Harts version of legal positivism and Dworkins attack of Harts particular version - Essay Example

What difference does it make whether or not one accepts legal positivism when courts have to reach a decision about open questions of law? Part I – Introduction As is commonly understood, one of the central tenets of legal positivism is the separation of law and morals.1 That is, law as it is and law as it ought to be are separate questions.2 Known as the separation thesis, this tenet encompasses the idea that the validity of a law has no essential connection with the morality of that law.3 Also associated with positivism is the discretion thesis, which describes the fact of judicial decision as such: when there are gaps left by legal rules (i.e., in the so-called “hard cases”),4 judges make new laws in the exercise of their discretion.5 This emphasis on the part played by judicial discretion when courts have to decide open questions of law runs through positivistic jurisprudence from John Austin to H. L. A. Hart.6 The positivist discretion thesis has, however, been challenged by theorists like Ronald Dworkin, Rolf Sartorius and others.7 This paper explores the arguments of both the positivist and non-positivist camps and discusses whether an acceptance of the positivist thesis will cause one to adopt a different outlook with regards to the judicial process in hard cases. Due to space constraints, this paper focuses only on Hart’s version of legal positivism and Dworkin’s attack of Hart’s particular version. These two theorists are chosen because of the prominence of the Hart/Dworkin debate. Part II of the paper summarises the ideas of Hart. Part III provides an explanation of Dworkin’s attack on legal positivism. Part IV then moves into an analysis of whether adopting a positivist outlook will make a difference as to how one views the process of adjudicating hard cases. Finally, the paper argues that Dworkin’s assertion that there is no judicial discretion fails. It concludes that if judges do have discretion in reality, it is possible for one to discern that discretion enters the picture in hard cases without recourse to positivist tenets. Therefore, it matters not whether one accepts legal positivism when courts have to reach a decision about open questions of law. Part II – Hart The main thesis of Hart is that the legal system is a system of rules.8 He identifies two types of rules: primary and secondary. Primary rules are rules of obligation. They are rules of necessity to protect persons’ property. Due to the human weaknesses of vulnerability, appropriate equality, limited altruism, limited resources and limited understanding and strength, these rules of necessity arise to ensure that human beings do not attempt to profit at the expense of society.9 Primary rules, however, carry the problems of being static, uncertain and inefficient. Therefore, human society later develops secondary rules that solve these problems and give meaning to the primary rules. Secondary rules can be classified as: rule of adjudication – this provides a vehicle for resolving disputes as to which rule applies. rule of change – the higher order of this rule is legislation which deals with changing the content of the rules and the lower order is the power conferring rule that allows for a change in legal relations, e.g., contract and marriage. rule or recognition – this rule facilitates the identification of a rule as a rule belonging to the legal system. When someone looks to the statute book, the ratio of a case etc. to find a law, that person is employing the rule of recognition.10 It is clear from the above that Hart’s vision of the legal system is that it is a rule based model. In such a model, rules either apply or do not apply.11 Thus, Hart attempts to account for what happens in the event that there are no applicable rules. He argues that judges must exercise their discretion when the law runs out. It is not possible to treat the question raised by various cases as if there is one uniquely correct answer to be found. The answer adopted by a particular judge will invariably be “a reasonable compromise between many conflicting interests”.12 According to Hart, rules are “open-textured”. They may work smoothly over the great mass of run-of-the-mill cases, but at some point when a hard case arises, their application becomes indeterminate.13 Hart gives three reasons for the indeterminacy of rules. The first reason is the mischief of language. Language itself can be indeterminate with words containing a core of certainty of meaning and also a “penumbra of doubt”. For instance, a statute disallowing the use of vehicles in a park may apply without a doubt to lorries and buses. But what of its application to the use of skate boards and military tanks? It is arguable whether these fall within the meaning of the word, “vehicles”, so the judge has a choice. But Hart is not saying that the judge has a free-rein here as there are constraints to his discretion. He may add a new case “because of resemblances which can reasonably be defended as both legally relevant and sufficiently close”.14 Secondly, rules use standards that are very general, such as “just and equitable”, “reasonableness” etc. giving the judge another avenue for discretion.15 Thirdly, the common law system of precedent is inherently indeterminate.16 Part III – Dworkin Principles and the institutional thesis Hart’s account has met with a sustained challenge by Dworkin, who disputes Hart’s claims on two grounds: (a) Dworkin disagrees with Hart that the law comprises entirely of rules.17 (b) The law, according to Dworkin, is not made up just by rules and there are numerous and varied resources for resolving disputes “according to law”.18 In this way, the law never runs out and judges are always constrained by the law.19 Dworkin’s counter-argument to Hart is supported by his view that along with rules, the legal system also has legal principles,20 which judges are bound to consider where appropriate.21 Principles are part of the legal system and are propositions that exist on a more general level than rules. They are stated or implied by past official acts (e.g., statutes, judicial decisions, and constitutional provisions).22 Dworkin refers to the practice in the legal system as proof that there are legal principles. He cites that in landmark cases where judicial decisions were contrary to the relevant precedent, the court justified their decisions as embracing the true spirit of the law because such decisions were based on principles fundamental to the legal system.23 In other words, the law is a seamless web where in every adjudication, even in hard cases, judges are obligated to follow legal principles developed from previous institutional materials.24 It is, in this sense, that the law does not run out and that judges do not have to resort to discretion.25 Dworkin illustrates how judges use principles to decide hard cases with his example of Hercules, an omnicompetent judge. Hercules would take into account the institutional structure and political philosophy of the constitution, legislations and common law decisions to form a total theory giving principles that explain it all. These are the principles that judges should apply in hard cases.26 The rights thesis There is, however, a problem to this formulation, being the observation that the legal system is littered with an abundance of sometimes contrary materials. Dworkin anticipates this criticism with his idea of “fit”.27 For Dworkin, judges consider a variety of theories to work out what the law requires in a particular case, rejecting those which do not adequately “fit” past legal principles. Among the theories that adequately “fit”, the judge chooses the one which has the best “fit”. The judge also considers which one is better on moral value.28 Besides selection based on “fit” and morality, in his later writings, Dworkin also writes of “integrity”. By integrity, Dworkin means that judges should make their selection based on how to make the law more coherent. Therefore, interpretations which make the law more like the product of a single moral vision are to be preferred.29 Part IV – Analysis If one accepts Dworkin’s account that the law never runs out, that there is a right answer to every legal question and that there is no discretion in the judicial process as the fact of adjudication, it follows that Hart’s account of adjudication is a fallacy induced by the inadequacy of positivist perspective. If Hart’s account of adjudication is indeed a fallacy, a person accepting positivism will hold an outlook of the judicial process that is different from an outlook that is not tainted by weak positivist reasoning. In this sense, it does matter whether one accepts positivism when courts have to decide open questions of law. However, it is the contention of this paper that Hart’s description of the judicial process in hard cases represents a more accurate portrayal of adjudication in reality than Dworkin’s. The remaining of this paper will support this contention first by debunking Dworkin’s institutional thesis and rights thesis and second by, illustrating that Dworkin’s assertion that there is no judicial discretion fails. To the extent that Hart’s thesis on discretion is a more accurate portrayal of reality, it does not matter whether one is a positivist when courts have to deal with hard cases. This is because if Hart’s account parallels the reality, one is able to observe that discretion is applied in hard cases even without accepting the tenets of positivism. That is to say, discretion, being a reality in the adjudicative process, can be discerned by anyone whether he is a positivist or not. Debunking Dworkin’s institutional thesis and rights thesis Descriptively, Dworkin’s institutional thesis is not correct.30 Neither is his rights thesis.31 Although there is no difficulty in concurring with Dworkin that judges consult previous institutional material in making decisions, the same cannot be said of his view that they form a complete theory of institutional material.32 On the rights thesis, it is not easy to surmise that lawyers see the law, as Dworkin does, as a seamless web with answers to every possible problem. Instead, most lawyers see definite rules in many areas of law, and in other less definite areas, they admit that there are doubts. It is arguably futile to quibble with Dworkin – and indeed, this paper does not want to take up that line of argument – that judges refer to institutional material. But there is at least room for argument that institutional material, while relevant, is not conclusive.33 In fact, judges cannot avoid following their own notions of what is required by a policy in a given situation. For instance, in Anns v London Borough of Merton [1977] Lord Wilberforce, said that the neighbour principle in tort would not by itself establish a duty of care situation. The court would have to consider issues of policy in determining whether there are factors that would limit, restrict of negative the existence of a duty of care. Is there really no discretion? The argument that judges have to apply their own notions of what is required by a policy in a given situation can be extended to all modes of judicial reasoning. Whether in deciding cases with applicable rules or hard cases, it is difficult to deny that the consciousness of the judge does come into the picture. A judgment is rarely made in vacuo for judges being human have consciousness, morals and even prejudices that may be unconscious and unknown even to themselves. For example, it is impossible to prevent hidden and unconscious prejudices that are not easily surmised by others – such as plus or minus reactions to women, men with deep or high-pitched voices, people with pronounced gestures or nervous tics etc. – from surfacing.34 Even personal predilections that are detectable do come into play. The following scenario affords an example: when a lawyer approaches a case, he or she looks at the rules and principles of the law, which a judge will apply. However, a really good lawyer does more than producing arguments based on these rules and principles to persuade the judge. He or she will do a little homework on the particular personal predilections of the judge who will hear the case. If the judge is known to be hard on certain things, it might be wise to not allow certain emphases to be made.35 If we discount prejudices against persons, we still cannot ignore the fact that when judges give effect to commonly-held attitudes towards justices, they are in effect only pronouncing what they perceive to be patterns of utility and morals important to the life of a community.36 In fact, Dworkin himself concedes that a judge’s own philosophy is an influence. When the judge has to choose between which bits of materials to reject, and which “fit” to select from the list of possible “fits”, their background morality enters the picture.37 In this case, one cannot accept with comfort Dworkin’s idea that “there is always a right answer to every legal question and that is found in principles”.38 Part V – Conclusion Despite the foregoing, one has to acknowledge that there is insight to be drawn from Dworkin’s analysis. Dworkin’s theory illustrates that a purely rule-based approach to the nature of law is problematic because it fails to account for the sense of moral standards qualifying the rules (e.g., that a rule should not apply if it leads to absurd results).39 Yet, this is not sufficient to counter the argument that Dworkin’s attempt to show that there is no judicial discretion ultimately fails.40 However powerful he puts forward his arguments, judges do not engage in the herculean process of constructing a total theory of law. Neither do they limit themselves to arguments based on principles.41 In fact, not only do they argue based on policies, and not just principles, they might unconsciously allow their arguments to be swayed by their personal predilections. To the extent that judges do have discretion in fact, it becomes irrelevant whether one accepts positivist tenets in making observations about how judges decide hard cases. 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