Brian Donohue

Date of Award


Degree Type


Degree Name

Doctor of Philosophy


This thesis takes a fresh approach to the problem of whether common law judges have a duty to search for right answers. It begins with Dworkin's basic distinction between judgements (weak discretion) and choices (strong discretion). However, I go beyond Dworkin's distinction by arguing that the imposition of a duty to make a judgement as to a right answer or to make a choice functions within institutional settings as an eminently useful social practice. The first two chapters construct a model for this practice which I label the paradigm of institutional decision making. It is claimed that a study of the paradigm will give us new insight into common law decision making.;To make the case, the purpose of imposing decision-making duties within institutional hierarchies is explained. The explanation is used to argue that the assignment and performance of decision-making tasks can be derived from a shared sense of purpose. I then use this framework to derive the common law judicial duty to search for right answers. The point is made by comparing the purposes which delineate the institutional role of the judge in the common law with the purposes that animate the paradigm of institutional decision making. It is principally Fuller's work, in concert with Dworkin's, that is used to mount the argument for the judicial role within the common law.;My thesis localizes the question of whether judges always have a duty to find right answers to the question of the common law and I reject any attempt to derive such a duty from the concept of law. Finally, the foil of the dissertation is legal positivism. I try to show that the positivist conception of law commits one to claim that a judicial duty to search for right answers would necessarily be frustrated and that this commitment constitutes a serious deficiency in their theory.



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