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Source: The Wall Street Journal
A fierce debate, one concerned with the very underpinnings of the law, has persisted among prominent academics for many years now. On one side stands the positivists: law is nothing more than a series of rules created by humans that are neither inherently right or wrong. On the other the naturalists: law is a natural occurrence, closely related to morality, that exists independent of written law. And finally there are the realists who believe that law is simply a tool that is used–indeed, manipulated–by judges to achieve a result considered to be fair and just.
Lawyers, for their part, mostly go on about their day unconcerned about the debate. For most, theories of positive law and natural law are just that: theories. They are useful tools in explaining the law but far from essential. After all, despite its imperfections, our legal system chugs along just fine absent a resolution to the debate. But, understandably, academics are uncomfortable taking such an approach as a comprehensive theory is essential to understanding “what law is and what legal obligations are.” Some have characterized our lack of progress on the debate as being a source of continued embarrassment. We host a debate on these competing theories not because we expect to resolve these disputes any time soon but instead to make the legal community aware of them.
The Theories
Hart describes “the law” as a collection of primary and secondary rules. Primary rules are those that impose duties or obligations, or grant rights or privileges. Secondary rules are those that are about the primary rules, which includes those that allow legal rules to be identified (rules of recognition), to be modified (rules of change), and to be interpreted and applied when in conflict (rules of adjudication). Most important are the rules of recognition since identifying legal rules as distinct from social rules is fundamental to an advanced legal system.
Hart distinguishes between rules and orders. He states that without authority a rule is simply an order. As such, a rule has the additional quality of being normative in that “it has a call on its subjects beyond the threat that may enforce it.” Rules have authority when enacted in accordance with a secondary rule which is traceable back to the rules of recognition. Rules of recognition, being ultimate and therefore untraceable, have authority when accepted by a group as a standard for their conduct.
Hart does not ignore the role of discretion in the law making process. He recognizes that any set of concrete rules will have some uncertainty that must be resolved through the discretion of a judge. This process is explained by reference to the rules of recognition which identify judge-made law–like legislative law, although subordinate thereto–as a source of law.
Dworkin strives to make a case for naturalism by challenging the notion of judicial discretion in Hart’s model. Thus, his attention is focused on exploring those “hard” cases which usually involve judicial discretion. He observes that “hard” case are resolved using standards which do not function as rules but rather as principles. These principles are distinct from rules. Rules are concrete: being all or nothing, although possibly subject to certain exceptions. Principles are abstract: providing direction, but not necessitating any particular outcome, as well as having weight and importance.
Dworkin reasons that when positivists speak of discretion they must not be using it in the weak sense–that is to mean an official must use judgment in applying standards– because this type of discretion, commonplace in all legal decision making, does not offer any insight in distinguishing between rules and principles. He therefore proposes that positivists must be using it in the strong sense–that is to mean an official is simply not bound to any standards. He argues however that this does not reflect reality: absent a clear rule one way or another, it would be a mistake for a judge to not take into account pertinent principles, which are well established in the jurisprudence. This reality would suggest that the official, here the judge, is bound to the standards, here the principles. However, under Hart’s theory, principles are not binding since they are not traceable to the rules of recognition. Dworkin concludes that since Hart’s theory is not able to accommodate principles and since those principles clearly determine legal rights and obligations, it must be flawed.
Kennedy, for his part, throws a legal curve-ball which upsets both Hart’s and Dworkin’s theories. Kennedy imagines a judge confronting a case who has a conflict between the law and how he or she wants the case to come out; he believes the judge is trying to direct his work to bring about an outcome that accords with his sense of justice. However, this does not mean the judge can do what he or she pleases. Instead, Kennedy views the judge as being neither free nor bound. There are constraints–such as the limits of legal argument, the odds the decision will be upheld, one’s reputation in the legal community, the implications for future cases, and ethical considerations–that place limits on what is achievable.
Kennedy’s ideas about judicial decision making is conceptually incompatible with Dworkin’s ideas about principles. Where Dworkin believes that principles are determinative so as to be binding on a judge, Kennedy believes that a judge first decides how he or she wants the case to come out then uses the law to produce the desired outcome. At first blush, it might appear that if Kennedy is right, so too might be Hart. However, Kennedy’s ideas are also functionally incompatible with Hart’s model. Kennedy observes that a judge can, within certain limits, apply principles to undermine a rule or interpret a rule to avoid its application, or circumvent the rule with various other techniques, expanding his theory beyond the strict limits set by Hart’s model.
Our Position
Hart’s model does have a certain appeal in providing a simple and neat model for the law. But, slick as it may be, Hart’s model is incomplete. It models rules but forgets principles. Dworkin demonstrates how fitting-in principles under Hart’s model as either part of the of rules or part of a judge’s discretion is problematic. We, like most lawyers, recognize the importance that principles in judicial decision making. Since Hart’s model provides an incomplete picture of the law, we cannot subscribe to it.
Dworkin’s ideas about principles have their own shortcomings. In particular, Dworkin states that even though the importance and weight of principles are “congenitally controversial,” they are nonetheless determinative. He imagines a case where no rule and only a single principle apply, and concludes the result would be determinative. This may be true for simple cases. But experience tells us this does not hold when multiple competing principles of indeterminate importance and weight are involved.
Thus, at least within those “hard” cases, a judge’s choices as to principles and their importance and weight, have important implications for the outcome of the case. And, importantly, these choices are influenced by the judge’s “personal understand and experience of society.” (R. v. R.D.S., [1997] 3 S.C.R. 484, SCC) Kennedy’s theory of judicial reasoning is an accurate and honest approach. Accordingly, we would endorse it as the correct approach.