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Law reform role of judges - rules, principles and policies

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Rules Principles and Policies

The Hart-Dworkin debate

The Hart-Dworkin debate, concerned the extent to which a legal system can be regarded as a system of rules and how far account must be taken of other non-rule contributions.


There must be a rule of recognition, indicating how rules are to be identified and their content determined.


In a small and simple society this may take the form of a definitive and exhaustive written list of rules, but in any larger group the rule of recognition is more likely to refer to sources or to general characteristics.


It is rarely made explicit in the English or any other legal system (though some legal systems based on a written constitution come close to doing so), but may be inferred from the way in which lawyers and judges identify rules of law - the judges' decisions being particularly authoritative - and regard some rules as having priority over others.


When the rules run out

When the rules run out, Hart said, the judge has discretion to decide the case.


According to Hart, law is essentially a system of rules, identified and prioritised by the "rule of recognition".


When the rules run out, he said, the judge has discretion to decide the case.


Legal principles

Law contains not only rules but also principles.


The most cogent criticisms of this view came from Ronald Dworkin, who said that law contains not only rules but also principles: in "hard cases" where the rules do not cover a particular situation, or give an unacceptable answer, the judge must be guided by principles.


Such principles are not external to the legal system and used just for guidance, as Hart would claim: rather, they are an integral part of the system. A judge need not follow principles rigidly - if he did they would be rules - but he must take them into account when exercising his discretion.


A judge who departs from principles too often will find many of his decisions reversed on appeal, and to that extent would evidently be making wrong decisions.


Certainly the idea of a persuasive precedent (which is clearly not a legal rule) is hard to explain in positivist terms, and gives powerful support to Dworkin's criticism. The principles that guide the judges' decisions, said Dworkin, are themselves part of the law.


‘Best Fit’

The right answer

The right answer is the one that is "best" both in terms of its fit with the corpus of decided cases and in terms of its content.


Every legal problem, according to Dworkin, has just one right answer, and the judge's task is to discover it. The right answer is the one that is "best" both in terms of its fit with the corpus (body) of decided cases and in terms of its content.


For example, suppose a chess player annoys his opponent by smiling at him: the rules of chess prohibit causing unreasonable annoyance to an opponent but say nothing expressly about smiling, and the referee has to make a decision as to whether it is allowed or not. The "right" answer depends on whether chess is more a form of psychological warfare or a purely analytic exercise, and the referee will decide which explanation is more consistent with the history and practice of the game.


A judge is constrained to act in accordance with legal principle

Dworkin argued that in determining the law a judge is constrained to act in accordance with legal principle….


…. and not (as Hart suggested) free to use his discretion in any way he chooses.


He uses an analogy of a sergeant told to select his five most experienced soldiers, and another of a boxing referee told to award the fight to the more aggressive boxer, and says that although the sergeant and the referee are called upon to exercise their judgement the criteria on which they are to do so are clear, and they certainly do not have the total discretion envisaged by Hart's theory of law.


The legal lottery

The law is reduced to a kind of lottery.


Judges should not have such wide discretion either: if a judge is free to choose without restraint whether to benefit P at D's expense or vice versa, the law is reduced to a kind of lottery.


What we surely expect a judge to do is to enforce the pre-existing rights of one against the other, and where those rights are not clearly spelled out by the rules of law, we expect him at least to apply certain established legal principles.


Persuasive precedents and obiter dicta are evidently not rules - if they were they would be binding rather than persuasive - but are certainly taken seriously by subsequent judges

McLoughlin v O'Brien [1982] HL

Gillick v West Norfolk & Wisbech HA [1985] HL

and in

Munroe v London Fire Authority [1997] CA

When the rules run out, the judges seek to justify their decisions by analogy with past cases (the "goodness of fit" test) or by explicit appeal to general principles (the "best development" test), and do not simply rely on unfettered discretion.


Also here


Central London Property v High Trees House [1947] KBD Denning J


R v R (rape - marital exemption) [1991] HL


Re Pinochet [1998] [1999] HL

Where the rules seem to lead to an unacceptable result, the judges may appeal to principles as justification for setting the rules aside.


This goes beyond Hart's "exercise of discretion": if the rules are clear there is no scope for any exercise of discretion at all. Rather, the judges are weighing a powerful principle "that the rules should be applied" against another principle of fairness or justice or morality and coming down in favour of the latter.


Discretion in sentencing

In sentencing, judges have considerable discretion within the statutory limits.


The Court of Appeal lays down guidelines for each offence. They will not alter a sentence that differs only slightly from the guideline, but the judge's discretion is certainly not unlimited, and a sentence that is wildly out of line (even though within the rules) will be changed and (if too often repeated) the judge criticised.


The importance of principles

Principles are not simply rules of a different kind: they differ from rules in two fundamental ways.


First, the validity of rules is determined by the rule of recognition, which relates to their form and pedigree. A rule is valid if it satisfies certain criteria, normally quite independent of the rule's content.


But legal principles cannot be validated by pedigree: they are "valid" because they are felt to be appropriate by society and, in particular, by the judges.


The rule of recognition cannot bring them in except by saying that they are those principles, which society regards as legally binding, and that is a circular definition which involves an examination of the content of the principle in order to assess its validity.


Second, rules of law cannot conflict: any rule of recognition must necessarily include some test for determining which (if either) of two apparently conflicting rules is valid. In English law, for example, a later statute supersedes an earlier, a statute takes precedence over a common law rule, and directly applicable European law takes precedence even over Acts of Parliament.


But there is no limit on conflicting principles. Suppose, for example, that we regard the principle that "no one shall profit from his own wrong" as a rule of law.


We see immediately that there are exceptions to this "rule" - the doctrine of adverse possession, for example - and we seek to explain them. In terms of rules this is not easy, but in terms of principles it is simply a matter of setting that principle against another (and, in this case, weightier) that "stability and certainty of land tenure is to be promoted".


Principles and policies – Dworkin

The democratic mandate

The democratic mandate - policy should be left to Parliament.


Dworkin also demanded that judges respect the idea of the democratic mandate so far as policy-making is concerned, and leave matters of policy wherever possible to the elected legislature.


Applying principle

Legal principles already exist and have merely to be discovered.


The judges' role is to apply legal rules and legal principles.


Legal principles already exist and have merely to be discovered. They should not make legislation based on policy and affecting retrospectively the rights of the parties in the instant case.


Principle and Policy

Regrettable that judges apply policy considerations.

Dworkin saw it as a matter for regret that judges do sometimes claim to be applying policy considerations when in fact they are looking for legal principles, and a matter for condemnation that they sometimes apply policy in fact as well as in name.


The distinction between principles and policies

He thus drew a distinction between principles and policies, though conceding that most principles could be framed as policies and most policies as principles by anyone so inclined.


A policy, he said, is a standard setting out a goal to be achieved, usually in terms of the economic, social or political well being of the community.


A principle, on the other hand, sets individual rights above communal well-being and imposes a standard of justice or fairness or some other moral dimension.


Matters of policy should be left to the elected legislators; judges should concern themselves only with legal principles, distinguishable from merely moral principles by the fact that lawyers and others regard them as being part of the legal system.


"It’s a matter of principle" argument

Principles, he says, are propositions that describe rights.


Policies are propositions that describe goals.


Individual rights trump utilitarian goals, though in a time of major emergency (such as all-out war) it may be permissible to give goals preference over rights in order to regain or preserve a state of affairs in which principled decisions are once again possible.


In general, however, judges should confine themselves to principles and rights, and leave matters of policy and goals to the elected legislature.


On the whole, the judges tend to agree with this view at least in what they say. Questions of social policy are better left to Parliament, they say, and it is not for judges to interfere in such matters.


A worked example:

R v R [Marital Rape] (1991)

Professor Hart would have said that the judges made new law (by removing the marital immunity) and that this was acceptable where there were no existing rules to cover the situation.


Dworkin would say judge relied on existing principles by looking at the development of the role of women over time and found she was no longer looked on as a thing belonging to the man, therefore the law could protect a wife where there was violence as there is an existing principle of law that assault is wrong.


Hunt v Severs [1994] HL


R v Clegg [1995] HL


C (a minor) v DPP [1995] HL

In these cases the House of Lords reversed the decision on the basis that the existing law was not as clear as it had appeared, but agreed on the policy question.

Lord Goff;

The protection and preservation of the environment is now perceived as being of crucial importance to the future of mankind, and public bodies are taking significant steps to make the polluter pay for damage to the environment, but it does not follow that a common law principle should be developed or rendered stricter to provide for such liability. On the contrary, it may well be undesirable that the courts should do this.

Examples of judicial decisions based on policy rather than on individual rights

Smith v Hughes [1960] DC


Shaw v DPP [1961] HL


Chadwick v British Railways [1967] QBD


Nettleship v Weston [1971] CA


DPP v Majewski [1976] HL


Ashton v Turner [1980] Ewbank J


R v O'Grady [1987] CA


Hill v Chief Constable of West Yorkshire [1988] HL


Alcock v Chief Constable of South Yorkshire [1991] HL


R v Powell [1997] HL

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