Bentham also criticizes judge-made law as a part of the common law. Indeed, he believes that it is so easy to ignore precedents by applying the doctrines of natural law, equity etc, which fail to understand the law itself, and jump straight into criticizing it on the basis on individual cases.10 In an attempt to prevent judges from legislating, Bentham wanted to codify the common law to apply to all circumstances and hence reduce the power of judges.11 Indeed, he wanted to codify;
‘…what acts it is his duty to perform for the sake of himself, his neighbour or the public: what acts he has a right to do, what other acts he has a right to have others perform for his advantage…’12
However, some would argue that universal principles are not totally inflexible and so Bentham was attempting to limit the boundaries of jurisprudential enquiry.13 Moreover, if judges are to simply apply the law without discretion, this would mean tests could not be abandoned even if an absurd result was the outcome.14 In the Spartans’15 case, Edmund Davies L.J. is representative of this positivist train of thought. He followed the legal tests which stipulate that where a defendant who owes a duty of care to a plaintiff breaches that duty and, as a direct and a reasonably foreseeable result of that injury, the plaintiff suffers only economic loss, he is entitled to recover that loss as damages, since the plaintiffs' financial loss was both the direct and foreseeable consequence of the defendants' negligence.16 However, this train of thought fails to consider that for policy reasons it is not in the interests society to find the contractors liable for all three sums of damages.
Like Bentham, Austin’s determination to use legal concepts precisely renders him rather ‘naïve’ as he fails to consider the subtleties of language and fails to read between the lines so to speak. 17 Austin does not seek to provide an explanation for why law is obeyed or whether it ought to be obeyed, but is only concerned with when a legal duty exists.18 Although the contractors where under a duty, this approach, again, fails to consider policy reasons and makes it almost impossible to delve deeper into solving the problems of the case.
The Spartan’s case:
The Spartans19 case makes us think about the idea that the law should not exist in isolation. The criteria each judge uses to identify the law, tells us which jurisprudential theory their arguments are based upon.
Edmund Davies:
Edmund Davies represents the ‘soft’ positivists, such as H.L.A. Hart. Indeed, this modern positivist acknowledged that rules cannot clearly cover all situations and using the doctrine of ’open texture’20 stipulated reasons for why discretion was necessary in rare cases. This concept states that; language is indeterminate, rules are general (e.g. fair, just and reasonable in negligence); and precedent can be narrowed or widened.21 However, according to the positivists, morality is only relevant when already incorporated into the law itself.22 When the law runs out, judges will use their discretion but this is very rare. Edmund Davies uses a common law precedent I.e. the case of S.C.M. Ltd23 (in favour of the plaintiff’s), as a binding authority for the following proposition:
‘…The three heads of damage are the physical damage to the metal which it is conceded to be recoverable, the consequential economic loss of profit from that damage; and the pure economic loss due to there being no electricity to carry out the further melts….’24
Lord Denning :
Lord Denning, to a certain extent, represents the anti-positivist stance as seen in the studies of Dworkin. This theorist is focused on the rights of the individual (Rights ‘as trumps’).25 In the present case those concerned are the electricity board (who are under a statutory duty to maintain supplies of electricity in their district), the plaintiffs (who are entitled by statute to a continuous supply of electricity) and the defendant contractors (who dug up the road). Lord Denning believed that, as a matter of policy, the plaintiffs should recover the £400 but not the loss of profit from the four melts.26 Denning relied on the principal that, where a defendant negligently cuts an electric cable, he should be liable to pay compensation but it equally dictates that there must be a limit on the amount payable.27 The defendants were not in a position to mitigate the damage because they had to rely on the electricity board for a quick repair of the cable, so it would make sense for them to be liable to pay all three sums.
To Dworkin, a separation between the law as it is and as it ought to be is unacceptable and impossible.28 This is because law consists not merely of rules (as Hart suggests), but also of ‘non-rule standards.’29 When a court has to decide a hard case it will draw on these moral and political standards, principles and policies (contrary to the belief of positivists) in order to reach a conclusion.30 There is no rule of recognition which distinguishes between legal and moral principles. In hard case judges make decisions based on their own conceptions and there is always one correct answer to every legal problem.31 It would seem that discarding the tests set out in the Spartan’s case when applying the anti-postivist approach, would result on decisions being concluded on principles and policies due to the intertwinement of laws an morals as suggested by Dworkin. The importance of Dworkin’s attack on legal positivism lies in the failure of such theories to provide either a convincing account of the process of law making or a sufficiently strong defence of individual rights.32 This point is evident when we look at the Mcloughlin v O’Brian case33. Here, damages for nervous shock were sought. The plaintiff sued the defendant driver whose negligence has caused the accident. As English law stood, a plaintiff could recover damages for nervous shock only where he/she had actually witnessed the accident or arrived at the scene immediately after.34 Despite precedents to the contrary, the plaintiff recovered damages ’on policy’ grounds. Dworkin would say that conventionalists believe that in this case there was no law and that the judge must therefore exercise a discretion and make new law to be applied retrospectively.35 For Dworkin however, propositions of law are true if they follow from the principles of justice, fairness, and procedural due process.36 In Dworkin’s vision of ‘law as integrity’ a judge must think of himself not as giving voice to his own moral or political convictions, but ‘as an author in the chain of common law,’ and believes there are no ‘gaps’ in the law.37
As the Spartan’s case is a hard case and there was no settled rule to result in a decision, a decision was made by policy/principle.38 Indeed, by asking whether the plaintiff had the right to a recovery was a matter of principle, and also, asking the question whether it would be economically wise to distribute liability for accidents in the way described by the plaintiff, was a matter of policy. Lord Denning favoured deciding these kind of cases by matters of principles.39
Lawton L.J:
Lawton L.J represents the realist approach to jurisprudential enquiry such as Karl Llwelleyn In the Spartan’s case, he stated that;
‘…negligent interference with such services is one of the facts of life and can cause a lot of damage, both physical and financial…’40
He allowed the appeal by the defendants and would reduce damages.
Realists criticise the theory that the law operates as a system of objective rules.41 Realists attack the positivists’ preoccupation with law ‘as it is’ and the operation of law in its social context.42 Although they accept the need for scientific analysis of the law, the realists reject the single avenue of logic and seek to apply the numerous avenues of scientific enquiry, including sociology and psychology.43 In the word’s of the realist Llewellyn, realism;
‘…is not a philosophy - it is a technology….44
Realists did not whole-heartedly reject the idea that courts may be limited by rules; however, they did argue that the courts exercise a discretion more frequently than we suppose.45 Therefore, their approach emphasises the need for discretion, which, in turn, would mean that it is likely that they would agree with displacing certain tests in negligence. Indeed, realists place greater significance to the political and moral intuitions about the facts of the case.46 They would certainly be at ease with Lord Dennning’s suggestion to remove such tests. The theorist, Leiter, stated that, in deciding cases;
‘…judges respond primarily to the stimulus of the facts, rather than to legal rules and reasons…’ (the ‘core claim’).47
Karl Llewellyn states that to resolve disputes reasonably, is the business of law and the judges, lawyers etc and;
‘…what these officials do about disputes is, to my mind, the law itself….’48
Within the common law, Llwelleyn believes that the practice of law is a craft consisting of a grand style and formal style of judicial opinions.49 The grand style is ‘the style of reason’ which is informed by policy considerations, whilst the formal style is logical and formal and seeks refuge in rules of law.50 Llwelleyn prefers grand style and believes that it is necessary for the
‘…demands of justice…’51
Llewellyn believes that the result of a case is to be judged by reference to whether it is;
‘something which can be hoped, or thought, to look reasonable to any thinking man’.52
To Conclude, from the realists’ point of view, it is necessary to abandon the tests in negligence (as suggested by Lord Denning) and instead, look to the facts of any given case, and the nature of relationships, and each individual case ought to be judged on its own merit
Finally, realists’ argue that judges do not reach their decisions in a formalist way by applying rules, principles and concepts to the facts. They see the legal process as a rationalisation of a result.53
Bibliography:
Books:
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Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory
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Raymond Wacks, Philosophy of Law, A very short Introduction.
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H.L.A. Hart, The Concept of Law, Clarendon Law Series.
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William Twining, Karl Llewellyn and the Realist Movement (London: Weidenfield and Nicholson, 1973).
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Alf Ross, On Law and Justice, transl. Margaret Dutton (London: Stevens & Sons, 1958), 18.
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Brian Leiter, ‘American Legal Realism’ in W. Edmundson and M. Golding (eds.), Blackwell Guide to the Philosophy of Law and Legal Theory (Oxford: Blackwell, 2003).
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Karl N. Llewellyn, Jurisprudence: Realism in Theory and Practice (Chicago, IIIl; London: University of Chicago Press, 1962).
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Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, edited by J.H. Burns and H.L.A Hart (London: Athlone Press 1970).
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Harris, J.W. Legal Philosophies, 2nd edn. (London: butterworths, 1997).
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Dworkin, Ronald, Law’s Empire (Cambridge, Mass: London: Belknap Press, 1986).
1 (1958) 71 Harvard Law Review 593, 601. Also, see H.L.A. Hart, The concept of Law.
2 Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory
3 Raymond Wacks, Philosophy of Law, A very short Introduction, Page 19.
4 Spartan Steel & Alloys Ltd. v Martin & Co. (Contractors) Ltd. [1973] Q.B. 27
6 H.L.A. Hart, ‘Positivism and the separation of Laws and Morals’
8 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation.
10 Bentham, Of Laws in General; ch 19.
17 Morison, John Austin, 192.
20 H.L.A. Hart, The Concept of Law, Clarendon Law Series.
32 For a defence of the rule of recognition against Dworkin’s attack, see Matthew H. Kramer, ‘Coming to grips with the law’ (1999) 5 Legal Theory 171.
33 McLoughlin Appellant v O'Brian and Others Respondents [1982] 2 W.L.R. 982
38 Taking Rights Seriously (1977).
41 (1931) 44 Harvard Law Review 1222.
43 Lloyd’s Introduction to Jurisprudence, 872.
44 William Twining, Karl Llewellyn and the Realist Movement (London: Weidenfield and Nicholson, 1973).
45 A. Hunt, The Sociological Movement in Law, 43. Chapter 3 of Hunt’s book assesses American legal realism.
47 Brian Leiter, Naturalizing Jurisprudence
48 Karl N Llewellyn The Bramble Bush, at 3.
49 The Common Law Tradition, 37-8.
52 Alf Ross, On Law and Justice, transl. Margaret Dutton (London: Stevens & Sons, 1958), 18.