klatt - taking rights less seriously

Taking Rights less Seriously.A Structural Analysisof Judicial Discretion

MATTHIAS KLATT

Abstract. This article investigates the concept and the construction of judicialdiscretion. 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 betweenthe two extremes. Thus, a moderate theory of judicial discretion is maintainedwhich is based on achievements by Robert Alexy (2002b). The article develops abalancing 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 animportant role in many legal contexts. Ideal legal systems might be able todo without it, but for existing legal systems discretion remains a conditiosine qua non. Thus, it is a universal and unavoidable problem. It occurs inall three branches of government (Barak 1989, 12): In the legislature, whichacts in the framework of the constitution and of supranational law; in thejudiciary, which acts in the framework of the constitution, statutes andprecedents; and in the executive authority (Arai-Takahashi 2000), whichacts within the framework of the constitution, statutes, and regulations. Inaddition, discretion occurs in multilevel legal structures: Member stateshave discretion in the transposition of EC law (Somsen 2003) and a marginof appreciation in the implementation of the European Convention ofHuman Rights (Arai-Takahashi 2002).

In this paper, I will focus on judicial discretion. However, I assume thatthe structural analysis I pursue offers insight into the general structure of

Ratio Juris. Vol. 20 No. 4 December 2007 (506–29)

© 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and350 Main Street, Malden 02148, USA.

discretion (Raabe 1998, 46, 475), which should make the findings of thispaper applicable, cum grano salis, to other types of discretion. Legal systemsdiffer widely in character and scope. Some sources of discretion are uniqueto specific types of legal systems. Case law, for instance, has its very ownsources of discretion (Barak 1989, 77–83). In this paper, however, I willfocus on more general and universal aspects.

2. Discretion as a Relative Concept

Dworkin compared discretion to a hole in a doughnut. It does not existexcept as an area left free by a surrounding belt of restrictions (Dworkin1978, 31). Discretion, therefore, is a relative concept. It refers to a givenstandard or authority against which the area of freedom can be measured.Interpreting discretion as a relative concept is equivalent to accepting thatdiscretion is limited, whatever those limits may be. In the words of LordScarman:

Legal systems differ in the width of the discretionary power granted to judges; butin developed societies limits are invariably set, beyond which the judges may notgo. Justice in such societies is not left to the unguided, even if experienced, sagesitting 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 theoutset as a limited or relative concept. Consequently, I will forgo anydiscussion of the radical sceptical view of certain currents in legal realismor 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 toessential problems of general legal philosophy. This is particularly true ofjudicial discretion. It is not merely an argumentation-theoretical question,but raises the fundamental issues of the separation of powers, the bindingof judges to the law, the distinction between hard and easy cases, and theseparation of interpretation and law-making. It is no coincidence thatjudicial discretion has come to play the prominent role it enjoys in thedebate on the concept of law. Furthermore, an adequate theory of judicialdiscretion is necessary to provide the basis for the legitimacy of decisionsand the claim for correctness implicit in every judgment (Alexy 1998;critical Neumann 2004, 9, 11). Implementing judicial discretion into a legal

507A 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 forflexibility in the application of the law and for justice in a particular case(Wellman 1997, 144ff.). On the other hand, it undermines the law’s con-tribution to social stability and makes it vulnerable to particularistic moralconvictions.

4. Survey

This article does not pursue an empirical or legal-sociological perspective(Hawkins 1992). Rather, it develops an analytical-normative analysis, i.e., itinvestigates the concept and the argumentation-theoretical construction ofjudicial discretion. This analysis consists of three elements. I will begin byanalysing the debate between Hart and Dworkin (II), and continue byinvestigating the merits and weaknesses of the respective positions (III).Based on these, I will conclude by arguing for a moderate view and a fullpicture of judicial discretion (IV).

II. The Debate between Hart and Dworkin

Ronald Dworkin and H.L.A. Hart disagree on a number of issues, buttheir debate on judicial discretion is among the most fundamental ones.Legal positivism from Austin to Hart placed emphasis on the role playedby judicial discretion (1). Dworkin, among others (Sartorius 1968; 1971;Hughes 1968), has challenged that view (2).

1. Hart on Discretion

According to Hart (1994, 124–47), rules have a core of settled meaning anda penumbra of vagueness and open texture, in which the rules do notsupply unequivocal guidance. In the penumbra, the question whether agiven rule applies to a particular case has no determinate answer in thelaw. The judges, therefore, have discretion as far as the penumbra reaches.Within this area, they have to refer to extra-legal standards and, acting inan almost legislative fashion, choose the decision that seems best to them.While judges are bound by the core of a rule that constitutes a standardagainst which their decision can be measured and that they are not freeto 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 hardcases, i.e., cases that are controversial in the sense that reasonable andinformed experts may disagree about which answer would be legallycorrect. 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

© 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd. Ratio Juris, Vol. 20, No. 4

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 andvalues (Kelsen 1967, 353–5; Schauer 1991, 222). Judges rely on discretion tobridge this gap by making a new law; they do not, as Raz noticed, convertmorality into pre-existing law (Raz 1986, 1110, 1115ff.). For most legalpositivists, the need for discretion is the counterpart to the absence of aright answer (Bix 1995, 26; Barak 1989, 40ff.; Schauer 1991, 222; Kress 1989,296ff.).

Nevertheless, Hart makes a clear distinction between discretion andmere arbitrariness. Furthermore, judges’ discretion is different from that oflegislators. Judges do not have the power to introduce large-scale reformsor new codes as do legislators. Moreover, their powers are subject to manyconstraints and substantive limits which narrow their choice (Hart 1994,273). Discretion, as Raz has put it, does not imply acting whimsically, andit 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 criticalevaluation of legal positivism. He actually lists the doctrine of discretion asa key tenet of legal positivism (Dworkin 1978, 17). Dworkin distinguishesthree senses of discretion (ibid., 31ff.). In the two weak senses, discretionmeans “judgment” and “finality.” The first weak sense (judgment) con-cerns the fact that the standards a judge must apply cannot be appliedmechanically but demand the use of judgment. The second weak sense(finality) means that judges have final authority to make a decision andthat their decision cannot be reviewed or reversed by any other official.This sense of discretion, of course, would only apply, if it does, onceappeals have been exhausted. Dworkin readily acknowledges that thesetwo weak senses of discretion do apply, but to him, they are trivial andirrelevant (ibid., 38, 70). Discretion as judgment in particular is essential inevery act of adjudication (ibid., 119, 46–8; Dworkin 1986a, 353ff; 1978, 69).In this respect, there is no difference between the legal positivists andDworkin.

However, Dworkin objects to a third sense of discretion, namely, theview that there are issues in which judges are completely free from legalstandards. Strong discretion does not arise from the vagueness of somelegal norm or from the authority to give the final 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 aretwo or more legal answers, each of which is equally correct as far as thelaw is concerned, thus forcing the judge to make his choice on extra-legalgrounds.



In contrast to Hart, Dworkin denies the existence of strong discretion.According to his general interpretative and principle-theoretical approachto law, the law is never incomplete or indeterminate. Therefore, judgesnever have occasion to step outside the law and exercise lawmaking powerin order to reach a decision. Herculean jurisprudence does not leave judgeswith the liberty of using personal predilections or favoured political goalsas a proper basis for adjudication (Dworkin 1986a, 152, 255ff., 378). Evenin hard cases, judges are obliged to seek out and give effect to existent legalrights, not to invent them (MacCormick 1994, 246).

According to Dworkin, Hart errs when inferring strong from weakdiscretion. In hard cases, the content of a legal norm is controversial, sothere is weak discretion. Reasonable men disagree on the correct applica-tion of a legal norm. However, it does not follow from the existence ofcontroversy that there is strong discretion, i.e., that there is no standard towhich the judge is legally bound (Dworkin 1978, 36, 327). Hard cases maybe controversial, but that does not imply that judges must adopt extra-legalstandards 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 anythinggoes. Still, some standards of rationality, fairness, and effectiveness can beapplied. Nevertheless, these standards, according to Dworkin’s strongsense of discretion, are not part of the legal duty of the judge; they areimposed from outside the law (ibid., 33).

However, Dworkin is partly wrong in ascribing this view to legalpositivists, because positivists generally accept standards of rationality asminimal legal standards. Judges are not legally free, as Greenawalt pointsout, 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. Dworkin’sdefinition of strong discretion is misleading in that it claims the completeabsence of any standard for all classes of hard cases. If positivists agreethat even in hard cases the legal standards of rationality rule out somedecisions, then the key feature of strong discretion cannot be the absenceof a standard. Instead, it is the indefiniteness of legal standards. Legalpositivists do not maintain that there is an absence of standards, but ratherthat the laws do not identify any decision as the correct one. According tothem, judges are forced to choose between several equally correct decisions(Raz 1972, 843). Thus, it is clear that Dworkin’s attack on strong discretionrests principally on his “one right answer”-thesis.

III. Strengths and Weaknesses

Both Dworkin’s and Hart’s view have strengths and weaknesses.

510 Matthias Klatt


1. Dworkin’s View

Dworkin’s attack on strong discretion hinges on his proving two points(Raz 1972, 845; Greenawalt 1975, 367): First, that all grounds of a decisionare legal grounds. Law, by necessity, has its very own ultimate standardof correctness, so that judges neither have nor are entitled to applyextra-legal standards. Second, that these grounds and standards lead toa single right answer. These two questions are to remain separate. Thefirst is concerned with a problem that can be called the internality ofthe standards, the second with the problem of the definiteness of thestandards.

While I agree with Dworkin’s answer to the first question, I object to hisanswer to the second. The question of the internality of the standards isidentical with the problem of the concept of law, a problem which cannotbe discussed in detail here. I will base my position on the assumption thatDworkin is correct in stressing that the concept of law is intrinsically andnecessarily linked to morals.

Raz argues that legal positivists do not deny the role of principles ina legal system (Raz 1972, 845). If this were true then the exact extent ofdiscretion, insofar as it stems from the special character of legal principles,would depend on the legislator’s decision to incorporate principles. In thissense, legal positivists tend to see the incorporation of legal principles intoa legal system as contingent. This position, however, is challenged by thethesis that every legal system that is at least minimally developed neces-sarily comprises principles (Alexy 2002a, 70–4).

According to the connection thesis defended by Alexy, the concept oflaw is to be defined such that moral elements are included (Alexy 2002a,21–8). Therefore, when Raz objects to Dworkin that his denial of strongdiscretion implies that all the reasons that the courts are entitled to usein justifying decisions are part of the law (Raz 1972, 844), his objectionis correct, but misses the point. It is correct because the intrinsic linkbetween law and morals makes any social, moral or political standardwhich judges are entitled to take into account for some legal purpose alegal one. It misses the point, though, as—due to the connection thesis—there is no need to defend certain limits of law, as Raz does, in orderto exclude standards judges are entitled to apply from being legal stan-dards. Thus, Raz’s thesis of the limits of law is no argument againstDworkin’s position.

However, the fact that all standards which judges are entitled to applyare intrinsic parts of the law and thus legal standards is insufficient forDworkin’s denial of strong discretion. In addition, he has to prove thatthese standards yield a single correct answer. Otherwise, internal standardsin hard cases would give judges different possibilities, all of which are legalto the same degree. Moreover, they would have to choose between them on



extra-legal grounds because these internal standards would not be definite,and this would contradict Dworkin’s first point, namely, the internality ofthe standards.

Dworkin needs a second thesis, i.e., the “one right answer”-thesis or thethesis of necessary definiteness of legal standards. Dworkin maintains thatthe set of legal principles as a whole tends to result in single right answersto almost all legal questions (Dworkin 1986a, viii–ix, 412; 1991, 84). Theincorrectness of this second thesis has become almost a commonplace incurrent legal theory (Finnis 1987, 371–74; Putnam 1995, 6ff.; Marmor 1995,54–7; Bix 1995, 96–106; Koller 1997, 180ff.; Kelsen 1992, 80ff.). It is, however,not as misguided as some positivists would have it. Greenawalt, forexample, argues that one might initially suppose that Hart’s model wouldgive the judge a great sense of freedom, telling him that in some caseshe has strong discretion to choose and to apply extra-legal standards.By contrast, the judge in Dworkin’s model, according to Greenawalt, mayseem a fettered creature, always restrained by a coherent, all-covering setof principles. Greenawalt argues that, paradoxically, Dworkin’s positionmight have precisely the effect of liberating the judges simply because heinvites the judges to give greater weight to amorphous moral principlesand social policies (Greenawalt 1975, 362).

However, Greenawalt’s 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, theywould be forced to consider additional issues when reaching their verdict.The notion of an increased freedom would only be justified if the appli-cation of principles were to imply the use of personal, subjective viewsinstead of objective procedures. Nevertheless, this assumption is mistaken.Robert Alexy and his followers have demonstrated that the weighing ofprinciples is indeed an objective, intersubjectively valid method thathas nothing to do with irrationality (Alexy 2003, 433–49; 2002b, 405). There-fore, Greenawalt’s picture of the consequences of the implementation ofprinciples is wrong. Principles have the force to be additional fetters onthe judges. Thus, it is also true that Dworkin’s model tends to be moredemocratic than Hart’s does.

However, these further fetters are not unambiguous: They would notlead to one correct answer in every case. It is remarkable that originallyDworkin did not use positive arguments in support of his position, relyingon negation instead, i.e., disproving the positivistic no-right-answer thesis(Dworkin 1986b, 119–45). Nevertheless, even if the no-right-answer thesiswere wrong, that would not be sufficient proof for Dworkin’s claim of oneright answer. One would still have to disprove the possibility of severalcorrect answers.

Dworkin’s early position rests on his bivalence thesis, which posits thatin any given case certain concepts either do or do not apply (Dworkin

512 Matthias Klatt


1986b, 119–28). Dworkin acknowledges that there are many decisions thata judge has no duty to make either way. In doing so, he admits that thereare decisions where the bivalence thesis does not hold, leaving a logicalspace between the bivalence poles. Nevertheless, he claims that in thesecases there are so-called dispositive concepts which entail a prima facie dutyon the part of judges to decide either in favour of the plaintiff or thedefendant. Dispositive concepts have the function of closing the logicalspace by making it impossible to deny both bivalence poles (ibid., 125). Asa 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 itis not.

It should not be denied that such dispositive concepts exist. However,Dworkin’s reliance on them implicitly limits his universe of discourse tosuch concepts. There are, however, many hard cases in which there are nodispositive concepts that could diminish the logical space by assigning thecase to either one of the poles. On the basis of the so-called discursivetheory of legal argumentation, which I will adopt here, it is widelyaccepted that the rules and forms of legal argumentation in many caseslead to no result at all; even when they do, they in no way guaranteeconclusive certainty.

There are several reasons for this indeterminateness, the most importantbeing that the rules of discourse do not stipulate the normative premisesfrom 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 onlyin the first two cases that we get a single right answer. In the thirdcase—the discursively possible—the outcome of legal discourse is an areaof at least two equally legal possibilities. Dworkin’s bivalence thesisignores exactly this latter option. His theory does not allow for thediscursively possible. Instead, it claims (but is unable to justify) that thereare only two modalities: impossible or necessary.

The same error occurs in Dworkin’s later defence of the one right answerclaim which can be found in his theory of law as integrity and his judgeHercules. This theory has the great strength of focussing on principles asa distinct form of legal norms. If, however, we consider the matter basedon a principle-theory of law, Dworkin’s one-right-answer thesis is coun-terintuitive. Principles are optimization requirements (Alexy 2002b, 47ff.,67–9). They can be satisfied to varying degrees. Rules, by contrast, arenorms which are always either fulfilled or not. Dworkin’s principle ofbivalence applies to rules but not to principles.

Dworkin tries to salvage his theory by referring to the legal system as awhole. This holistic approach is correct in that normative systems ingeneral follow a holistic pattern (Brandom 2000, 15ff.; Klatt 2004b, 169–83).However, the three discursive modalities also apply to the overall system.



Even complete sets of principles are put to use by weighing and balancingwhich is also a discursive argumentation procedure. Whenever one appliesprinciples, one has to rely on a discursive procedure. Again, at the end ofhis balancing of all relevant principles, judge Hercules would face threedifferent situations: In some cases, his decisions would be discursivelynecessary, in some impossible, but in some only possible. In the latterscenario, there would not be a single right answer.

The strengths and weaknesses of Dworkin’s theory in a nutshell: WhileDworkin’s thesis of internality of all legally relevant standards is correct,his one-right-answer thesis is applicable only to discursively necessary orimpossible decisions, and wrong for discursively possible ones.

2. Hart’s View

As far as the three modalities are concerned, Hart is closer to the truth thanDworkin. He allows for the discursively possible since he acknowledgesthat for specific cases, the law remains indefinite. In addition, he providesa categorization of these hard cases whenever the law leaves a logical spacebetween the bivalence poles. The vagueness of language and the opentexture of law are recognised as sources of discretion.

On the other hand, Hart tends to ignore or diminish the role of principlesin the legal system, and he denies the necessary connection between lawand morals. Therefore, he looks for the solution for hard cases outside thelaw, although it is to be found inside the law according to the principle-theoretical position adopted here. Because of these weaknesses, Hart grantsjudges more freedom than is necessary, namely, the freedom to decide hardcases on extra-legal grounds. Thus, as far as the separation of powers isconcerned, Hart’s position is more problematic than Dworkin’s.

3. The Need for a Moderate View

Both Dworkin’s and Hart’s model have strengths and weaknesses. Becauseof their respective weaknesses, it would not be an option simply to adoptone of these existing models. While Hart overestimates the law-makingparts of adjudication, and thus grants judges too much discretion, Dworkinunderestimates the law-making parts and argues for too little discretion.Neither Dworkin nor Hart give a full and correct picture of judicialdiscretion. We therefore need a third type of model. We must develop amore inclusive account of discretion. Such an inclusive account would haveto combine the strengths of both models. I will present the outlines of sucha moderate view in the next section.

IV. A Full Picture of Judicial Discretion

A moderate model of judicial discretion will combine the strengths of thetwo models discussed above. The new model’s principal aim is a theory of

514 Matthias Klatt


the structure of judicial discretion. It starts out from a combination ofdiscourse-theoretical insights from the theory of legal argumentation onthe one hand with elements from Alexy’s theory of constitutional rights onthe other. The latter is essential for this purpose as it provides insight intothe general structures of legal systems containing principles.

The relationship between judges and the law can be analyzed via threebasic scenarios. Alexy uses these scenarios to examine the relationshipbetween constitution and legislature (Alexy 2002b, 391). However, thescenarios can also be useful in the consideration of the relationshipbetween judges and the law, because both relationships follow the samestructure (Raabe 1998, 475, 88). Moreover, we may assume that thisstructure applies to all types of discretion in general, regardless of therespective legal system.

In the first of the three scenarios, the law contains no substantivecommands or prohibitions to limit the judiciary. The latter enjoys freereign, i.e., to derive any substantial result from the law, so long as itobserves the legal provisions relating to its competence, procedures, andforms. This is the purely procedural model of judicial discretion. Discretionis unlimited, as far as substantive matters are concerned.

This purely procedural model is incompatible with the judges’ legalobligation to respect and enforce legal rights, since it is defined as theabsence of any substantive legal obligation. Thus, in Dworkin’s terminol-ogy, it would not take rights seriously at all. We may assign this model, thefirst scenario, to a radical sceptic’s 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 andcorrectness but tricks of the mind. Judicial discretion would only be afriendly term to mask the arbitrary nature of adjudication. However, as Ihave proven elsewhere, radical scepticism is in error (Klatt 2004a; 2004b).A purely procedural model of discretion must be rejected, if legal systemsare to incorporate something that deserves the name of a legal right. Thefirst scenario obviously grants judges far too much discretion.

The counterpart to a purely procedural model is a purely substantiveone. Here, the law contains a command or prohibition in respect to everyconceivable decision, leaving no room for discretion. Dworkin’s theory ofjudicial discretion rests on this second scenario. He argues that there is asingle answer assigned to each legal problem. The law itself settles allsubstantial matters. Thus, the judiciary does not have discretion. As thissecond scenario rests on the erroneous one-right-answer thesis, grantingtoo little discretion, it also has to be rejected.

In the first scenario, the judiciary enjoys complete liberty as long asprocedural requirements are met. In the second scenario, the judiciary hasno 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-proceduralmodel.

Hart’s theory can be assigned to this third model, because it distin-guishes easy cases where the core of settled meaning of a rule providesunequivocal guidance, and hard cases which demand the use of discretionand the application of extra-legal standards. Thus, his theory is capable ofcommanding some things, prohibiting others, and neither commandingnor prohibiting a third category. Nevertheless, Hart’s position must berejected as well because of its weaknesses mentioned above. This is nottantamount to an overall rejection of the third scenario, because there areseveral feasible models within this scenario. As a result, we may add onerequirement to a full picture of judicial discretion: It must follow the thirdscenario, i.e., it must be a substantive-procedural model.

In the remaining parts of this section, I will clarify the concept of judicialdiscretion (1) and elaborate that concept further by addressing issues suchas the relation of discretion and legal interpretation (2) and the relation ofdiscretion and the further development of the law (3). I will conclude byinvestigating the limits of discretion (4) and the relation between the twomost important types of discretion (5).

1. The Concept of Judicial Discretion

a. Structural and Epistemic Discretion

In a substantive-procedural model, the law’s determinateness is threefold.First, certain decisions are prescribed. Second, certain decisions are pro-hibited. Third, certain decisions are neither prescribed nor prohibited. Inthe third category, it is permitted to make a certain decision or to refrainfrom it in favour of a different decision. Judicial discretion thus consistsprecisely of those alternatives in respect of which the judiciary has beenleft at liberty. One could also call this discretion the “sphere of judicialfreedom” (Alexy 2002b, 393).

It is exactly this freedom that Dworkin calls “strong discretion.” It isidentical with what Alexy calls structural discretion (Alexy 2002b, 310).I prefer the latter term as it emphasizes the source of that type ofdiscretion, namely, that the law itself leaves open the choice betweendifferent, but equally legal possibilities. Structural discretion is consti-tuted by the limits of what the law definitely commands and prohibits(Alexy 2002b, 393).

Structural discretion has also been conceptualized by Kelsen, who pointsout that in the hierarchy of norms the determination of higher-level normsis 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 filled in by the application of acts(Kelsen 1992, 78; Paulson 1990, 143–5).

What Dworkin labels the first weak sense of discretion, namely, discre-tion as judgment, can be better described in Alexy’s terms as epistemicdiscretion. Discretion as finality (second weak sense in Dworkin’s termi-nology) has nothing to do with the structural-epistemic distinction, butwith the question as to whether a decision is subject to review by a highercourt. This reveals that under the heading “weak discretion” Dworkincombines two issues which for systematic reasons had better be separated.The epistemic-structural distinction concerns the sources of discretion,while discretion as finality concerns the function of discretion in thehierarchy of courts.

Epistemic discretion arises from the limits of our capacity to know thelimits of the law. There are two types of epistemic discretion, depending onthe type of knowledge to which discretion is related. This knowledge canbe either empirical or normative.

That judges have an epistemic discretion with regard to empiricalknowledge means that they are entitled to use uncertain empirical com-mitments in the internal justification of their judgement (Raabe 1998, 53).From an argumentation-theoretical perspective, discretion has the task ofexternally 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, 35–48; 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 wouldbe entitled to err on what the law, at the structural level, commands,prohibits, and permits, and still make legally correct decisions. Whetherand to what extent such discretion exists will be considered below. At thispoint, the two kinds of epistemic discretion already allow us to explain thedifferent functions of higher and lower courts. The evaluation of facts, thehearing of witnesses, the hearing of evidence, etc., is primarily the functionof the courts of first instance, while the courts of higher instance are boundby 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 final. On the otherhand, higher courts generally decide questions of law. Their primaryfunction is to control and review the lower courts with regard to questionsof law. Thus, higher courts, unlike the lower courts, have epistemicdiscretion on normative knowledge. These considerations convey animportant message: A theory of discretion must account for the differencesand rank orders between higher and lower courts, or, more generallyspeaking, for the different functions of officials and authorities in the legalsystem.



b. Discretion as Competence

We can understand both structural and epistemic discretion as distinctcompetences of the judges. The concept of competence is problematic andis still not fully determined in current legal theory. I will use a basicconcept of competence here. Someone is competent if he has the legalposition conferred by a legal norm to make a new norm valid by a specificaction (Sieckmann 1990, 45ff.; Raabe 1998, 52). This action is, in the case ofjudges, the delivering of a decision. Judges have that legal position due toa competence norm like Art. 92 Basic Law.1

In the case of structural discretion, judges decide a legal problem onwhich the given set of legal norms remains silent. They validate thereby anew norm, at least in the sense that decisions in each future case thatcorrespond in all relevant matters to the one decided should go the sameway. In the case of epistemic discretion, they make a norm commandingthat some particular empirical or normative knowledge, even thoughuncertain, should be treated as certain. In this way, we can distinguishbetween structural and epistemic competence. This distinction mirrors thedistinction between structural and epistemic discretion.

To understand discretion as competence explains the law-making powerof judges. They have that power precisely to the extent of their structuralor epistemic competence.

c. The Balancing Model of Discretion

In order to get a full picture, judicial discretion has to be anchored in thesystem of weighing and balancing legal principles. This does not mean thatthe scope of the analysis proposed here was limited to public law, or—evenmore narrowly—to the application of constitutional rights. Rather, discre-tion itself is seen here as a formal principle that is balanced against otherprinciples, 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 democracyor the principle of the separation of powers, do not have substantialcontent. 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 ofthe law. Judicial discretion is a formal principle (Raabe 1998, 207, 326;Sieckmann 1988, 47). It does not give substantial answers to concretelegal 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 beexercised by the Federal Constitutional Court, by the federal courts provided for in this BasicLaw, and by the court of the federal states.”

518 Matthias Klatt


Principles compete with other principles. We have to distinguishbetween two scenarios. In the first scenario, two material principlescompete with each other, e.g., two substantive constitutional rights. Thisconflict has to be resolved via a balancing and weighing procedure. Theoutcome of the balancing can be threefold. The first principle may have ahigher concrete weight than the second, and vice versa. In these cases,there is no structural discretion. Rather, the law definitely commands thatpriority should be given to the principle that has the higher weight.

Nevertheless, the outcome may well be that both material principleshave the same concrete weight. Alexy has called this a stalemate-case, i.e.,a case in which there is structural discretion because the law neithercommands nor prohibits following either of the two conflicting principles.Thus, the first scenario is characterized by a conflict between two materialprinciples which can lead—in stalemate-cases—to structural discretion.

In the second scenario, the conflict is not between two material prin-ciples, but between a material principle and the formal principle ofepistemic discretion. Material principles like substantive legal rights primafacie exclude epistemic discretion as a ground for limiting legal rights whilethe latter prima facie requires just this competence (Alexy 2002b, 417; Raabe1998, 207, 326). If in a concrete case the outcome of the balancing processis such that the formal principle has precedence over the material prin-ciple, then there is a definite epistemic discretion in that case (Alexy 2002b,313, 414; Raabe 1998, 207). If, on the contrary, the material principle hasprecedence, then there is no definite discretion.

These scenarios reveal an interesting difference: While in the conflictbetween two material principles (first scenario) discretion is only possibleas a result of the balancing procedure, discretion as such (as a formalprinciple) is the object of the balancing procedure in the second scenario.Specifically, in the second scenario epistemic discretion is as prima faciediscretion an object of the balancing, and as definite discretion a possibleoutcome of the balancing.

The distinction between prima facie precedence and definite precedenceof principles is extremely important. It implies that the exact scope ofjudicial discretion in a single case is always the result of this balancingprocess. We therefore have to distinguish prima facie discretion fromdefinite discretion. The former is the input material for the balancingprocess, while the latter is the outcome in a concrete case.

This is true for both structural discretion and epistemic discretion. Theboundaries between the three realms of what the law commands, prohibits,and leaves open and the limits of knowledge-related competence are to besettled by balancing and weighing the formal and material principlesconcerned. Thus, we could label the balancing model of discretion as aprocedural or discursive model. It has a dynamic character. This dynamiccharacter becomes obvious if one thinks of the epistemic Law of Balancing



invented by Alexy: “The more heavily interference in a constitutional rightweighs, the greater must be the certainty of its underlying premises”(Alexy 2002b, 418). This Law has the consequence that the exact scope ofepistemic discretion always depends on the weight of interference witha material principle. A perfect example for this correlation is theCo-determination Judgement of the German Federal Constitutional Court(FCC) (BVerfGE 1979, vol. 50: 333; Alexy 2002b, 419). In this Judgement, theFCC distinguishes three different degrees of intensity of review ofepistemic discretion. This triadic epistemic pattern can only be explainedby a balancing model of discretion.

The exact scope of structural discretion is also to be settled in a balancingprocedure, and thus, the model is also dynamic at the structural level. Inaddition to the epistemic Law of Balancing, there is a structural Law ofBalancing. Alexy calls it a “substantive” Law of Balancing (Alexy 2002b,418, 102–7).

2. Discretion and Legal Interpretation

So far, I have focussed on discretion in the context of a specific legalmethod, 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 orsubsumption on the one hand and weighing on the other remainsunclear (Alexy 2003). However, this relationship is not essential to ourinvestigation.

Instead, I will focus only on the structure of legal argumentation as faras it is relevant for the problem of judicial discretion. This structure isalmost indistinguishable from the structure discussed above. Even wherelegal argumentation is not or not primarily concerned with the weighingand 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. Everypossible or actual outcome of a legal discourse is either discursivelynecessary, discursively impossible, or discursively possible (Alexy 1989, 17,287–9; 2002b, 393ff.). The latter is identical with what the law permits andthus with structural discretion, whereas the two former represent theframework of structural discretion in the interpretation of rules.

This structural similarity of the discursive theory of legal argumentationand the principle theory of constitutional rights is very important anddemonstrates an intrinsic link between these two theories. There are many

520 Matthias Klatt


more links, thus the two theories complement and enforce one another, ifnot 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 interpretationchanges the law and thus develops it. This is further development in thebroader sense, from which we have to distinguish further development inthe narrow sense (Alexy 1995, 91). Its characteristic is that the decision isnot within the semantic limits of the wording of a statute or precedent(Klatt 2004b).

In these cases, the freedom of judges is significantly higher as comparedto mere interpretation. When judges do not decide within the wording,they are unable to assign some of their responsibility to the legislator orto the court that established precedent, as they would have been in thecase of a mere interpretation, which is—despite its evaluative character—essentially an application of the law. Examples for a further developmentin the narrow sense are the analogy and its opposite, the teleologicalreduction. The German Federal Constitutional Court accepted the furtherdevelopment 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 certaincircumstances law can exist beyond the positive norms which the state enacts [. . .]The judge’s task is not confined to ascertaining and implementing legislativedecisions. He may have to make a value judgement (an act which necessarily hasvolitional elements); that is, bring to light and implement in his decisions thosevalue concepts which are inherent in the constitutional legal order, but which arenot, or not adequately, expressed in the language of the written laws. [. . .] Wherethe written law fails, the judge’s decision fills the existing gap by using commonsense 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 distinguishedfrom interpretation, even though this differentiation, as I have arguedelsewhere (Klatt 2004b), is extremely important on constitutional andmethodological grounds even in common law systems. Here, it is decisivebecause it demonstrates both the existence of the judges’ law-makingcompetence and its extent or limits.

For reasons of simplicity, I will concentrate on the analogy here. Judgesare entitled to use the methodological instrument of analogy only if tworequirements are fulfilled: First, there must be a gap in the law. Second, theratio legis of the norm that is to be extended must cover the new case aswell (Klatt 2004a, 61). These requirements show us the connection between



further development of the law and judicial discretion. If an analogy fillsa legal gap, then it is part of judicial law-making. A gap exists only in caseswhere the law does not command or prohibit a certain result. Thus, afurther development of the law is the use of structural discretion (BVerfGE1990, vol. 82: 11–3).

In summary: All three key methods in legal argumentation, namely, thebalancing 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 identifieswhat is legally permitted and what is forbidden. Thus, the discourse fixesthe 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 theconcept of judges’ discretion point out that this freedom is not unlimited.In view of this consensus, the question of the limits of judicial discretionmay seem to be trivial.

Appearances are deceptive, however. First, the existence of limits is mostimportant from a state-theoretical point of view. We will only ensure thatjudges adhere to the law if their discretion is limited. Unlimited discretionwould render the doctrine of the separation of powers a farce. The lawwould become completely indeterminate, and the law-making power ofthe judges would be all-embracing and open-ended, tantamount to the firstscenario introduced above.

Second, from a methodological and argumentation-theoretical perspec-tive, it is decisive to know the limits of discretion in order to establish theexact line of the limits in a concrete case.

According to the full picture of judicial discretion presented here, thequestion of the limits must be answered separately for structural and forepistemic discretion. On a very abstract level, however, we can say that forboth types of discretion the limits are set by the discursively impossibleand the discursively necessary. This is true because the discourse settles thelimits of both structural and epistemic discretion.

b. The Limits of Structural Discretion

The limits of structural discretion shall be considered first. They are setprecisely by what the law definitely commands or prohibits or, in otherwords, what is discursively necessary or impossible (Alexy 2002b, 393,420). These limits constitute structural discretion. Thus, we can identifytwo lines of limitation (Klatt 2004b, 271–6): The first demands a decision inaccordance with the discursively necessary, the second prohibits deciding

522 Matthias Klatt


in accordance with the discursively impossible. Between these two lineslies the area of the discursively possible in which the judiciary is permittedto decide either way.

These two lines apply to the legal methods considered above. In the caseof legal interpretation, the law commands that certain objects, people, orsituations are subsumed under a legal term, while excluding others fromsubsumption. Alternatively, in the case of the balancing of principles, thelaw commands that preference should be given to a specific principlewith the higher concrete weight, while prohibiting giving preference to adifferent principle if its weight should be lower.

c. The Limits of Epistemic Discretion

The concrete limits of epistemic discretion are set by competing materialprinciples, e.g., constitutional rights. Therefore, in this dynamic model, thelimits 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 theGerman Federal Constitutional Court (FCC). The relation between the FCCand the ordinary courts is a central matter of dispute in German publiclaw as the FCC reviews the jurisdiction of the ordinary courts as far asconstitutional rights are concerned. This review, however, is not a fullcontrol. The FCC grants the ordinary courts epistemic discretion withregard 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 allmatters for the courts which are generally competent. They are not subject torevision 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 theConstitutional Court as long as the evaluation does not infringe specific constitu-tional law, i.e., as long as it is not arbitrary or infringes constitutional law in anotherway. (BVerfGE 1956, vol. 6: 10; vol. 34: 387)

Remarkably, the Federal Constitutional Court clearly adopts a dynamicmodel: The limits of the epistemic discretion of the ordinary courts arevariable according to the weight of the competing material principles:

The limits of the Federal Constitutional Court’s possibilities of intervention dependin particular on the intensity of the encroachment on fundamental rights: themore a civil judicial decision curtails requirements for free existence and activity



protected by fundamental rights, the more thorough must be the constitutionalreview of whether such curtailment is constitutionally justified. (BVerfGE 1980,vol. 54: 215; 1976, vol. 42: 148ff.)

An example for a more thorough constitutional review can be found inan order concerning the fundamental right of asylum. This right requiresthat 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 andthus evaluated primarily by the administrative courts. However, due to thehigh weight of this basic right, the Federal Constitutional Court reviewsthe 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 evaluationand examines whether the factual and legal evaluation of the courts as well as themanner and the extent of the findings 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 beendiscussed. 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, forexample, having distinguished weak and strong discretion, declares theformer trivial and, consequently, does not study it. He concentrates onstrong discretion alone. It follows therefore, that he cannot produce a fullpicture of discretion. The reason for this is clear: Since Dworkin investi-gates discretion in the context of his battle with legal positivism, weakdiscretion is of no concern to him. The situation is different in an analysisof the structure of legal argumentation such as the one we are engaged inhere.

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 onnormative knowledge. As Alexy noticed, it seems that normative epistemicdiscretion 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 theview of a real, reviewable obligation to take rights seriously. Normativeepistemic discretion means that the judges have discretion on the separa-tion of the three realms of what the law commands, prohibits, and leavesopen. 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 itunclear how to separate structural from normative-epistemic discretion.This separability is, however, most important if the binding of the judgesto the law means anything at all.

b. A Defence of the Possibility of Separation

My defence of the separability of normative-epistemic and structuraldiscretion consists of three steps. First, we have to ask what it means thatsuch a difference exists. In other words, we need a conceptual analysis,concentrating on whether it is conceptually possible to differentiatenormative-epistemic from structural discretion at all.

This first step has already been lucidly provided for by Alexy. Heexplains the conceptual difference between the types of discretion. Hepoints out that in the case of structural discretion, the choice of a certainresult 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 theknowledge of decisions that are understood as legally clear at the structurallevel.

However, to explicate this conceptual difference is not tantamount toproving its existence. The defence of the separability thus needs two moresteps. In a second step, one has to explain what has to be the caseconstructively if the difference were to exist. This amounts to defining thecriteria necessary for separability. If the binding of judges to the lawdepends on structural and normative-epistemic discretion not coincidingwith each other, then the structural level must be, at least in some cases,analytically prior to the epistemic level. The distinction between the threerealms at the structural level must not be covered in all cases by epistemicdiscretion. Thus, there have to be at least some cases in which judges holdno competence-competence, so that the law itself settles when judges haveepistemic discretion and when they do not. One has therefore to prove thatthere are some cases in which epistemic discretion is completely absent.

One could call these cases “normative-epistemically clear cases.” Theyare not characterized by the absence of structural discretion, for it is stillpossible that the case falls within the third realm of what the law leavesopen. Instead, they are characterized by the fact that the answer to thequestion of which realm the case belongs to at the structural level isepistemically certain. In the dynamic model adopted here, such easy casesare constructively possible. As mentioned above, the scope of epistemicdiscretion depends on the weight of competing material principles whichdemand 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 certaintythat would help us draw the line between structural and normative-epistemic distinctions and thus defend the binding of the judges tothe law.

Clearly, the conceptual and constructive analysis so far does not provethe existence of normative-epistemically clear cases. So the defence needsa third step by which this existence is established. This step is not ananalytical one, but a descriptive one. The answer to the question of theexistence of clear cases depends on the concrete content, complexity, andcoherence of existing legal systems. I will therefore not address this issuehere. However, there are good reasons to assume that each legal systemnecessarily entails at least some epistemically clear cases. An efficient legalsystem in which epistemical uncertainty occurs in every single case is hardto imagine. One could name this the thesis of the necessary incorporationof normative-epistemically clear cases.

An example of this kind of clear case, where the formal principle ofnormative-epistemic discretion becomes zero due to the concrete weight ofa material principle, can be found in the asylum case mentioned above.Because of the high constitutional importance of the right to asylum, theadministrative courts are not permitted to use discretion as externaljustification for the use of a normative-epistemic premise on the element ofpolitical persecution. Thus, the FCC will fully review the application of theelement “political persecution” by the administrative courts. If the exist-ence of one single clear case is sufficient to prove the possibility of thebinding of judges to the law, then this defence is successful.

V. Summary

Dworkin’s assault on the positivists’ position on structural (strong) discre-tion is accurate in its stressing the legal internality of all standards appliedby judges. However, these standards do not result inevitably in an exclu-sively correct answer in each case. This indeterminate character makesstructural discretion indispensable, and Dworkin grants judges too littlediscretion. Hart, on the other hand, may be right on the indefiniteness oflegal standards, but overestimates the law-making power of judges andthus argues for too little discretion.

A full picture of judicial discretion depends both on discourse-theoreticalinsights on the structure of legal argumentation and on principle-theoretical insights on weighing and balancing procedures. Thus, itprovides for a substantive-procedural model in which some things areprescribed, others prohibited, and still others remain open. Structuraljudicial discretion, understood as the competence for devising new norms,

526 Matthias Klatt


is defined by the limits of what the law definitely 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 thebalancing against a material principle and, as definite discretion, thepossible outcome of such balancing. Accordingly, the precise scope of judi-cial discretion in any individual case is without exception the result of thisbalancing process. The dynamic nature of discretion is also evident inordinary legal interpretation, as the discursively possible which is identicalto structural discretion is a result rather than the starting point of legaldiscourse.

The limits of structural discretion are defined by the two lines of thediscursively impossible and the discursively necessary. The limits ofepistemic discretion depend on the weight of competing material prin-ciples. Normative epistemic discretion can be separated from structuraldiscretion because there are normative-epistemically clear cases in whichjudges have no competence-competence.

The full picture of judicial discretion as presented here explains both thelaw-making power of judges and the limits of that competence.

New CollegeOxford OX1 3BN

United KingdomE-mail: [email protected]

References

Alexy, Robert. 1989. A Theory of Legal Argumentation. The Theory of Rational Discourseas Theory of Legal Justification. Oxford: Oxford University Press.

Alexy, Robert. 1995. Juristische Interpretation. In Recht, Vernunft, Diskurs. Studienzur Rechtsphilosophie. Ed. R. Alexy. Frankfurt am Main: Suhrkamp.

Alexy, Robert. 1998. Law and Correctness. In Current Legal Problems. Ed. M. D. A.Freeman. Oxford: Oxford University Press.

Alexy, Robert. 2002a. The Argument from Injustice. A Reply to Legal Positivism.Oxford: Oxford University Press.

Alexy, Robert. 2002b. A Theory of Constitutional Rights. Oxford: Oxford UniversityPress.

Alexy, Robert. 2003. On Balancing and Subsumption. Ratio Juris 16: 433–49.Arai-Takahashi, Yutaka. 2000. Discretion in German Administrative Law. Doctrinal

Discourse Revisited. European Public Law 6: 69–80.Arai-Takahashi, Yutaka. 2002. The Margin of Appreciation Doctrine and the Principle of

Proportionality in the Jurisprudence of the ECHR. Antwerp: Intersentia.Barak, Aharon. 1989. Judicial Discretion. New Haven, CN.: Yale University Press.Bix, Brian. 1995. Law, language, and Legal Determinacy. Oxford: Oxford University

Press.Brandom, Robert. 2000. Articulating Reasons. An Introduction to Inferentialism.

Cambridge, MA: Harvard University Press.



mailto:[email protected]

Dworkin, Ronald. 1978. Taking Rights Seriously. London: Duckworth.Dworkin, Ronald. 1986a. Law’s Empire. London: Fontana.Dworkin, Ronald. 1986b. A Matter of Principle. Oxford: Oxford University Press.Dworkin, Ronald. 1991. On Gaps in the Law. In Controversies about Law’s Ontology.

Ed. P. Amselek and N. MacCormick. Edinburgh: Edinburgh University Press.Finnis, John. 1987. On Reason and Authority in Law’s Empire. Law and Philosophy

6: 357–80.Greenawalt, Kent. 1975. Discretion and Judicial Decision: The Elusive Quest for the

Fetters that Bind Judges. Columbia Law Review 75: 359–99.Hart, H. L. A. 1958. Positivism and the Separation of Law and Morals. Harvard Law

Review 71: 593.Hart, H. L. A. 1994. The Concept of Law. 2nd ed. Oxford: Oxford University Press.Hawkins, Keith. 1992. The Uses of Discretion. Oxford: Oxford University Press.Hughes, Graham. 1968. Rules, Policy and Decision Making. Yale Law Journal 77:

411–39.Kantorowicz, Hermann. 1906. Der Kampf um die Rechtswissenschaft. Heidelberg:

Winter.Kelsen, Hans. 1967. Pure Theory of Law. Berkeley, CA: University of California Press.Kelsen, Hans. 1992. Introduction to the Problems of Legal Theory. A Translation of the

First Edition of the Reine Rechtslehre or Pure Theory of Law. Trans. B. L. Paulson andS. L. Paulson. Oxford: Oxford University Press.

Klatt, Matthias. 2004a. Semantic Normativity and the Objectivity of Legal Argu-mentation. Archiv für Rechts- und Sozialphilosophie 90: 51–65.

Klatt, Matthias. 2004b. Theorie der Wortlautgrenze. Semantische Normativität in derjuristischen Argumentation. Baden-Baden: Nomos.

Koller, Peter. 1997. Theorie des Rechts. 2nd ed. Vienna: Böhlau.Kommers, Donald P. 1997. The Constitutional Jurisprudence of the Federal Republic of

Germany. 2nd ed. Durham, NC: Duke University Press.Kress, Ken. 1989. Legal Indeterminacy. California Law Review 77: 243–337.MacCormick, Neil. 1994. Legal Reasoning and Legal Theory. Oxford: Oxford Univer-

sity Press.Marmor, Andrei. 1995. Law and Interpretation. Essays in Legal Philosophy. Oxford:

Oxford University Press.Moore, Michael S. 1989. Authority, Law, and Razian Reasons. Southern California

Law Review 62: 827.Neumann, Ulfrid. 2004. Wahrheit im Recht. Zur Problematik und Legitimität einer

fragwürdigen Denkform. In Würzburger Vorträge zur Rechtsphilosophie, Rechtstheo-rie und Rechtssoziologie. Ed. H. Dreier and D. Willoweit, vol. 32. Baden-Baden:Nomos.

Paulson, Stanley L. 1990. Kelsen on Legal Interpretation. Legal Studies 10: 136–52.Perry, Stephen R. 1989. Second-order Reasons, Uncertainty and Legal Theory.

Southern California Law Review 62: 913.Putnam, Hilary. 1995. Are Moral and Legal Values Made or Discovered? Legal

Theory 1: 5–19.Raabe, Marius. 1998. Grundrechte und Erkenntnis. Baden-Baden: Nomos.Raz, Joseph. 1972. Legal Principles and the Limits of Law. Yale Law Journal 81:

823–54.Raz, Joseph. 1986. Dworkin: A New Link in the Chain. California Law Review 74:

1103–19.Raz, Joseph. 1999. Practical Reason and Norms. Oxford: Oxford University Press.Sartorius, Rolf. 1968. The Justification of the Judicial Decision. Ethics 78: 171–

87.

528 Matthias Klatt


Sartorius, Rolf. 1971. Social Policy and Judicial Legislation. American PhilosophicalQuarterly 8: 151–60.

Schauer, Frederick. 1991. Playing by the Rules. A Philosophical Examination of Rule-based Decision-Making in Law and in Life. Oxford: Oxford University Press.

Sieckmann, Jan. 1988. Das System richterlicher Bindungen und Kontrollkompeten-zen. In Die Leistungsfähigkeit des Rechts. Methodik, Gentechnologie, internationalesVerwaltungsrecht. Ed. R. Mellinghoff and H.-H. Trute. Heidelberg: Decker &Müller.

Sieckmann, Jan. 1990. Regelmodelle und Prinzipienmodelle des Rechtssystems. Baden-Baden: Nomos.

Somsen, Han. 2003. Discretion in European Community Environmental Law. AnAnalysis of ECJ Case Law. Common Market Law Review 40: 1413–53.

Wellman, Carl. 1997. Judicial Discretion and Constitutional Law. Rechtstheorie 28:143–55.



klatt - taking rights less seriously

Documents

limits of discretion

types of discretion

epistemicweak discretion

interpreting discretion

discretion raabe

picture of judicial

ownsources of discretion

member stateshave discretion