Describing a Legal System

So what does the sceptic observe about legal systems and judicial interpretation? First and foremost is the importance of rules in a legal system. Recall Hume’s treatment of justice.⁹³ Justice is an artificial, not a natural, virtue.

Convention, reciprocity, self-interest, causal reason, limited benevolence and other natural virtues combine to support and produce the complex myriad rules and sentiments that make-up an actual and complete justicial and moral system. Humean justice is inseparable from rules. The rules can convene in an unplanned way (as in the ahistorical escape from the state of nature or as with the formation of language or even as with the common law requirement for consideration to make a valid contract⁹⁴) or they can be the deliberate promulgations of organs of government.⁹⁵ Hume’s aim is to account for the system of constraints on conduct in society. And so Humean justice must not be limited to a branch of moral theory but must also be seen as a part of legal theory.⁹⁶ Rules are central to both. And two of the motives that generally maintain humans’ rule-governed behaviour, Hume argues, are the self-interested desire to give only as long as you get and the ancillary sentiments that arise in favour of the system. Nor does the content of Humean rules of justice have any connection to ‘right’ standards or ideal principles or higher ‘natural laws’. The very artificial nature of justice, on Hume’s view, ties it inseparably to rules.

I shall not here consider the evaluative issue of whether systems of rules achieve best results when they are “perfectly inflexible”⁹⁷ or when a degree of discretion is granted the interpreter. The debate between rule-utility and act-utility could fill (indeed has filled) chapters and books on its own. Hume himself strongly favoured inflexibility.⁹⁸ However the issue will arise tangentially later in this chapter when I discuss my preferred method of judicial interpretation⁹⁹ and again in chapter nine when I consider whether to recommend a theory of constraints on action that emphasises rights.

For now, I merely emphasise the importance of rules.

On the wider issue of describing a legal system I will do no more in the confines of this book than to refer briefly to Herbert Harfs excellent analysis of the concept of law.¹⁰⁰ Hart argues that rules are at the heart of law. Legal rules can be divided into primary dutyimposing rules (like those of the criminal law) and secondary powerconferring rules (like those which allow individuals to change their status, say through marriage or contract, or like those which allow other legal rules to be changed or adjudicated upon). The secondary rules are parasitic on the primary ones. The earlier Benthamic/Austinian model of law as a command or order of the sovereign (what Hart calls the “gunman model”¹⁰¹) is deficient largely because it omits or overlooks these secondary rules which give a legal system flexibility (by providing rules for how to change the rules) and certainty (by providing rules for who is to adjudicate and for what counts as valid rules). And so a legal system can be described as a union of primary and secondary rules.

However, Hart does not claim that all rules, not even all social rules, are legal rules. Rather, legal rules are those social rules which, unlike other social rules such as moral rules, can be identified and validated in each society by a particular test. Hart calls this ultimate test of the validity of a legal system’s rules the ‘rule of recognition’. He says that in any society beyond the most primitive¹⁰² there will be a test for the existence and validity of legal rules.¹⁰³ And that test of an alleged law’s validity will normally be in terms of its source or origin¹⁰⁴ — for instance, was it properly enacted by the legislature or actually decided by a high, final court?

Of course Hart’s description of a legal system is much more involved than this bare summary. However as my interest in this chapter is in judicial interpretation I shall confine myself to that bare summary.

From it can be drawn the main tenets of legal positivism, or at least what I mean by legal positivism:

(A) law is best described or understood as a system of rules (of a particular, recognised sort);

(B) ‘law as it is’ can and should be kept conceptually distinct from ‘law as it ought to be’.

This sketch of the Haitian version of legal positivism, with its emphasis on the role and importance of rules, should suffice as a foundation for what I shall now say in returning to the question of judicial interpretation.

It seems to me that no convincing description of what judges and courts actually do can pretend that all cases are covered by settled rules.¹⁰⁵ Those rules which Hart says can be identified by a particular society’s rule of recognition will not provide a generally agreed upon answer in all cases that arise. That is, it seems an observable fact that judges must at least occasionally look to more than the settled rules when interpreting. This concession, though, does not imply that all legal positivists (certainly not those with a moral sceptic’s bent) must hold that disagreement in such Hard Cases is merely a linguistic or factual one.¹⁰⁶ (In fact the sceptic would most definitely expect there sometimes to be real, substantive disagreement because of varying, and often conflicting, individual sentiments and evaluations.) Nor need the second-order moral sceptic hold that legal rules are as indeterminate and uncertain as moral principles or background social values. Indeed, I think any such opinion is pretty evidently an error. The observable evidence clearly shows that rules are much more often than not more determinate than moral principles. MacCormick puts it thus, “[R]ules of any sort are in their nature apt to be very much more determinate than principles.”¹⁰⁷ This is because, as I hope my London stage musical example from last chapter has helped to illustrate, rules serve to rank priorities, limit the scope of argument and focus dispute.

But to say that rules preponderantly are more certain and determinate than moral principles or standards is not — let me stress this to avoid misunderstanding — to assert that rules somehow provide comprehensive answers to all situations or completely eliminate the interpreter’s discretion. It is a fallacy, or intentional caricature, to elide the latter stance with the former.

Returning, therefore, to my concession that judges sometimes look to more than the settled rules when interpreting, one can see that such an admission need not deny that rules can incorporate nonrule standards or values or that even the most specific of rules leaves some penumbra of doubt, some indeterminacy and uncertainty; they can and they do. My concession then, to make the point slightly differently, is not fundamentally altered by recognising that moral standards can be, and sometimes are, explicitly incorporated into legal rules¹⁰⁸ or even used as part of the criteria for identifying valid legal rules. (Indeed Hart explicitly allows that in some societies {e.g. the U.S.} the rule of recognition can also look to moral content in testing a law’s validity.¹⁰⁹) Where legal rules incorporate moral standards the judges are directed to appeal additionally to morality. Such an incorporation of morality will, as I have argued above in discussing Dworkin’s theory of interpretation,¹¹⁰ increase the scope for individual subjective evaluation and thus frequently reduce the chances of there being a generally agreed upon answer. But there is, in that event, even less doubt that established, settled rules are not resolving the case. So with or without the incorporation of morality, judges do sometimes look beyond validated rules — whether it be to moral standards, or to the general welfare, or to personal preference and prejudice, or to anything else.

Let us look at this more closely. Return for the moment to the archetypal case where the legal rule in question does not explicitly incorporate moral standards.

What do individual judges consider when the settled rules provide no generally agreed upon answer? Of course many — perhaps most — judges will then appeal to moral evaluations. It would be strange indeed, given its causal connection to law, if morality played no role at all in such circumstances. But judges will also often appeal to general welfare policy considerations¹¹¹ and, knowingly or otherwise, to personal preferences and prejudices. This is what the observer would describe. And that same observer would note that institutional constraints come into play¹¹² when the settled rules provide no clear answer — constraints related to the judicial hierarchy, professional conditioning, the widely shared views of what is and is not an acceptable form of judgement, widely accepted doctrines like legislative supremacy and stare decisis, not to mention the judge’s own self-interest in not being over-ruled. Yet even within these institutional constraints the observer would still certainly recognise a measure of discretion available to the judge. And that observer would see and describe the existence of this discretion whether or not the particular judge herself recognised it. She does have discretion as to what to decide, albeit she is constrained in how she reports her decision. In some cases therefore, there simply is uncertainty with much dependent on the particular judge. In those cases, “All that succeeds is success.”¹¹³ And this claim of discretion is no less accurate (indeed more transparently obvious) a description in the non-standard cases where rules incorporate general moral precepts.

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Source: Allan James. A Sceptical Theory of Morality and Law. Peter Lang,1998. — 277 p.. 1998

Describing a Legal System

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