial
content. Instead, they state how content is to be established. In this way,
formal principles can also be called procedural. Under the substantive-
procedural model (Alexy 2002b, 350, 93), they are a necessary part of
the law. Judicial discretion is a formal principle (Raabe 1998, 207, 326;
Sieckmann 1988, 47). It does not give substantial answers to concrete
legal problems, but states who is entitled to establish those answers.
1
Art. 92 Basic Law reads: The judicial power shall be vested in the judges; it shall be
exercised by the Federal Constitutional Court, by the federal courts provided for in this Basic
Law, and by the court of the federal states.
518 Matthias Klatt
Principles compete with other principles. We have to distinguish
between two scenarios. In the rst scenario, two material principles
compete with each other, e.g., two substantive constitutional rights. This
conict has to be resolved via a balancing and weighing procedure. The
outcome of the balancing can be threefold. The rst principle may have a
higher concrete weight than the second, and vice versa. In these cases,
there is no structural discretion. Rather, the law denitely commands that
priority should be given to the principle that has the higher weight.
Nevertheless, the outcome may well be that both material principles
have the same concrete weight. Alexy has called this a stalemate-case, i.e.,
a case in which there is structural discretion because the law neither
commands nor prohibits following either of the two conicting principles.
Thus, the rst scenario is characterized by a conict between two material
principles which can leadin stalemate-casesto structural discretion.
In the second scenario, the conict is not between two material prin-
ciples, but between a material principle and the formal principle of
epistemic discretion. Material principles like substantive legal rights prima
facie exclude epistemic discretion as a ground for limiting legal rights while
the latter prima facie requires just this competence (Alexy 2002b, 417; Raabe
1998, 207, 326). If in a concrete case the outcome of the balancing process
is such that the formal principle has precedence over the material prin-
ciple, then there is a denite epistemic discretion in that case (Alexy 2002b,
313, 414; Raabe 1998, 207). If, on the contrary, the material principle has
precedence, then there is no denite discretion.
These scenarios reveal an interesting difference: While in the conict
between two material principles (rst scenario) discretion is only possible
as a result of the balancing procedure, discretion as such (as a formal
principle) is the object of the balancing procedure in the second scenario.
Specically, in the second scenario epistemic discretion is as prima facie
discretion an object of the balancing, and as denite discretion a possible
outcome of the balancing.
The distinction between prima facie precedence and denite precedence
of principles is extremely important. It implies that the exact scope of
judicial discretion in a single case is always the result of this balancing
process. We therefore have to distinguish prima facie discretion from
denite discretion. The former is the input material for the balancing
process, while the latter is the outcome in a concrete case.
This is true for both structural discretion and epistemic discretion. The
boundaries between the three realms of what the law commands, prohibits,
and leaves open and the limits of knowledge-related competence are to be
settled by balancing and weighing the formal and material principles
concerned. Thus, we could label the balancing model of discretion as a
procedural or discursive model. It has a dynamic character. This dynamic
character becomes obvious if one thinks of the epistemic Law of Balancing
invented by Alexy: The more heavily interference in a constitutional right
weighs, the greater must be the certainty of its underlying premises
(Alexy 2002b, 418). This Law has the consequence that the exact scope of
epistemic discretion always depends on the weight of interference with
a material principle. A perfect example for this correlation is the
Co-determination Judgement of the German Federal Constitutional Court
(FCC) (BVerfGE 1979, vol. 50: 333; Alexy 2002b, 419). In this Judgement, the
FCC distinguishes three different degrees of intensity of review of
epistemic discretion. This triadic epistemic pattern can only be explained
by a balancing model of discretion.
The exact scope of structural discretion is also to be settled in a balancing
procedure, and thus, the model is also dynamic at the structural level. In
addition to the epistemic Law of Balancing, there is a structural Law of
Balancing. Alexy calls it a substantive Law of Balancing (Alexy 2002b,
418, 1027).
2. Discretion and Legal Interpretation
So far, I have focussed on discretion in the context of a specic legal
method, namely, the weighing and balancing of legal principles. There is,
however, a different method, and it is in the context of this method,
namely, the interpretation of rules, that judicial discretion is mostly dis-
cussed. The interpretation of rules follows the traditional canons of inter-
pretation, e.g., semantic, historic, systematic, and teleological arguments
(Alexy 1989, 234ff.). The precise relationship between interpretation or
subsumption on the one hand and weighing on the other remains
unclear (Alexy 2003). However, this relationship is not essential to our
investigation.
Instead, I will focus only on the structure of legal argumentation as far
as it is relevant for the problem of judicial discretion. This structure is
almost indistinguishable from the structure discussed above. Even where
legal argumentation is not or not primarily concerned with the weighing
and balancing of principles, but rather with the interpretation of rules,
it follows the scheme of the three realms of what the law commands,
prohibits, and leaves open. In the discourse theory of legal interpretation,
these three realms are represented by the three discursive modalities. Every
possible or actual outcome of a legal discourse is either discursively
necessary, discursively impossible, or discursively possible (Alexy 1989, 17,
2879; 2002b, 393ff.). The latter is identical with what the law permits and
thus with structural discretion, whereas the two former represent the
framework of structural discretion in the interpretation of rules.
This structural similarity of the discursive theory of legal argumentation
and the principle theory of constitutional rights is very important and
demonstrates an intrinsic link between these two theories. There are many
520 Matthias Klatt
more links, thus the two theories complement and enforce one another, if
not culminating into a general and coherent theory of law.
3. Discretion and the Further Development of the Law
Besides balancing and interpretation, there is a third technique of adjudi-
cation, namely, the further development of the law. Every interpretation
changes the law and thus develops it. This is further development in the
broader sense, from which we have to distinguish further development in
the narrow sense (Alexy 1995, 91). Its characteristic is that the decision is
not within the semantic limits of the wording of a statute or precedent
(Klatt 2004b).
In these cases, the freedom of judges is signicantly higher as compared
to mere interpretation. When judges do not decide within the wording,
they are unable to assign some of their responsibility to the legislator or
to the court that established precedent, as they would have been in the
case of a mere interpretation, which isdespite its evaluative character
essentially an application of the law. Examples for a further development
in the narrow sense are the analogy and its opposite, the teleological
reduction. The German Federal Constitutional Court accepted the further
development as a distinct method of legal argumentation in its famous
Princess Soraya-case:
Justice is not identical with the aggregate of the written laws. Under certain
circumstances law can exist beyond the positive norms which the state enacts [. . .]
The judges task is not conned to ascertaining and implementing legislative
decisions. He may have to make a value judgement (an act which necessarily has
volitional elements); that is, bring to light and implement in his decisions those
value concepts which are inherent in the constitutional legal order, but which are
not, or not adequately, expressed in the language of the written laws. [. . .] Where
the written law fails, the judges decision lls the existing gap by using common
sense and general concepts of justice established by the community. (BVerfGE 1973,
vol. 34: 287; Kommers 1997, 125)
In many legal systems, this third technique is not sharply distinguished
from interpretation, even though this differentiation, as I have argued
elsewhere (Klatt 2004b), is extremely important on constitutional and
methodological grounds even in common law systems. Here, it is decisive
because it demonstrates both the existence of the judges law-making
competence and its extent or limits.
For reasons of simplicity, I will concentrate on the analogy here. Judges
are entitled to use the methodological instrument of analogy only if two
requirements are fullled: First, there must be a gap in the law. Second, the
ratio legis of the norm that is to be extended must cover the new case as
well (Klatt 2004a, 61). These requirements show us the connection between
further development of the law and judicial discretion. If an analogy lls
a legal gap, then it is part of judicial law-making. A gap exists only in cases
where the law does not command or prohibit a certain result. Thus, a
further development of the law is the use of structural discretion (BVerfGE
1990, vol. 82: 113).
In summary: All three key methods in legal argumentation, namely, the
balancing of principles, the interpretation of rules, and the further devel-
opment of the law, demonstrate the dynamic character of judicial discre-
tion. According to the procedural approach, the discourse itself identies
what is legally permitted and what is forbidden. Thus, the discourse xes
the scope of judicial discretion in all three types of legal methods.
4. The Limits of Judicial Discretion
a. Why Limits Matter
It is widely accepted that discretion has limits. Scholars who embrace the
concept of judges discretion point out that this freedom is not unlimited.
In view of this consensus, the question of the limits of judicial discretion
may seem to be trivial.
Appearances are deceptive, however. First, the existence of limits is most
important from a state-theoretical point of view. We will only ensure that
judges adhere to the law if their discretion is limited. Unlimited discretion
would render the doctrine of the separation of powers a farce. The law
would become completely indeterminate, and the law-making power of
the judges would be all-embracing and open-ended, tantamount to the rst
scenario introduced above.
Second, from a methodological and argumentation-theoretical perspec-
tive, it is decisive to know the limits of discretion in order to establish the
exact line of the limits in a concrete case.
According to the full picture of judicial discretion presented here, the
question of the limits must be answered separately for structural and for
epistemic discretion. On a very abstract level, however, we can say that for
both types of discretion the limits are set by the discursively impossible
and the discursively necessary. This is true because the discourse settles the
limits of both structural and epistemic discretion.
b. The Limits of Structural Discretion
The limits of structural discretion shall be considered rst. They are set
precisely by what the law denitely commands or prohibits or, in other
words, what is discursively necessary or impossible (Alexy 2002b, 393,
420). These limits constitute structural discretion. Thus, we can identify
two lines of limitation (Klatt 2004b, 2716): The rst demands a decision in
accordance with the discursively necessary, the second prohibits deciding
522 Matthias Klatt
in accordance with the discursively impossible. Between these two lines
lies the area of the discursively possible in which the judiciary is permitted
to decide either way.
These two lines apply to the legal methods considered above. In the case
of legal interpretation, the law commands that certain objects, people, or
situations are subsumed under a legal term, while excluding others from
subsumption. Alternatively, in the case of the balancing of principles, the
law commands that preference should be given to a specic principle
with the higher concrete weight, while prohibiting giving preference to a
different principle if its weight should be lower.
c. The Limits of Epistemic Discretion
The concrete limits of epistemic discretion are set by competing material
principles, e.g., constitutional rights. Therefore, in this dynamic model, the
limits are variable and depend on the weight of those constitutional rights.
Epistemic discretion can refer to either empirical or normative knowledge.
This shall be illustrated here with an example from the jurisdiction of the
German Federal Constitutional Court (FCC). The relation between the FCC
and the ordinary courts is a central matter of dispute in German public
law as the FCC reviews the jurisdiction of the ordinary courts as far as
constitutional rights are concerned. This review, however, is not a full
control. The FCC grants the ordinary courts epistemic discretion with
regard to both normative and empirical knowledge:
The organisation of the proceedings, the establishment, and evaluation of the facts,
the interpretation of a legal norm, and its application to an individual case are all
matters for the courts which are generally competent. They are not subject to
revision by the Federal Constitutional Court. (BVerfGE 1964, vol. 18: 92; vol. 11: 349;
vol. 13: 318; vol. 19: 175)
However, there are limits to the epistemic discretion of the ordinary courts.
They are not entitled to make arbitrary evaluations:
The correctness of the evaluation of the facts as such cannot be reviewed by the
Constitutional Court as long as the evaluation does not infringe specic constitu-
tional law, i.e., as long as it is not arbitrary or infringes constitutional law in another
way. (BVerfGE 1956, vol. 6: 10; vol. 34: 387)
Remarkably, the Federal Constitutional Court clearly adopts a dynamic
model: The limits of the epistemic discretion of the ordinary courts are
variable according to the weight of the competing material principles:
The limits of the Federal Constitutional Courts possibilities of intervention depend
in particular on the intensity of the encroachment on fundamental rights: the
more a civil judicial decision curtails requirements for free existence and activity
protected by fundamental rights, the more thorough must be the constitutional
review of whether such curtailment is constitutionally justied. (BVerfGE 1980,
vol. 54: 215; 1976, vol. 42: 148ff.)
An example for a more thorough constitutional review can be found in
an order concerning the fundamental right of asylum. This right requires
that the refugee be in danger of political persecution (Art. 16a, Basic Law).
Whether or not the refugee actually is in this danger is a matter of fact and
thus evaluated primarily by the administrative courts. However, due to the
high weight of this basic right, the Federal Constitutional Court reviews
the evaluation of administrative courts thoroughly:
As far as the element of political persecution is concerned, the Federal Constitu-
tional Court reviews the establishment of the facts as well as the legal evaluation
and examines whether the factual and legal evaluation of the courts as well as the
manner and the extent of the ndings are in accordance with the right to asylum.
(BVerfGE 1987, vol. 76: 162)
5. The Relation of Structural and Epistemic Discretion
So far, the limits of both structural and epistemic discretion have been
discussed. However, these limits are not as easily defended as it may seem.
The relationship between structural (strong) and epistemic (weak) discre-
tion has not yet been sufficiently addressed in legal theory. Dworkin, for
example, having distinguished weak and strong discretion, declares the
former trivial and, consequently, does not study it. He concentrates on
strong discretion alone. It follows therefore, that he cannot produce a full
picture of discretion. The reason for this is clear: Since Dworkin investi-
gates discretion in the context of his battle with legal positivism, weak
discretion is of no concern to him. The situation is different in an analysis
of the structure of legal argumentation such as the one we are engaged in
here.
a. The Problem of Normative Epistemic Discretion
The relationship between structural and epistemic discretion is most prob-
lematic in the case of normative epistemic discretion, i.e., discretion on
normative knowledge. As Alexy noticed, it seems that normative epistemic
discretion dissolves the limits of structural discretion (Alexy 2002b, 420).
The judiciary is to a certain extent free to decide what they are com-
manded, prohibited, and permitted to do. This freedom challenges the
view of a real, reviewable obligation to take rights seriously. Normative
epistemic discretion means that the judges have discretion on the separa-
tion of the three realms of what the law commands, prohibits, and leaves
open. It is tantamount to granting the judges a competence-competence,
524 Matthias Klatt
i.e., a competence on the limits of their structural discretion. This makes it
unclear how to separate structural from normative-epistemic discretion.
This separability is, however, most important if the binding of the judges
to the law means anything at all.
b. A Defence of the Possibility of Separation
My defence of the separability of normative-epistemic and structural
discretion consists of three steps. First, we have to ask what it means that
such a difference exists. In other words, we need a conceptual analysis,
concentrating on whether it is conceptually possible to differentiate
normative-epistemic from structural discretion at all.
This rst step has already been lucidly provided for by Alexy. He
explains the conceptual difference between the types of discretion. He
points out that in the case of structural discretion, the choice of a certain
result is legally open and thus political, whereas in the case of normative-
epistemic discretion legal considerations are not removed from the discre-
tion. Rather, discretion is between various legal possibilities (Alexy 2002b,
421). In the case of epistemic discretion, the uncertainty refers only to the
knowledge of decisions that are understood as legally clear at the structural
level.
However, to explicate this conceptual difference is not tantamount to
proving its existence. The defence of the separability thus needs two more
steps. In a second step, one has to explain what has to be the case
constructively if the difference were to exist. This amounts to dening the
criteria necessary for separability. If the binding of judges to the law
depends on structural and normative-epistemic discretion not coinciding
with each other, then the structural level must be, at least in some cases,
analytically prior to the epistemic level. The distinction between the three
realms at the structural level must not be covered in all cases by epistemic
discretion. Thus, there have to be at least some cases in which judges hold
no competence-competence, so that the law itself settles when judges have
epistemic discretion and when they do not. One has therefore to prove that
there are some cases in which epistemic discretion is completely absent.
One could call these cases normative-epistemically clear cases. They
are not characterized by the absence of structural discretion, for it is still
possible that the case falls within the third realm of what the law leaves
open. Instead, they are characterized by the fact that the answer to the
question of which realm the case belongs to at the structural level is
epistemically certain. In the dynamic model adopted here, such easy cases
are constructively possible. As mentioned above, the scope of epistemic
discretion depends on the weight of competing material principles which
demand a reduction of discretion. Epistemic discretion is absent, therefore,
if the concrete weight of the competing material principles is so high as to
make the weight of the formal principle of epistemic discretion negligible.
If there were such cases, there would be a prior standard of certainty
that would help us draw the line between structural and normative-
epistemic distinctions and thus defend the binding of the judges to
the law.
Clearly, the conceptual and constructive analysis so far does not prove
the existence of normative-epistemically clear cases. So the defence needs
a third step by which this existence is established. This step is not an
analytical one, but a descriptive one. The answer to the question of the
existence of clear cases depends on the concrete content, complexity, and
coherence of existing legal systems. I will therefore not address this issue
here. However, there are good reasons to assume that each legal system
necessarily entails at least some epistemically clear cases. An efficient legal
system in which epistemical uncertainty occurs in every single case is hard
to imagine. One could name this the thesis of the necessary incorporation
of normative-epistemically clear cases.
An example of this kind of clear case, where the formal principle of
normative-epistemic discretion becomes zero due to the concrete weight of
a material principle, can be found in the asylum case mentioned above.
Because of the high constitutional importance of the right to asylum, the
administrative courts are not permitted to use discretion as external
justication for the use of a normative-epistemic premise on the element of
political persecution. Thus, the FCC will fully review the application of the
element political persecution by the administrative courts. If the exist-
ence of one single clear case is sufficient to prove the possibility of the
binding of judges to the law, then this defence is successful.
V. Summary
Dworkins assault on the positivists position on structural (strong) discre-
tion is accurate in its stressing the legal internality of all standards applied
by judges. However, these standards do not result inevitably in an exclu-
sively correct answer in each case. This indeterminate character makes
structural discretion indispensable, and Dworkin grants judges too little
discretion. Hart, on the other hand, may be right on the indeniteness of
legal standards, but overestimates the law-making power of judges and
thus argues for too little discretion.
A full picture of judicial discretion depends both on discourse-theoretical
insights on the structure of legal argumentation and on principle-
theoretical insights on weighing and balancing procedures. Thus, it
provides for a substantive-procedural model in which some things are
prescribed, others prohibited, and still others remain open. Structural
judicial discretion, understood as the competence for devising new norms,
526 Matthias Klatt
is dened by the limits of what the law denitely commands and prohibits.
It arises from the stalemate between two material principles.
Epistemic discretion refers to both normative and empirical knowledge.
As a formal principle, it is as prima facie discretion the object of the
balancing against a material principle and, as denite discretion, the
possible outcome of such balancing. Accordingly, the precise scope of judi-
cial discretion in any individual case is without exception the result of this
balancing process. The dynamic nature of discretion is also evident in
ordinary legal interpretation, as the discursively possible which is identical
to structural discretion is a result rather than the starting point of legal
discourse.
The limits of structural discretion are dened by the two lines of the
discursively impossible and the discursively necessary. The limits of
epistemic discretion depend on the weight of competing material prin-
ciples. Normative epistemic discretion can be separated from structural
discretion because there are normative-epistemically clear cases in which
judges have no competence-competence.
The full picture of judicial discretion as presented here explains both the
law-making power of judges and the limits of that competence.
New College
Oxford OX1 3BN
United Kingdom
E-mail: matthias.klatt@new.ox.ac.uk
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