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Rules Principles and
Policies |
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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.
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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.
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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.
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‘Best Fit’ |
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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.
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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.
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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.
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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 |
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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
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Central London Property v High Trees House
[1947] KBD Denning J
R v R (rape - marital exemption)
[1991] HL
Re Pinochet [1998] [1999] HL
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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.
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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.
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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".
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Principles and policies –
Dworkin |
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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.
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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.
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Principle and Policy |
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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.
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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.
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"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.
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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.
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Hunt v Severs [1994] HL
R v Clegg [1995] HL
C (a minor) v DPP [1995] HL
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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.
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Lord Goff;
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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.
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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 |
