Plain Cases – The Motor Car an Authorative Example.
Hart sees decision making in the majority of cases as straightforward. These cases ‘constantly recur in similar contexts to which general expressions are clearly applicable’. In other words clear cut cases where the facts clearly fit the rule of law - be it legislation or common law. He calls these ‘plain cases’.
Hart provides an example using a rule that prohibits vehicles in a park. He focuses on the meaning of the word ‘vehicle’ in the rule and how it is interpreted . Would a car be seen as a fact that clearly fit the rule? Hart believes it would in most peoples minds. This then is an illustration of a ‘plain case’ where the meaning of a rule requires no further interpretation i.e. the rule clearly fits the facts and a car will always be banned from the park.
Applying the Authorative Example – The Roller Skate.
However when it comes to the unenvisionaged fact situations such as a person using roller skates or a bicycle in the park the situation is much less clear. Do these means of transport constitute a vehicle? It is clear these potential vehicles possess some of the features of the already decided ‘plain case’ interpretation of a car as a vehicle but not all e.g. they have wheels but not an engine. However does ‘the present case resembles the the plain case sufficiently in relevant respects’ in order for a decision to be made? Using this methodology Hart states that a person deciding a roller skate is a vehicle based on the plain case ‘precedent’ of a car ‘chooses to add to a line of cases … because of resemblances which can reasonably be defended as both legally relevant and sufficiently close’.
Indeterminacy – Men are Not Gods.
Hart reasons that as drafters of rules are ‘men and not gods’ they cannot possibly envisage every potential situation that may arise. He rightly reasons it is impossible for them to draft rules so detailed that they will directly apply to any case that arises. This leads to what he calls their ‘open texture’, their generality which allows them to cover a wide range of possibilities.
So however smoothly these general rules work in the great mass of cases, a point is reached in where this ‘open textured’ nature leads to cases of indeterminacy, Hart’s hard cases.
Hart states legislators labour under two connected handicaps when attempting to regulate unambiguously and in advance for some unknown sphere of conduct by means of general rules without expecting any form of further official direction in particular situations:
- the relative ignorance of facts i.e. men are not gods able to anticipate all possible fact situations such as skate boarders in the park;
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The relative indeterminacy of aim e.g. what is the rule trying to do or regulate now and in future situations?
If rules could be made to anticipate all eventualities which of course they can’t, the rules of law could be mechanically applied in all cases. Hart calls this ‘mechanical jurisprudence’.
Indeterminacy of Aim – The Electric Car.
Hart uses his ‘banning vehicles in the park’ example to illustrate ‘relative indeterminacy of aim’. Hart reasons that the language of a rule fixes in people’s minds certain clear examples e.g. motor cars, motor bikes and buses that we would all clearly see as vehicles to be banned from the park. The rule up to this point, Hart states, is determinate. By making a choice of this type of noisy vehicle we have established the general aim of the law ‘that peace and quiet is to be maintained in the park by excluding these vehicles.’ However prior to adding this general requirement of ‘peace and quiet’, the aim of the rule was indeterminate making it very difficult to decide if unenvisaged ‘vehicles’ such as a electrically powered toy car fell under the definition of vehicle. The rule doesn’t explicitly allow or disallow the use of silent toy cars as they were not envisioned at the time of drafting. Without this “general aim” being known it would be impossible for the decision maker to decide if a silent toy car constituted a vehicle that should be banned.
Once the general aim of the rule is stated the decision maker ‘can settle the question by choosing between the competing interests (the child’s pleasure v peace and quiet in the park) in the way which best satisfies’ them.
In Harts analysis the indeterminate aim of the rule is made determinate and the meaning, for the purpose of this general rule, of a general word has been settled.
Delegation – Setting a Rate.
Hart then turns his mind to areas where it is recognised that individual cases ‘will vary so much in socially important but unpredictable respects’ that further official direction is required. In these cases legislation ‘sets very general standards and then delegates to an administrative, rule making body… the task of fashioning rules adapted to their special needs’. Hart sights an example of this as legislation requiring an industry to charge only fair rates for work done. Instead of leaving the industry to self regulate, the legislation delegates the task of setting rates to an administrative body. Hart sees the range of possibilities presented to the decision maker in such a case as creating a relative indeterminacy in the initial aim of setting a fair rate. In these cases ‘the rule-making authority must exercise discretion.’
Reasonableness – The Duty of Care.
Hart then discusses the technique of ‘reasonableness’ that is often employed ‘where the sphere to be controlled is such that it is impossible to identify a class of specific actions to be uniformly done or forborne and to make them the subject of a simple rule, yet the range of circumstances though very varied covers familiar features of common experience.’ Hart provides the ‘duty of care’ in negligence is an example of such a rule.
In these cases he states ‘common judgement of what is reasonable can be used by the law’. Reasonableness is established by ‘weighing up and striking a reasonable balance between the social claims which arise in various un anticipatable forms’. In negligence the aim of securing people against harm is therefore indeterminate, only becoming determinate when put in conjunction with or tested ‘against, possibilities which only experience will bring before us’ and a decision is made in the particular case. This variable standard to be complied with is only officially established ex post facto unless a precedent that fits the fact situation exists. Precedents, in these cases, Hart sees as specifications of the variable standards of the rule and similar to the determinations made by administrative bodies discussed in the section above.
Precedent – Indeterminacy of a Complex Kind.
Even though Hart sees the doctrine of precedent potentially providing far more complex indeterminacies than legislation, he believes the English common law system has produced a vast body of rules which are as ‘determinate as any statutory rules’. These determinate precedents, he states, can only be altered by statute.
In discussing this proposition Hart provides three contrasting pairs of facts which he sees as an ‘honest description of the use of precedent in English law’.
Firstly he states there is no single method of determining the rule for which a given authoritative precedent is an authority. However in the vast number of cases it is obvious.
Secondly, that there is often no authoritative formulation of a rule that is extracted from the case. However he believes that when this precedent is applied in a later case there is often general agreement ‘that a given formulation (of a rule) is adequate’.
Thirdly he states that even when an authoritative rule is extracted from a precedent courts are open to apply ‘two types of creative or legislative activity’. Firstly a court can by narrowing a rule extracted from a precedent reach an opposite decision through the finding of an exception i.e. distinguishing a case. Secondly the court widens the rule by discarding a restriction of the rule by applying an earlier precedent or statute where the restriction was not required.
Ronald Dworkin.
Dworkin received BA degrees from both Harvard College and Oxford University, and an LLB from Harvard Law School and clerked for Judge Learned Hand. He was a professor of law at Yale University Law School from 1962-1969. He has been Professor of Jurisprudence at Oxford and Fellow of University College since 1969. He has a joint appointment at Oxford and at NYU where he is a professor both in the Law School and the Philosophy Department. He is a Fellow of the British Academy and a member of the American Academy of Arts and Sciences.
Expanded Text.
Dworkin’s theories are built on criticism of Hart’s theory of positivism. Dworkin’s theory is based on his view that judges do not make law. Dworkin dissects and adds elements to Hart model of primary and secondary rules. Dworkin’s model of judicial decision making in hard cases makes use of “rules, principles and policies”. Sandra Berns labels this ‘expanded text’ which when compared to Hart’s narrower view of the rules of law is an apt description.
Dworkin defines a “policy” as ‘that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community’. Dworkin defines “principle” as ‘a standard that is to be observed, not because it will advance or secure an economic, political or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality’. Rules in Dworkin’s mind have a very narrow defined meaning. They are all-or-nothing, as he states ‘if the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision’.
Dworkin’s “expanded text” therefore has additional elements of community/social principles and morality. Dworkin considers his expanded text as encapsulating the law to be used when decisions need to be made in hard cases by judges. He believes Hart’s theory places ‘policies and principles’ outside of the law, as merely ‘extra-legal standards that courts characteristically use.’
How Are Principles Applied?
Principles in this context meaning both Dworkin’s policies and principles, something Dworkin himself does in his work to simplify his analysis.
In order to analyse the judicial process regarding law making, Dworkin proposes two conflicting scenarios regarding the status of principles:
- They are within the law, binding and must be taken into account by judges making decisions. or
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They are beyond the law and are only extra-legal principles the judge is free to follow if she wishes – i.e. judicial discretion is used.
Straw Man.
For proposition 1 he states, ‘because judges are applying binding legal standards they are enforcing legal rights and obligations’. In other words they are not creating new law.
Under proposition 2 Dworkin contends that when ‘a case is not covered by a clear rule, a judge must exercise his discretion to decide that case by what amounts to a fresh piece of legislation.’ In other words it means judges are part time legislator creating new laws in hard cases. This is how he sees Hart’s view of decision making. He believes there may be an ‘important strong connection between this doctrine’ and the question of which of his two theoretical approaches to legal principles should be taken. Dworkin builds a “straw man” that the positivist’s view appears on the face of it appears to be the correct one. He proceeds to knock down this straw man stating ‘it is entirely unsupported by the arguments the positivists use to defend it.’ Dworkin focuses on the positivist’s view of “judicial discretion” to prove this.
Discretion.
Dworkin views that ‘discretion’ can be applied in either a strong or a weak sense. To illustrate this he uses an example of a sergeant given orders to take five men on patrol. When told to take his five most experienced men, he exercises ‘weak discretion’ in selecting them based on the principle that they must be the most experienced he has. He contrasts this with the sergeant being given absolute discretion to take any five men for his patrol. This he defines as the exercise of strong discretion.
Dworkin concludes the positivists are not using the word discretion in the weak sense. In other words judges faced with no clear rules are not using their discretion to reach a decision following sound legal principles. If they were, they would be following his 1st view above. He believes they are using the word in a strong sense, judges being given absolute discretion to reach a decision in any way they see fit. In Dworkin’s view this confirms his view that they follow his approach in 2 stated above.
Dworkin then proceeds to knock down the straw man by dismissing three arguments he believes positivists would use to support their use of discretion in this strong sense.
Firstly he says a positivist would argue that principles cannot be binding or obligatory. Dworkin dismisses this stating there is nothing in the logical character of a principle that renders it incapable of binding. He supports this view citing that courts are bound by a principle in contract law to consider protecting a party whose bargaining position is weak rather than just dismissing their claim. A judge is bound to follow that principle if it is seen to apply to a particular set of facts, if they don’t then in Dworkin’s opinion they have made a mistake.
The second argument he dismisses is that a positivist would say that even though some principles are binding in the sense that a judge must take them into account they cannot determine a particular result. He argues that officials do not have discretion on whether to follow principles; they must take account of them. If competing principles exist the judge must weigh and balance the merits of each in order to reach a decision.
The third argument is ‘that principles cannot count as law because their authority and even more so their weight are congenitally controversial.’ Dworkin concedes that the weight or authority of a principle cannot be established in the same way that a rule located in an act can. However he argues that a case for its weight is made by ‘appealing to an amalgam of practice and other principles in which the implications of legislative and judicial history figure along with appeals to community practices and understandings.’ He argues a judge is bound to reach an understanding of what the principle requires and to act on it; he has no discretion in the matter.
The straw man has been destroyed in Dworkin’s eye meaning principles should be viewed according to his first proposition above. The fact that Hart, as a positivist, doesn’t in Dworkin’s view accept that principles are of a binding nature supports his theory that judges are part-time legislators in Hart’s model.
When Can a Judge Make New Law in Dworkin’s Model?
Legal Rules of law can be changed (i.e. new laws made) by a judge in some circumstances in Dworkin’s model. He sees principles ‘figuring in the answer in two ways.’
Firstly for a judge to change a law, the change must advance some policy or serve some principle. To ensure the binding effect of rules is not undermined Dworkin states that not any principle will do, it has to be a key principle that is at stake.
Secondly a judge must take account of existing principles that argue against the departure from the existing doctrine. These principles include the doctrine of legislative supremacy and the doctrine of precedent. These doctrine incline towards the ‘status quo…but they do not command it.’
Sandra Berns provides a simplistic model of Dworkin’s view of Hart’s theory. Although simplistic it provides a neat overview of the main contentions. In this model a judge has a primary role to resolve disputes according to the will of the group whose authority has been vested to make such decisions (Parliament in Australia). The judge also has a secondary role of limited and derivative law making. When no rule exists prescribing the solution for a given dispute the judge has discretion to legislate. If Parliament allows the rule to remain i.e. it doesn’t legislate to overrule it, the rule has the same authority as one made by Parliament itself. The judge is simply there to carry out the will of Parliament and apply the rule; the judge is not concerned with the outcomes which follow. The judge, in effect is making legislation.
Critics of Dworkin
Stanley Fish.
Stanley Fish criticises Dworkin’s theory that judges are constrained by this ‘expanded text’ as Berns puts it. Fish looks closely at two discrete assumptions this theory makes:
- that the text itself has a meaning which exists independently of its interpretation; and
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that the judge stands outside the practices that she participates in, as Fish puts it the judge is “unsituated” or “weakly situated”.
Fish argues that it is not, as Dworkin believes, the ‘expanded text’ that constrains judicial decision making but the conventions, understanding, practice and structure of the ‘judicial community’. Fish views each decision maker as an ‘agent embedded in a chain enterprise…a natural heir of the constraints that make up the chains history…a repository of the purposes, values, understood goals, form of reasoning, modes of justification, etc. that the chain at once displays and enacts’. He goes on to say that ‘an agent so embedded would not need anything external to what he already carried within him as a stimulus or guide to right…action; in short he would not need a theory. Dworkin, however manages to arrive at just the opposite conclusion.’ Berns analyses this debate between Dworkin and Fish and arrives at the conclusion that Dworkin is very keen to maintain an internal view of judicial interpretation whereas Fish opens the door to an external view whereby ‘we must understand the nature of the community which interprets the law.’
John Gardner
Gardner in his article ‘Legal Positivism: 5 1/2 Myths’ criticizes Dworkin’s theory that Hart’s ‘judicial discretion’ in hard cases means that judges are part time legislator. Gardner interprets Hart’s use of the word discretion to mean legal reasoning as opposed to Dworkin’s interpretation discussed above. In a similar vein to Fish above Gardner reasons that judges ‘have a professional obligation to reach their decisions by legal reasoning.’
Gardner states that ‘even in a case which cannot be decided by applying only existing legal norms it is possible to use legal reasoning to arrive at a new norm that enables (or constitutes) a decision in the case, and this norm is validated as a new legal norm in the process.’
Gardner provides a simple example to illustrate his point. He cites a section of the Civil Rights Act of 1964 that gives ‘everyone the legal right not to be discriminated against in respect of employment on the ground of his or her sex (source-based legal norm).’ From this he extrapolates that ‘denying a woman a job on the ground of her pregnancy is morally on a par with discriminating against her on the ground of her sex, even though there is no exact male comparator to a pregnant woman that would allow the denial to count as sex-discriminatory in the technical sense (merits-based moral claim).’ Therefore he reasons it would be illegal to deny a woman a job on the grounds of her pregnancy - a ‘new legal norm’. He reasons that as ‘A woman P has been denied a job by D on the ground of her pregnancy (proven fact); thus D owes P a job (a further new legal norm, but a non general one).’
Gardner provides this as an example of ‘legal reasoning- reasoning according to law-because the existing legal norm in premise (the act) plays a non redundant but also non decisive role in the argument.’ As this is a "hard case” the judge ‘necessarily ends up announcing, practicing, invoking, enforcing, or otherwise engaging with some new (legal) norm or norms (which may of course be modifications of existing legal norms)’.
A precedent is set which is quite different to enabling new legislation. As he rightly states ‘a legislature is entitled to make new legal norms on entirely non legal grounds, i.e. without having any existing legal norms operative in its reasoning. A legislature is entitled to think about a problem purely on its merits.’ A judge however may ‘only create this new legal norm on legal grounds, i.e. by relying on already valid legal norms in creating new ones.’
Conclusion - Is Hart’s Judge Creating New Law?
Hart sums up his discussion on the nature of judicial decision making in hard cases stating:
Here at the margin of rules (legislation) and in the fields left open by the theory of precedents, the courts perform a rule-producing function which administrative bodies perform centrally in the elaboration of variable standards.
Is this rule-producing function the creation of new law? Dworkin certainly believes it is. In Dworkin’s view Hart gives judges discretion to apply as they want what he believes should be binding principles in order to reach a decision. Is this really what Hart meant? Certainly Gardner’s view, discussed above, believes not. He believes that judges are applying legal reasoning to reach new legal norms which is very different to the legislative function of creating new laws.
Fish is also very critical of Dworkin’s view of judges being constrained by binding principles when making decisions. Fish believes judges are a community and that that community is embedded with values that guide the way members of the community make decisions.
In order to reach a conclusion on whether Hart’s judge is creating new laws or not I next consider each of Hart’s views using the same headings as the body of this essay.
Plain Cases - Hart certainly did not propose new laws were being created by judges in what he termed plain cases. These cases are determinate, requiring the judge to apply existing legal rules which neatly fit the fact situation in order to reach a decision.
Applying the Authorative Example - These cases were on the borderline of uncertainty. Hart states that when a new case is sufficiently similar to an authoritive precedent judges apply that precedent using legal reasoning in order to reach a determinate decision. Again no new laws have been created.
Indeterminacy of Aim - Once the general aim of the rule is stated the decision maker ‘can settle the question by choosing between the competing interests (the child’s pleasure v peace and quiet in the park) in the way which best satisfies’ them. No new law has been made just the application of a rule assisted by the general aim in interpreting it, a valid legal reasoning technique. The Acts Interpretation Act in Australia for instance allows this method of interpretation.
Delegation - Is this setting new law or interpreting existing law? In the case of the administrative body I believe they are just interpreting existing rules. If the administrative decision is subject to judicial review precedents may be set which are binding on peer and lesser courts but are not as such new laws.
Reasonableness - Again Hart frames his analysis in a form whereby a rule with variable standards becomes determinate through legal reasoning and applied in a given situation as opposed to a judge creating new law. In Australia the variable standard of the duty of care in negligence cases is determined through examining the salient features from previous cases as is only extended incrementally through the application of legal reasoning to the existing determinate situations (salient features) in certain situations.
Precedent – Hart talks of “legislative activity” when courts distinguish cases but is this really what he meant? In Dworkin’s view this is exactly what Hart says it is it is the creation of new law. Gardner would say it is purely an act of legal reasoning creating new legal norms. Fish would say that the judge is participating in the practice of adjudication, which itself provides all the constraints which are required and that the judge is not creating new law.
I am unconvinced by Dworkin’s argument in any of these cases. Hart is not, I believe suggesting that judges in making decisions are creating new law.
So in answering the question “Do Judges Make New Law in Hard Cases” in Hart and Dworkins’ case I will have to say no.
Bibliography.
- Articles/Books/Reports.
Hart HLA, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review.
Herbert Hart, The Concept of Law (1961).
Ronald Dworkin, The Philosophy of Law (1961).
Sandra Berns, Concise Jurisprudence (1993).
Stanley Fish, ‘Working on the Chain Gang: Interpretation in Law and Literature’, in Fish, Doing What Comes Naturally.
Fish, “Dennis Martinez and the Uses of Theory”.
John Gardner, ‘Legal Positivism: 5 1/2 Myths’ (2001) 46 American Journal of Jurisprudence.
Margaret Davies, Asking the Law Questions (1994).
Marianne Sadowski, ‘"Language Is Not Life": The Chain Enterprise, Interpretive Communities, and the Dworkin/Fish Debate’ (2001) 33 Connecticut Law Review.
Hart HLA, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593, 594-606.
Herbert Hart, The Concept of Law (1961), 123.
Ronald Dworkin, The Philosophy of Law (1961) 43-44.
Sandra Berns, Concise Jurisprudence, (1993) 41-43.
Stanley Fish, ‘Working on the Chain Gang: Interpretation in Law and Literature’, in Fish, Doing What Comes Naturally.
Fish, “Dennis Martinez and the Uses of Theory”, 386.
(2001) 46 American Journal of Jurisprudence, 199.