My Preferred Approach

In this section 1 will defend my own preferred approach to interpretation. That general preference is for judges who accept some form of legal positivism and who tend to favour certainty and determinacy.

My general preference for an approach which seeks to limit the interpreter’s discretion rests on three foundations. Firstly, it rests on the good consequences that generally flow from certainty. Secondly, it draws on my opinion that legislators and members of the executive are overall no worse, or more incompetent, than judges. Thirdly, it depends upon an evaluation that there are good moral grounds for insisting on a separation of law and morality.

Differing approaches to interpretation can and do alter the scope judges have to rely on their own subjective views. Natural law doctrine (and Dworkin’s disguised version of that doctrine) demands that at least sometimes recourse be had to the evaluator’s sense of morality when interpreting law thereby leading to “... a more speculative and enterprising handling by judges of their traditional materials and data.”¹¹ One particular institutional constraint, that of not relying on one’s own moral evaluations but of deferring to the (assumed for my purposes to be elected) legislature, is therefore removed.

Of course one might argue that certainty of outcome is less important than other ends, notably that judges have the room and power to protect what they see as individual claimants’ moral rights. Such arguments implicitly signal the belief that judges deserve more trust than legislators or executive office-holders. The final, unconstrained determination of what moral content a law should or should not have, on this view, is best left to the judiciary. This of course raises a number of ancillary matters. There are questions of democratic legitimacy. There are questions of training, in particular what special abilities a legal education and the practice of law give one to make moral evaluations. There are also the characteristic institutional influences bearing on each branch of government to consider and even the efficiency and ability of each branch to allocate resources.

I will deal with these ancillary matters only briefly here, and again tangentially in chapter nine.

I do not wish to enter into a lengthy discussion of democratic theory. The notion of ‘democracy’ clearly has a multitude of senses and great emotional sway. But it is not the word itself, and how it is or should be defined, that interests me. What does interest me is considering whether there are grounds for placing greater trust in judges than in others with power. On a personal level this seems implausible. Those about to become judges are no more personally virtuous than those about to become legislators. Nor are there any reasons for thinking a legal education and career as a lawyer leads to greater moral perspicacity and acumen. A cynic would argue just the opposite. And the moral sceptic would reject any objective metaphysical basis to morality anyway. In that case, why should the pronouncements of judges represent better moral standards than those which are the result of the more or less widespread negotiation and compromise characteristic of legislative action?

Maybe it is because there are institutional factors which leave the judiciary better situated to make moral evaluations.

Moreover, on fundamental moral issues central to society — debates like those over abortion, capital punishment, affirmative action and civil liberties — the protections against overt political interference which arguably facilitate the judiciary’s adopting a less biased vantage might be ineffective or otiose. Human judges might simply be incapable of such disinterestedness on such issues. Nor might the disenfranchisement of the public in resolving such issues have desirable long-term effects. (E.g., there is a price to be paid when the legislature knows that all difficult social policy questions will ultimately be resolved by the courts. Legislators can then easily either ignore such issues altogether or they can take positions which they do not personally favour, in the confident expectation that the courts will later overrule them.)

I do not say that I would like judges always to defer to the executive and legislature. I merely say that the legal positivist is more inclined to do so and that there are few, if any, generally applicable grounds for believing judges to have superior moral expertise or impartiality.¹²² However my final argument for preferring the legal positivist’s approach — in particular for insisting upon a separation of law and morality — is itself a moral argument¹²³ (i.e.

To my mind there are persuasive grounds for following the legal positivist in distinguishing moral standards and moral obligations from legal standards and legal obligations.¹²⁴ I have already argued that the judicial process and legal interpretation are better described by an observer than by a participant. Part of that description is a concession that settled rules cannot always direct judges. Yet while judges, in fulfilling their jobs, duties and tasks as judges, frequently rely on more than the settled rules validated by the rule of recognition in declaring winners and making law, it remains an open question whether any of those additional constraints and influences ought to be included within the ambit of what constitutes law. Certainly just because judges occasionally, or even regularly, rely on considerations of type X it in no way follows, indeed it would be a fallacy to say on this basis alone, that X must be legal. What should and should not constitute law, at this fundamental level, depends on one’s moral theory. As a moral sceptic I strongly prefer not to include these additional constraints — even where the constraints are recognised moral standards — within the ambit of law. I admit they influence many judges; I say, nevertheless, that there are good consequences in not including them within the ambit of law.

Admittedly this is partly a matter of attitude. But this attitude in turn rests or supervenes on a particular view of the factual consequences which will result from an insistence on including only valid rules¹²⁵ within, and deliberately excluding moral standards without, the aegis of law. Those alleged consequences are twofold.¹²⁶ Firstly, a description which distinguishes law (as 1 have limited it) and morality is clearer and more lucid, thereby allowing one to see better what it is that binds judges (and citizens) in various circumstances.

Of course these two advantages of legal positivism, its better description of the legal process and its emphasis on the external nature of law, become blurred in practice. They end up being differences of degree only. For instance, the insistence on distinguishing moral standards and obligations from legal obligations and standards does not prevent the deliberate incorporation, by legal rules, of particular moral principles, as I have allowed. It is simply that in such cases the legal positivist says inclusion within the ambit of law depends upon some rule and that rule’s incorporation of morality. This insistence preserves the clarity and external, tangible, ‘black-letter’ quality of law.¹²⁷ Likewise, the legal positivist does not, or at any rate need not, deny that morality itself has an external aspect. Even the moral sceptic accepts this. “Moral attitudes have been mistaken for responses to objective values partly because they do have a genuinely external origin — the demands and pressures of society at large.”¹² Nevertheless the extent of this external aspect varies between morality and law. Thus in comparing these two types of constraints on action it is the latter which is more formalised and institutionalised (being supported by a whole range of social institutions like courts, police and lawyers), more tangible and real (existing predominantly in some type of written, direct form), more enforced and more objective (just because it is more visible and formal).

Can anything more be said for the moral sceptic-cum-legal positivist’s distinguishing of law from morality beyond its providing a more accurate description of the judicial process and its highlighting the relatively less subjective nature of legal rules? Probably not if one is considering a more or less acceptable legal system. But there is a further advantage where one is considering a wicked legal system.¹²⁹ In that case it is beneficial and useful to see that law is not a species or sub-group of morality (i.e., there is no necessary connection between the two). One can then admit that the law requires X but that morality requires Y and make one’s choice. In contrast to this is the view that the requirement to do X is, where sufficiently wicked, not truly law at all, however clear and straightforward the particular enactment might be. However, a consequence of asserting that the requirement to do X (for example, to turn in all Jews) is not really law is the risk that many will find this assertion incredible — to say nothing of the potential consequences of affording individual consciences a say on the validity of each and every law. As Hart suggests, it is far better to admit X is law and then to proceed to say it is a bad, evil, wicked law¹³⁰ (which, according to the degree, may warrant disobedience and if so, depending on the type of regime, will require one to choose between Gandhi-like civil disobedience, draft dodger-like flight and French Resistance-like armed resistance). Besides, contrary to what exponents who reject the separation of law and morality might expect, intertwining the determination of legal status and the evaluation of moral value may well lead many people to reason:

(A) ‘This is law, therefore it is right’

rather than (B) ‘This is wrong, therefore it is not law.’¹³¹

But by separating the two issues, (A) is foreclosed as well as (B) and both legal validity and moral worth must be decided independently. While this will make little or no difference in a generally benevolent or acceptable legal system — the legal rules being then generally aligned with moral standards — it will make a difference in a wicked legal system. People will be forced to see that what is obviously law is nonetheless just law, it has no claim to an automatic moral endorsement. The legal positivist says this will have better consequences than any concatenating of the two issues and as such the insistence on separating law and morality can be seen as a moral claim. In this consequentialist sense, it is good to understand law and morality as separate.

As for Dworkin’s purportedly via media, he must either deny that his soundest, best fit theory of law can ever conflict with morality (which some natural law adherents would do but which Dworkin explicitly does not do¹³²) or he must concede that laws only have a moral justification in good systems not wicked ones. But the second alternative, in my opinion,¹³³ is tantamount to an implicit acceptance of the legal positivist’s premisses. Accepting that his own best or soundest theory of law allows for no real distinction between identifying and justifying law, Dworkin’s only way out is to say wicked systems generate no legal claims — which is a version of the natural law position he rejects. Clearly wicked legal systems cause great difficulties for Dworkin forcing him to suggest judges should lie^13r and to distinguish a preinterpretive sense of law — i.e. law in a wicked system which law is thus morally unacceptable — from an interpretive sense — i.e. law one could accept morally.¹³⁵ This, to me, is either legal positivism in disguise or sophistry and casuistry.

In this section I have made a case for preferring judges who tend to favour certainty and so who tend not to look behind rules. That case, being very much a consequentialist one, suffers the same infirmity as utilitarian positions generally; it gives no sure answers, only a sure approach — opt for what appears to have the best consequences. However, as I made clear in Part A of this book, people can and do disagree about likely consequences and anyway individuals’ preferences are disparate and diverse. Accordingly, as my approach makes no pretence to provide sure or right evaluations — rather it purports to limit indeterminacy in a radically subjective moral world — it would be naive of me to expect everyone else to prefer a judiciary full of moral sceptics-cum-legal positivists. Some would dispute what I say are the likely consequences of having this type of judiciary; others would not find it desirable anyway.

The extreme unlikelihood of there ever being a bench full only of my preferred type of judge need not be too discouraging however. Indeed I have come to the somewhat paradoxical view that from the spectator’s point of view a legal system whose judges adopt a variety of different approaches to judicial interpretation is not only inevitable but desirable. When evaluating a legal system containing many judges the important issues are what balance of approaches is best and whether there is any way, in the uncertain swirl of human affairs and judicial appointments, to come close to one’s desired balance. It may, in the end, be necessary to argue for a particular approach in the full knowledge that there will also be other approaches represented. A court full of Dworkins would mean that the making of social policy had shifted largely to an unrepresentative few and that predictability required a sound knowledge of the size of the particular judge’s foot. Conversely, a court of only Harts might have bought certainty at a cost in unadaptability to changing circumstances it need not have paid in full. But neither of these extremes, in practice, will be fully realised. Conflicting approaches to interpretation will co-exist in the same legal system. From the disinterested observer’s vantage, therefore, a mixture of interpretive approaches will seem inescapable. From that same viewpoint the real issue, the practical struggle, will be about what that mixture is.¹³⁶ This dispute will recreate at a higher level the original dispute about preferred approaches and be just as contentious. Yet unlike the original dispute, in the higher level context there will be room for the odd Hercules who thinks he can always discover right answers, provided, that is, there are institutional constraints to ensure that there are not too many such Hercules and that all but the most clever are overturned on appeal.

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