Sachs J. then goes on to explain that he felt that there was something more to the process than just harmonising reason and discovery, another element involved in his judicial reasoning, which he calls the logic of persuasion to which the logic of justification was central. He states that if there was a gap in the process of reasoning, the judgment would be manifestly flawed and would persuade nobody. He refers to it as being the rhetorical thrust of a judgment by engaging in argumentation that convinces and connects up the specific issues of the case with the wider realms of human experience. According to Sachs J., there is a compelling need to explore the wider dimensions of the issue, to understand the context and to appreciate the impact of the reasoning on those affected by it. This leads him to claim, that in short, it is the legal rhetoric that persuades, and not just the formal logic.
Having explored the thought processes involved in the construction of his judgments, as promulgated by Justice Albie Sachs, it is now much more evident as to what he refers to as being the lie in every judgment. Although his judgments told their story in such an orderly, clear, sequential narrative form, they had in fact emerged from an inchoate, even chaotic, mental firmament quite different from that suggested by their ultimate assured expression.
I will now turn my attention to the view of adjudication as expressed by H.L.A. Hart, who was not only an experienced and successful practitioner of law, but also a professional philosopher being widely regarded as one of the greatest twentieth-century exponents of the position known as ‘Legal Positivism’. In order to understand how Hart purports as to how judges decide cases, it is first necessary to understand his concept of what law is and what is contained within any given legal system. Hart said that law is a system of social rules and that every legal system includes rules that guide law’s subjects, together with rules that identify, change, and apply the conduct-guiding rules, the whole thing bottoming-out in customary rules practiced by officials and actually used as standards of guidance and appraisal.
Hart refers to the rules that guide law’s subjects as being ‘primary’ rules. Primary rules are of the type where human beings are required to do or abstain from certain actions, whether they wish to or not. These primary rules lay down duties and are to do with physical matters. However, according to Hart, as society becomes more complex, there is a need to change the primary rules, to adjudicate on breaches of them and to identify which rules are actually obligation rules. He states that these three requirements are satisfied in each case by the introduction of three sorts of ‘secondary’ rules: rules of change, adjudication and recognition.
Unlike primary rules, the first two of these secondary rules do not generally impose duties but usually confer power. The rule of recognition, however, does seem to impose duties, especially on judges. Hart refers to a rule of recognition as that which constitutes ‘the criteria for the identification of the laws which courts have to apply’. The rule of recognition expresses, or symbolises the basic tenet of legal positivism. It states that there are conventional criteria, agreed upon by officials, for determining which rules are and which are not part of the legal system; this in turn points to the separation of the identification of the law from its moral evaluation, and the separation of statements about what the law is from statements about what it should be.
An example of this in operation may be shown from the proceedings of the South African courts during the time of apartheid. South African courts were called upon to enforce apartheid laws and did so routinely. Many judges found support for this in positivism, and the distinction it makes between law as it is and law as it ought to be. They contended that if an apartheid statute was clear, the judge’s duty was to enforce it, and, if not, there were rules of interpretation the judge had to follow in finding the answer. In their view, the moral responsibility rested with the parliament that made the law and not with the judge who applied it.
In short, the rule of recognition establishes the validity of any law which can in turn be applied to the given facts of any case and thus, from this, the appropriate conclusions can be derived. This may be somewhat compared with what Sachs J. refers to as the logic of justification. As previously mentioned, this was based on logical reasoning using certain accepted rules, principles and standards to arrive at a conclusion that was consistent with those rules, principles and standards which produced replicable results. However, by contrast, Hart makes no reference to the use of principles in his reasoning, only rules. Justification was based on obligation, on the rationale being underpinned by logical necessity, as is the case with the rule of recognition.
As we are aware, the South African Constitutional Court deals only with borderline cases to which there is inherently no straight-forward solution. Hart also acknowledges that, from time to time, it is inevitable that questions will arise to which the law has no ready answer. Furthermore, Professor Hart distinguishes between ‘easy cases’ and ‘hard cases’. For ‘easy cases’, he argued, judges mechanically apply textbook rules of law to the facts in order to reach a verdict. In the ‘hard cases’, conversely, that sometimes arise, the law does not lead to a single determinate solution. He refers to this as being when ‘the rules run out’. This clearly poses a difficulty for the judges who have to decide cases in which such questions arise, because the court must always provide an answer.
There are a number of different ways in which legal rules might fail to cover unusual situations that arise. One way in which it might be said the ‘the rules run out’, as Hart recognises, is as a consequence of the inherent ambiguity of language, rules have an ‘open texture’ and, are, in some cases, vague. If the legislators introduce a rule to deal with a particular set of circumstances, how is the judge to apply the rule to an entirely different type of situation? Hart’s example is the rule, “No vehicles in the park”, introduced to remove automobiles from the area, but then asking whether that rule should apply to motorcycles or roller skates or other objects which may or may not be ‘vehicles’. This quality of language contrasts with systems such as, for example, mathematics and music, whose symbols have precise and universally recognised meanings.
Hart maintains that, with all general rules, the meaning of any given word will be made up of a ‘core of certainty’, central cases where the application is clear, and a ‘penumbra of doubt’ where the application of the rule is uncertain. The word ‘penumbra’ is borrowed from the terminology which is used to describe the different densities of the shadows which occur during eclipses. However, in the present context its meaning is more accessibly conveyed by the vernacular phrase ‘grey area’, within which there will be substantial scope for uncertainty. From these premises, Hart concluded that judges, in ‘hard cases’ inevitably must use their discretion to make new law, to ‘fill in the gaps’, on occasions where ‘the rules run out’. They will, of course, be guided by various sources, such as social policy considerations, but, in the end, the judge will base his decision on his own conception of fairness or justice.
In reading Sachs’ J. version as to how his judgments are devised, created, constructed and formalized, he does not in any instance make any direct reference to having the use of his own discretion in reaching these judgments. He does, however, make reference to another element involved in his judicial reasoning which he calls the logic of persuasion. He mentions that if there was a gap in the process of reasoning that judgment would be manifestly flawed and would persuade nobody. This, according to Sachs J., is overcome by engaging in argumentation that convinces and connects up the specific issues of the case with the wider realms of human experience which does not seem to suggest having the facility of using one’s own discretion. The extent to which judges do have a discretion to decide, almost as they please, what the law is in these type of cases has, of course become one of the most hotly contested subjects in contemporary jurisprudence.
This is one of the main focuses of another theory of adjudication as proposed by Ronald Dworkin. Ronald Dworkin is probably the most influential English-Language legal theorist of this generation and is a tenacious and articulate critic of legal positivism and, in particular, Hart’s version of it. Dworkin begins to explain his theory by acknowledging the fact that there will indeed be occasions when cases come before the court in which there is a larger than normal degree of uncertainty as to the outcome. He terms these as being ‘hard cases’, owing to the fact that there is no pre-existing rule governing the relevant situation, or in which a pre-existing rule appears likely to produce a result that will not seem satisfactory. This differs from the ‘hard cases’ which Hart labels as being when we have merely ‘run out of rules’ in some sense, due to the fact that there is a ‘gap’ in the law or because of the ‘open texture’ of the rules.
Dworkin asks us to consider the American case of Riggs v Palmer. The stark question faced by the court was whether a murderer could inherit under the will of his victim. The will was validly executed and was in the murderer’s favour. But the law was uncertain: the rules of testamentary succession provided no applicable exception. So, on the face of it, the murderer should have a right to get his money. The New York court held, however, that the application of the rules was subject to the principle that ‘no man should profit from his own wrong’. Hence a murderer could not inherit from his victim. Dworkin argues that this decision demonstrates that, in addition to rules, the law includes principles.
Positivism, Dworkin claims, being a system of rules, misses the importance of these principles. Principles do not, like rules, act in an ‘all or nothing fashion’, but act as guidelines that judges must take into account if they are relevant in reaching a conclusion. It is a feature of principles, Dworkin says, that, unlike rules, they have a dimension of weight, or importance. When two principles lead to different conclusions, the judge must take into account the relative weight, the persuasive pull, of each. Rules do not have this quality: if two rules conflict, then only one can be valid.
Dworkin then proceeds to show how Hart’s concept is flawed as it provides no place for establishing the validity of principles. This is due to the fact that they cannot be traced back to any rule of recognition, but rather, must be argued for. It is here that Dworkin distinguishes between two different types of argument; arguments of policy and arguments of principle. Arguments of policy justify a political decision by showing that the decision advances or protects some collective goal of the community as a whole. On the other hand, arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right. If we are to respect individual rights, he argues, they must not be capable of being squashed by some competing community goal.
Having disposed of the model of rules, Dworkin invites us to concentrate our attention on what really happens in a ‘hard case’. For this purpose he entrusts the momentous task to his imaginary judge Hercules, a judge of super-human skill, learning, patience and acumen. Dworkin then considers how Hercules would reach a decision in a ‘hard case’ that might arise before him. In making his decision Hercules is not breaking new ground; he is not operating in an area of what Hart termed ‘open texture’; he is not exercising his discretion as to a just outcome. He is looking at the totality of the objectives on which his society is based, and deducing from these the principles immanent within that society. Having done this, having elucidated these inherent principles, he will be able to see what rights citizens have and thus decide the cases that come before him. The law is already there, not in express form, but, in a form that can be elucidated from societal norms which will always provide the ‘right answer’.
For Dworkin there are always relevant legal standards that will inform the outcome even though, unlike the case of merely deductive reasoning from rules, how to apply them is not always clear and always requires the exercise of judgment. He has consistently maintained that every judicial decision requires discretion understood as the exercise of judgment, as interpretation, and yet none requires discretion of an unrestricted type, such as that which Hart claims that judges have, enabling them to make new law, which Dworkin terms conventionalism. This new law that has been created would therefore be seen to act retrospectively, in that the unsuccessful party would find himself bound by a law that did not exist prior to the case coming before the courts.
In order to illustrate what he means by interpretation Dworkin uses the metaphor of the chain novel in which the judges assume the roles of the consecutive co-authors. In adding his or her chapter each, but the first, has the responsibility to create, as far as they can, a single unified novel rather than, for example, a series of independent short stories with characters bearing the same names. So a judge’s responsibility is to ensure that his judgment fits with what has gone before.
So, according to Dworkin, a decision in a ‘hard case’ must both fit and must be directed to what the judge finds to be the rights of the parties involved, not to the attainment of goals which benefit the community as a whole. Dworkin calls his prescription for the ‘right answer’, in law, integrity. Integrity means consistency in principle with past decisions and requires retrieving that principle in precedent as the justification that best fits the institutional record. Integrity demands that public standards of the community be both made and seen, so far as this is possible, to express a single, coherent scheme of justice and fairness in the right relation. It also requires that the rationalising principle of the decision at hand be part of a pattern that coheres as a whole and shows it in its best light.
Having discussed the theory of adjudication as advanced by Ronald Dworkin, this may be seen to be more in comparison to the thought processes of Sachs J., than the way in which judges decide cases as explained by Professor Hart. Perhaps the most obvious comparison that may be made is the fact that Sachs J. also makes reference to the use of principles and standards in arriving at his conclusions. It is not just a matter of applying legally validated rules until they appear to have ‘run out’ and then making use of one’s own discretion. It is a much more arduous task than this. In the process of discovery, Sachs J. emphasises the importance of the role of innovatory principles, which are also the cornerstone of Dworkin’s theory. The logic of persuasion may also be directly compared to the theory which Dworkin espouses, ‘…retrieving a principle in precedent as the justification that best fits…’. Another comparison that may be made is that Sachs J. states that there is a compelling need to explore the wider dimensions of the issue, to understand the context and to appreciate the impact of the reasoning on those affected by it. This may be seen as the same process in which Hercules engages in, when he elucidates on inherent principles which will confer individual rights on citizens.
Having explored these different theories of adjudication and thought processes involved in the construction of judgments, it is quite apparent that the process of adjudication, especially in ‘hard cases’, is indeed a momentous task. It is an amalgamation of different processes and reasoning to produce an appropriate and ultimate conclusion. No judge will ever be like the superhuman Hercules. Each may have their different and varied ways of coming to conclusions and each may be fallible. However, in using the words of Ronald Dworkin to conclude, ‘It matters how judges decide cases. It matters to those people unlucky or litigious or wicked or saintly enough to find themselves in court’.
Albie Sachs.J. The Strange Alchemy of Life and Law (Oxford University Press, Oxford 2009) pp.32-33.
Nigel E Simmonds, Central Issues in Jurisprudence (3rd edn. Sweet & Maxwell, London 2008) p. 145.
Leslie Green, ‘General Jurisprudence: A 25th Anniversary Essay’ (2005) 25(4) O.J.L.S, 565, p.567.
H.L.A. Hart, The Concept of Law (2nd edn. Oxford University Press, Oxford 1994) pp.78-79.
Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory (2nd edn. Oxford University Press, Oxford 2009) pp.102-103.
Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory (2nd edn. Oxford University Press, Oxford 2009) pp.102-103.
J.G. Riddall, Jurisprudence (2nd edn. Oxford University Press, Oxford 2006) p.48.
Brian Bix, Jurisprudence: Theory and Context (4th edn. Sweet & Maxwell, London 2006) p.40.
Arthur Chaskalson, ‘From Wickedness to Equality: The Moral Transformation of South African Law’ (2003) 1(4) I.J.C.L, 590, p.594.
Anders Axelson, ‘The Discretion of the Certifier: A Drafting Tool Best Left in the Toolshed?’ (2007) 23(4),Const. L.J, 253, p.255.
Ian Mc Leod, Legal Theory (Palgrave Macmillan Law Masters, 4th edn. Palgrave Macmillan, Hampshire 2007) p.86.
Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory (2nd edn. Oxford University Press, Oxford 2009) p.108.
Brian Bix, Jurisprudence: Theory and Context (4th edn. Sweet & Maxwell, London 2006) pp.44-45.
Ian Mc Leod, Legal Theory (Palgrave Macmillan Law Masters, 4th edn. Palgrave Macmillan, Hampshire 2007) p.87.
Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory (2nd edn. Oxford University Press, Oxford 2009) p.108.
Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory (2nd edn. Oxford University Press, Oxford 2009) p.108.
J.G. Riddall, Jurisprudence (2nd edn. Oxford University Press, Oxford 2006) p.88-89.
115 NY 506, 22 NE 118 (1889).
Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory (2nd edn. Oxford University Press, Oxford 2009) p.146.
J.G. Riddall, Jurisprudence (2nd edn. Oxford University Press, Oxford 2006) p.89-90.
Raymond Wacks, Understanding Jurisprudence, An Introduction to Legal Theory (2nd edn. Oxford University Press, Oxford 2009) p.145.
Scott Veitch, Emilios Christodoulidis and Lindsay Farmer, Jurisprudence: Themes and Concepts (Routledge-Cavendish, London 2007) p.116.
J.G. Riddall, Jurisprudence (2nd edn. Oxford University Press, Oxford 2006) p.93-94.
Scott Veitch, Emilios Christodoulidis and Lindsay Farmer, Jurisprudence: Themes and Concepts (Routledge-Cavendish, London 2007) p.111.
J.G. Riddall, Jurisprudence (2nd edn. Oxford University Press, Oxford 2006) p.101.
Scott Veitch, Emilios Christodoulidis and Lindsay Farmer, Jurisprudence: Themes and Concepts (Routledge-Cavendish, London 2007) p.115.
Ronald Dworkin, Law’s Empire (Harvard University Press, Massachusetts 1986) p.1.