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Adjudication and Legal Argument
NB: 'GD' means Great Debates by Sandy Steel and Nicholas McBride
What is 'legal reasoning'?
Dickson: 'Legal reasoning' is reasoning from the existing content of the law to the decision which a court should reach in a case involving that issue which comes before it.
Raz: Legal reasoning is simply reasoning about the law - it is not moral reasoning about the law. What a judge should morally do is not the same as what a judge should do according to law.
What is a 'hard case'?
Dworkin offers two definitions of a 'hard case':
1. Where "no settled rule dictates a decision either way"
2. Where "reasonable lawyers will disagree about rights, and neither will have available any argument that must necessarily convince the other"
NB: Dworkin's theory of law as an interpretive practice states that there are no gaps in the law. Legal principles underlying past decisions can always be applied to determine what the law is. These principles are based on moral truths.
o Steel: What if those principles conflict?
Dworkin: You would have to look at why the conflicting moral truths are valuable, and then if you apply the moral truths to the circumstances, there is an objectively correct answer as to which conflicting moral truth should succumb to the other. Dworkin is a
'hedgehog' in that he thinks morality can be distilled down into one master value: equality.
Hart says there are two types of 'hard case':
1. 'Gap' cases a. There is no law governing the case
2. 'Uncertainty' cases a. The language of the relevant legal rule is expressed in such a way that it is unclear how the rule applies in the case
Raz instead uses the language of 'unregulated' disputes, which are those cases where there is no legally binding source for a decision, so no particular decision is required by law.
NB: Bear in mind throughout that Dworkin believes the law is complete, whereas Hart and
Raz believe that there are 'gaps' in the law.
NB: Given the impossibility of foreseeing every possible circumstance, standards must be abstract to some extent. More abstract rules allow judges flexibility in deciding cases, e.g.
injunctions are a discretionary remedy. How do courts decide hard cases?
There are four models on how courts decide hard cases:
1. Hart: Law-making a. In hard cases, a judge can only decide the case by determining what the law should say in the case.
i. Thus, the judge exercises a law-making power.
ii. Dworkin gives two objections:
1. Unreality - Hart's model is not representative of how judges actually decide hard cases. Judges ask what the law is.
a. Hart: Many judges accept extra-judicially that their role involves a law-making function.
2. Retrospectivity - On Hart's model, the court applies law that was not actually in force at the time of the events injustice to the losing party.
a. Steel: Retrospectivity is acceptable in cases where law and morality guide conduct in the same way because the actor has a reason to act in a particular way aside from the law.
b. Hart: Retrospectivity is only objectionable when it would frustrate the LEs of the parties in a hard case,
parties cannot have any LEs.
c. Endicott: Retrospectivity is only objectionable if it makes it impossible for people to be confident that acting on their current understanding of the law will not be counter-productive.
2. Dworkin: Legal principles a. Even if the caselaw and statutes do not provide an express answer, the principles underlying those precedents and statutes have legal force and point towards the right answer in a hard case.
i. This fits with Dworkin's notion of law as an interpretive practice (law as integrity).
ii. Hart: Dworkin's model suggests there is one right answer in a hard case this is doubtful: there are likely multiple reasonable outcomes to hard cases. Not all questions have diametrically opposed answers.
iii. Finnis: According to Dworkin's interpretive theory, judges must balance what best 'fits' and best 'justifies' past political decisions
the instruction to 'balance' must mean to bear in mind all the relevant factors and choose on Dworkin's own interpretive theory, we must reject the right answer thesis.
1. Not choose between multiple acceptable options - the judge must choose the option she thinks best satisfies the 'fit and best light' criteria iv. GD: Dworkin's right answer thesis is merely a way for Dworkin to smuggle his own political views into the law by persuading judges to adopt his model of deciding hard cases.
1. Dworkin: The model merely requires judges to take their own political views into account.
3. Raz: Directed law-making a. Building on Hart's model, courts deciding a hard case exercise a law-making power, but coupled with a duty to exercise it to achieve certain objectives.
i. Similar to Dworkin's model, but Raz's model is perfectly neutral model, because the specific objectives (and conventions for deciding hard cases) are dependent on the specific legal system ii. GD: Raz's model is superior to Hart's for two reasons:
1. It explains why judges might feel legally obliged (not just morally obliged) not to legislate without even being guided by the law.
2. It guarantees that a judge will not give rise to objections of retrospectivity (whereas Hart merely says retrospectivity will not necessarily arise in a hard case).
4. Realism: Fact-focused a. Judges decide a hard case primarily in response to the facts of that case: this approach is backwards-looking rather than Hart's forward-looking model.
i. NB: Legal realists think all cases are decided like this, based purely on the facts - there is no such thing as a 'hard case'.
GD, Leiter: When we are considering what does happen when judges decide hard cases (as opposed to what should happen), the legal realist theory is most accurate.
Lord Goff: "the most potent influence upon a court in formulating a statement of legal principle … in the generality of instances … is the desired result in the particular case before the court"
If this is true, then the conventions that Raz sees as regulating the outcome of a decision in a hard case may really just be conventions as to how such decisions should be explained and presented to the outside world.
There are two source-based ways to eliminate indeterminaces:
1. Rules of interpretation a. E.g. the contra proferentem rule - an ambiguous contract is to be interpreted in favour of the party which did not create the contract b. BUT: Even those rules may contain evaluative or vague terms.
i. Hart: If you try to resolve indeterminacies by introducing interpretative rules, you just create more and more interpretative rules never ends.
2. Closure rules a. E.g. 'the law permits what is not prohibited'
b. Raz claims that closure rules mean that the law is never silent. i. BUT: It is unclear how useful closure rules are in relation to powerconferring rules.
Q: Is it the duty of the courts to give an authoritative ruling, one way or the other?
According to Raz, the law necessarily claims comprehensive authority. If the law refuses to give an answer to a legal dispute, then it has ceased to be both comprehensive and authoritative and so ceases to be a legal system.
o BUT: The law may still claim authority to decide the dispute, but refuse to exercise that authority in a given case, instead deciding to leave the dispute for resolve by some other social form.
It is the constitutional role of the courts to apply the law and develop it where
Parliament has not provided a solution.
How do precedents bind?
Precedent = judicial decision which binds a later court on an issue of law.
There are three main theories as to how precedents bind:
1. Precedents as rules a. The binding part of a precedent is the rule applied by the court.
i. Support: Lawyers often speak of 'the rule' in a particular case, e.g. 'the rule in Rylands v Fletcher'.
b. Three objections:
i. Judicial decisions often disclose no rule that has been applied (might instead just state a reason for the result).
ii. Lamond: If rules are established by precedents, why is there a need for extensive, discursive nature of judgments?
1. GD: Setting out the rationale for the rule assists future ruleappliers.
iii. Lamond: This model does not adequately account for the freedom of a later court to distinguish a precedent: the 'rule' does not apply because of a particular fact, so how can it be a rule?
1. Example 'rule': If A and B, then X.
2. Later judge: If A, B and C, then Y.
3. In the later scenario, A and B both exist but different outcome.
4. Raz: The court in the later case has a power to modify the ratio. It is still bound in that:
a. Modification can only entail adding a condition to the ratio's conditions of application b. The modified rule must still justify the outcome of the earlier case (otherwise it overrules)
c. The 'fundamental rationale' of the original rule must be preserved by the modified rule (so the added cannot be 'it is a Tuesday').
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