#19671 - 6.B. Legality And Adjudication Legality And Adjudication - Jurisprudence

LECTURE(s)

Two Metaphors

• Judge as “inanimate being” and judge as “umpire” = not for judges to make laws – respecting will of PAR

• BUT e.g., Donoghue v Stevenson – judge-made law par excellence (i.e., “neighborhood” principle)

  • Some counter – CL is law from time immemorial; BUT this is unrealistic

    • E.g., interpretation – not filling gaps in the classical sense, but still some freedom

Part I – Radical Skepticism

• Law GENERALLY doesn’t constrain judicial decisions = law is PERVASIVELY indeterminate

• Associated with American Legal Realism – project was descriptive = show that the then predominant understanding of ADJUD (i.e., formalist) was false

  • There are other forces that dictate the outcome of a case – e.g., ideology of judges, background of the judge, character of a judge, randomness (“what they had for breakfast”), etc.

• Picked up again by Critical Legal Studies movement – diverges for Legal Realism = adds a NORMATIVE goal (not just description); they are leftists, but they understand law like Althusser

  • They wanted judge to become FULLY AWARE their “bias” = way to make egalitarian change

• Singer is member of CLS – several reasons why law is indeterminate:

  • Incompleteness (e.g., Art. 50, Brexit)

  • Contradictions

  • Abstractions (e.g., trial “fairness” – extremely broad meaning)

• ADJUD may still be PREDICTABLE despite the above, BUT predictability isn’t based on law = it’s based on psychosocial factors

• Political goal of CLS = ROL to be ABANDONED

  • It’s a myth that conceals reality, and potentially

  • An ideology that UNDERMINES egalitarian change (cynical reading) – similar to Marxist POV

II – Partial Constraint

• This is the response to radical skeptics; legal positivists support this POV (including Hart)

• Hart’s account of law includes some aspects that seem to limit the amount of indeterminacy

  • RoR – already contributes to limiting the uncertainty that there is in a system = identified valid laws

• In terms of ADJUD, these cure “inefficiency” but ALSO provide some certainty

  • Empower individuals to make authoritative determinations to particular cases

  • Judges will ofc refer to RoR = insert certainty

• In magistrates’ courts, the bulk of the rules are determinate (e.g., rules on speed limits), BUT law can still be indeterminate = explains this as a function of in/determinacy of LANGUAGE

  • In plain cases, there is general AGR; in others, it’s unclear if the word in question denotes an object

    • BUT this shouldn’t be EXAGERRATED

• Law uses language to communicate standards of behavior; natural language (e.g., English) have an open texture – even precise terms become vague when encountered with the unexpected

  • UMBRA and PENUMBRA – language (rules) have a core meaning, but a penumbra too

    • Meaning isn’t clear – unclear if facts before us fall under that term

• Law runs out = in the penumbra, the judge must engage in MORAL REASONING

• We don’t want fully DET laws – for two reasons:

  • Relative ignorance of fact – we can’t predict which possible facts will occur = having vague norms is beneficial – allows us to encompass those unpredictable facts within those norms

  • Relative indeterminacy of aim – we can’t even fix, at time of creating norms, aim for creating norm (e.g., no vehicles in the park = real concern is pollution – if in future water car is INV, we can still use that norm to exclude water car, even though it doesn’t pollute – norm is instrumental to other goals)

• Raz gives similar, but more complex analysis

  • Judges have many law-making powers – regulated vs unregulated

    • Regulated – there are sources that provide correct legal answers (e.g., legal text)

      • Judges can make law by changing the law – two kinds of law-making:

        • Distinguishing previous decisions

          • When distinguishing happens, the judge is not necessarily changing the previous norm – he’s adding a further condition to it

            • By adding this additional condition, the judge shows that that norm can’t possibly apply to the case at hand

        • Overruling – another power

    • Unregulated – there’s a gap in the law

      • Judges make law by filling gaps

        • This is coz of indeterminacy of language or intention; vague; conflicting rules

• Hart – judges behave like delegated legislators; Raz:

  • In UNREG cases, judges must exercise discretion

  • In REG cases, judges have powers to distinguish

• BUT Raz DISAGREES with the claim that judges act as delegated legislator when law runs out

  • Their remit is limited to the facts of the case = can’t lay out whole area of law

  • Judicial law-making is also going to be less stable = exercised frequently; less likely with PAR Acts

• NONETHELESS, within those limited remits, they should do what’s morally best

  • Raz has similar POV, with two caveats:

    • Hart focuses only on REG cases + qualifies claim that judges should behave as LEGIS

Criticism

• Dworkin attacks this claim – three issues:

  • SOP

  • ROL

  • Phenomenology of judging

• Overestimates judicial competence = judges shouldn’t decide based on policy

• But also underestimates them = judges aren’t really subordinate to LEGIS

• ARGs of policy = justifies a decision by showing that it advances a collective goal of community

• ARGs of principle = respects or protects a right

• He then says – judges lack INST capacity for policy (not in their remit to set the goals of the community – LEGIS’ role), BUT can decide for principle

  • Importantly, principles that judges use aren’t random ones – have already been relied upon = judge relying on principle isn’t coming up with something new

    • When someone decides on the basis of principle, they have to respect the “doctrine of RESP” (i.e., must ensure that their decision is consistent with past decisions)

      • If ARGs of principle are about individual rights, then there is a principle of justice that says that people should be treated equally with respect of rights

        • E.g., if X right has been given to Y person in the past = should be consistent

      • Same is NOT true of policy – judge deciding on policy wouldn’t really be constrained by past decisions = that’s why policy is for LEGIS

• In determinate cases, the judge can still depart from that answer if there’s a strong enough ARG of principle = LPs DENY this – UNDERESTIMATES them

• In indeterminate cases, mistakenly gives them power to decide based on policy = OVERESTIMATES them

• ROL objections

  • If it’s true that judges make law, this’d be retroactive application of the law

    • But if they exclusively rely on principles, then they aren’t really making law

• In terms of phenomenology – judges don’t see themselves as making law, or deciding in two stages (i.e., figuring out if law runs out, and then gap filling)

  • Judges see themselves as FINDING law in past decisions – never making law

III – Total Constraint

• Law always provides a single correct answer, BUT this doesn’t mean you can just arrive at answer = you NEED to engage in moral reasoning

  • R people might disagree about what the answer is, BUT there is one correct answer

• Unified picture – doesn’t believe in two-step process = in all cases, judges go through same reasoning

• Judges are bound by law = they don’t “legislate”

• Moral reasoning is needed to determine law’s content; what is law = what is morally best

• Ideal judge = Hercules – the process:

  • Judge must provide best interpretation of previous law = judges construct a coherent scheme of principles that i) best fit previous law, and ii) best justify previous law

    • This set of principles provides the best explanation for judicial decisions that have already been made, legal texts, etc. – all these legal materials flow from these materials

      • When speaking of previous law, he isn’t talking just about branch of law in the specific case (e.g., tort) = it’s the ENTIRETY of law (CLAW, contract, etc.)

        • That’s why he’s Hercules – the task is monumental; BUT this is what judges should try to achieve in an ideal world

    • Can be more than one theory that explains everything; we choose that one that has the most WEIGHT; so you APPLY winning scheme of principles to X case

• Judges must engage in moral reasoning – they’ll exercise some discretion; despite this – one correct answer = that’s their constraint (they must reach it)

  • BUT judges aren’t subordinate

• E.g., Sorenson’s case – injured coz of X; many producers of X = causality issue

  • We must look at what the weightiest principle (Dworkin); Hart and Raz – new law must be made

• All the criticisms contra LPs don’t apply to him (the three); LPs have RESPONSES to all of these

IV – Adjudication and Pluralism

• Rawls – wants theory that accommodates the fact that people have different comprehensive doctrines

  • Same issue with ADJUD – in multi-member court, different judges might have different beliefs

• Dworkin – theoretical DISAG; Sunstein – incompletely theorized AGRs (ITAs)

  • ITAs are valuable:

    • Contribute to social stability

    • Allow people with differing POVs to interact with mutual respect

    • Reduce cost of DISAG – low-level justification will be given

    • Save judicial time/effort

    • Judges not trained in POL PHI

• ITAs are important in multimember courts with diverse judges

READING(s)

Singer, “The Player and the Cards: Nihilism and Legal Theory”, [9 – 25]

I – Determinacy

A – Internal Critique

• Critical Legal Scholars (CLS) = law/rights/theory are INDETERMINATE; two things:

  • Empirical claim about CURRENT theories/ARGs

  • INTERNAL critique = uses premises of traditional legal theory contra itself

    • Scholars claim that their theories lead to certain results – e.g., Radin and property

• INDET is a claim about...