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The Lawyers Weekly

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The Lawyers Weekly

Nature of legal rules and judicial rule-following is a subject of permanent philosophical debate. Issues such as judicial discretion and deciding of hard cases still rise controversies. The Lawyers Weekly decided to organise a debate between five preeminent Canadian judges in a tryout to solve the mentioned problems. Before we will begin our dispute I would like to summarise the history of judicial discretion and deciding of hard cases.

The debate begun almost 200 years ago with John Austin, a great legal positivist, and his command theory of law. In his theory Austin stated that the law is nothing more but commands issued by the sovereign (someone who is habitually obeyed) and those commands are backed by threats. Another very important feature of Austin’s theory was complete separation of moral rules from positive law.

After Austin came Herbert Hart, another famous legal positivist, who moved legal positivism in a new direction. Although Hart rejected Austin’s “command theory”, he still insisted on the importance of the separation of law from morality. In Hart’s theory the criteria of legal validity are based not on a sovereign but on a rule of recognition that defines other rules. In Hart’s opinion law is a set of primary and secondary rules. The primary rules obligate directly members of a society and establish obligations and duties. The character of the secondary rules is strictly procedural and their part is to show how to use primary rules and to eliminate the primary rules’ defects. What is specific about rules is a fact that they do not have weight – rule can either apply to a case or not. Once applied, a rule determines the decision.

Another important feature of Hart understanding of law was a thesis that there are situations when no existing rule might be relevant (e.g. hard cases) and a legal case is not governed by any existing rule of law. When this happens judges need to exercise their discretion. Hart distinguished two kinds of notion of discretion: weak and strong. The so called “strong” notion of discretion appears when judges in their decisions are not bound by any kind of standards set by authority. According to Hart, in such situations, so called “hard cases”, where there is no established rule of law, judges are allowed to exercise their discretion and make new laws. It happens because some rules are vague and because some cases arise and no established rule is found suitable. Hart’s notion of discretion is connected with his statements that we can never exclude an element of uncertainty as we are humans and we are not perfect as e.g. gods.

Positivism in general, but in particular Hart’s point of view, was first criticized by Lon Fuller. Fuller’s reply to Hart’s thesis was that it is morality that is the source of law’s binding power. According to Fuller, law is subject to a procedural morality consisting of 8 principles required to make a system of governance a legal one. Another great legal philosopher, who refused a concept of legal positivism was Ronald Dworkin. Dworkin disagrees strongly with Hart stating that judges do not have judicial discretion when deciding hard cases. He tries to prove that law is a complex system where there is always one, correct answer for every case. Dworkin rejected the idea that the judges fill in the gaps left by rules by using their discretion. It is clear for him that apart from rules, there are also principles and policies. The main difference between rules and principles is that rules may apply or not apply (so when a rule applies to a case, at the same time no other rule can apply), while principles may be applied partially. As more than one principle may apply to a particular case, principles have weight. A balance between principles is required in order to make a decision. To make his theory easier to understand, Dworkin created a concept of Judge Hercules, an ideal, immensely wise judge with full knowledge of legal sources and very long time to make a decision. Dworkin states that such a judge will always come to the one right answer without the need to apply discretion. So, in Dworkin’s opinion there is always a correct answer for every legal question.

To make our debate more interesting we have to introduce one more philosopher, Duncan Kennedy. His theory, to some extent, is similar to the one presented by Dworkin. Kennedy refuses legal positivism and states that law is much more than just a set of rules. With his concept of “radical contingency” of the law, he proves that it is hard to predict the final result of any argumentation, as there are many possible, legitimate outcomes. Everything depends on which side will convince auditors. In his understanding of law there is no one objective truth, everything is subjective and might be manipulated. The judges aim is to issue a verdict that accords with his/her sense of justice. In a decision making process judges base their judgement on their experience and knowledge. They can deploy their thoughts in any direction and there is always a kind of uncertainty, which makes unpredictable whether it will be possible to develop a legal argument for the wanted result and persuade an audience. There are many other factors that influence a final verdict and make a result hard to predict. So, in Kennedy’s theories there is no place for Dworkin’s Judge Hercules as in each case more than one answer might be right. The final result of the case is not the objective best result but the best result from the judge’s perspective. For Kennedy law is a tool that might be easily manipulated. He refuses Dworkin’s idea that there is only one outcome from particular principles and rules and no other result can be achieved.

Which of the described approaches seems most plausible and desirable? Here, in The Lawyers Weekly, we had a really strong argument. Is Hart idea of judicial discretion really convincing? Is Dworkin right stating that law is a gapless system of principles, rules and policies? Is it really so perfect? What about Kennedy’s “radical contingency”? Finally, after two days of debate, we refused Dworkin’s approach as we were able to state that there are holes in every legal system and discretion is needed. In the end, after several voting (each staff member had the right to vote) Hart lost and we have chosen Kennedy with his idea of “neither free nor bound” judicial discretion.


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