Modern Legal Theory & Judicial Impartiality

Ofer Raban

• Publisher: Routledge-Cavendish
• Year: 2012
• ISBN:
  9781135311308
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book argues that at the core of legal philosophys principal debates there is essentially one issue judicial impartiality. Keeping this issue to the forefront, Raban's approach sheds much light on many difficult and seemingly perplexing jurisprudential debates.

Modern Legal Theory and Judicial Impartiality offers a fresh and penetrating examination of two of the most celebrated modern legal theorists: HLA Hart and Ronald Dworkin. The book explains the relations between these two scholars and other theorists and schools of thought (including Max Weber, Lon Fuller, and the law and economics movement), offering both novices and experts an innovative and lucid look at modern legal theory. The book is written in an engaging and conversational style, tackling highly sophisticated issues in a concise and accessible manner. Undergraduates in jurisprudence and legal theory, as well as more advanced readers, will find it clear and challenging.

Chapter 1
Introduction: Law and Impartiality

We all agree that judges must apply the law impartially. What do we mean by that? According to the dictionary, impartiality pertains to ‘equal treatment’: partiality is a bias, a slant, a bent; impartiality does not tend towards either side. These spatial metaphors are of limited value: a judge is to treat both sides equally – but in what way? Surely the resolution can hardly treat equally both sides. But then impartiality resides not in the resolution but in the decisionmaking process: we need to know the reasons leading to a resolution in order to assess whether partiality is an appropriate charge. A partial resolution is reached through a reasoning process that is skewed in some way. But then again, in what way?

To be partial towards something is to have a preference for it. Partial adjudication consists in giving preference to a certain person, or a certain group, or a certain interest, or a certain ideology, or even a certain moral position. Now obviously, a judge may prefer a person or a group or an ideology without being partial: a preference for an honest litigant over a dishonest one, or a preference for a democratic form of government, would not constitute condemnable judicial partiality. The sort of preferences which implicate the danger of partiality must be, in some way, unjustifiable.

Preferences can be unjustifiable because they are wrong; or they can be unjustifiable because they appear to be neither right nor wrong (hence ‘unjustifiable’): we say of some beliefs that they are ‘simply a matter of preference’, suggesting that they are not open to a contradictory demonstration. These preferences are controversial: to call something a ‘preference’ is to point to the fact that others do not prefer it. It is this latter group of unjustifiable preferences which causes the gravest concern to legal theorists, because the danger of these preferences playing a role in adjudication (of judges making legal determinations being swayed by such preferences) is enormous. Many of our respectable political, moral, and social beliefs appear to belong to this category of preferences; and, unsurprisingly, these are tremendously relevant to the resolution of countless legal disputes. Beliefs concerning the obligations that people owe each other, the appropriate limits of governmental powers, the sort of guarantees that society owes its individual members, and many more – all appear to include numerous matters of preference (and all are highly pertinent to countless legal questions and disputes). And yet, their use may constitute partiality. What’s more, we tend to think that these preferences often reflect the self-interest of the beholder: many think, for example, that opinions on the importance of material equality are a matter of preference, and nobody is surprised that poor people tend to consider material equality as far more important than rich people do. Thus, if judges employ such preferences in their decision-making process, legal determinations may be skewed in the most ominous of ways – through the self-interest of the decision-makers (including, for example, the self-interest of their social or economic or ethnic class).

This difficulty is a major preoccupation of modern legal theory. The central project of many theories is to establish the impartiality of proper legal interpretation (by describing a methodology which excludes preferences from that decision-making process) – while many of their opponents seek to debunk that impartiality.¹ Few discussions in legal theory actually employ the concept of impartiality; but that concept looms large over many claims and disputes, lending them much of their significance. So approaching the study of jurisprudence with the (rather straightforward) issue of impartiality in mind affords a superb perspective on today’s central jurisprudential debates. Who is correct in these disputes is to be judged, of course, by the merits of the respective arguments, and this book will examine these arguments closely – often engaging in rather detailed analysis. But the book will consistently return to impartiality as a platform from which to survey the meaning and significance of these controversies.

Our look at legal theories, and their relation to the notion of impartiality, begins with modern legal positivism and the theory of HLA Hart – thereby skipping all of Hart’s positivist predecessors. The reason for this is simple: Hart’s theory is a clear and straightforward formulation of legal positivism, and a conscious attempt to overcome some of the shortcomings of previous positivist theorising. The book also ignores the theory of natural law, which dominated the scene for many years, and which was demolished and replaced by the rise of legal positivism. The reason for this is that the problem with which we are concerned – that of judicial impartiality – takes a radical turn in the modern age with the expanding notion of preferences. According to natural law theory, legal interpretation must be guided by universal moral truths, which are, in principle, accessible to man. It is only when preferences came to encompass moral beliefs – as they so spectacularly did in the modern age – that natural law theory came to be regarded as unacceptable. Indeed, it is only when moral choices became ‘relativised’ that the problem of judicial impartiality assumed the prominence which, under various titles, it still enjoys today. Natural law theory truly belongs to a different age: its demise coincided with the demise of the old moral, religious, and metaphysical grounding which also brought the problem of judicial impartiality to the fore. This is not to say, of course, that natural law theory does not concern itself with impartiality; it certainly does! Impartiality is a concern for any theory of legal regulation. It is just that the solution of natural law to that problem – grounding proper adjudication in universally valid principles of human morality – is no longer a serious option for us today. Nevertheless, legal positivism came to dominate legal theory not merely by spurning the solution offered by natural law, but by offering its own solution to that problem. It is to that solution, and to the legal positivism of HLA Hart, that we now turn.

1    Joseph Singer puts a somewhat similar point in the following way: ‘many current scholars … attempt to recreate, to some extent, the idea of an objective standpoint that judges can use to adjudicate complex legal issues without taking sides in desperate social struggles. Each of these schools attempts to answer the question “why isn’t that just your opinion?” by reference either to an impartial criterion for judgment … or a neutral decision procedure for adjudicating claims …’ Singer, 1988, pp 516–17.

Chapter 2
The Legal Positivism of HLA Hart

I Hart’s Thesis

The theories of law with which this book is concerned attempt to explain what makes a legal claim or a legal proposition legally valid: they offer a description of how it is determined that the law requires X, or that it does not require Y. Those theories that aim at establishing the impartiality of legal determinations seek to exclude the use of preferences from that decision-making process: establishing what the law requires, they say, is a decision-making process which doesn’t take preferences into account. HLA Hart’s theory of law is such a theory. It is also a theory that is surprisingly commonsensical. According to Hart, the law is a collection of rules whose status as legal rules is a consequence of some official action (they are, for the most part, declared by a legislature or by courts); and the application of these legal rules involves a determination of whether a case falls inside or outside the conventional meaning of the words appearing in them. Section I of this chapter will elaborate and explain these claims, and will also examine how they seek to solve the problem of judicial impartiality. Sections II and III will criticise Hart’s claims, as well as his solution to the impartiality problem. Section IV will briefly survey the state of legal positivism after Hart.

Identifying the Authoritative Legal Rules

Hart’s theory of law, appearing in its most complete formulation in The Concept of Law, articulates roughly two stages for determining what the law requires (two stages of legal interpretation): the first involves the identification of legal rules, the second the identification of the requirements of these rules vis-à-vis a particular case.¹ Together these two processes establish what the law says – or whether it says anything – on any given matter.

According to Hart, all mature legal systems have a test for the identification of legal rules, a test which all legal practitioners know and agree upon. Hart calls this test the ‘rule of recognition’. Only rules which satisfy that test are recognised as legal rules (rather than moral rules, or social rules, or what have you).² The ‘rule of recognition’ specifies certain ‘sources of law’ where legal rules are to be found: these sources include the collection of statutes passed by parliament, judicial precedents, the decisions of administrative agencies, and other such authorities.³ If a rule is found in those specified sources, it is a legal rule; if it ain’t there – it ain’t legal. As there are various legal sources in a complex, modern legal system, these sources are ranked for relative supremacy within the ‘rule of recognition’ (for example, the ‘rule of recognition’ may declare that a legislated statute is superior to a judicial precedent): this guarantees that it will be possible to identify one authoritative legal rule in cases where rules taken from different sources conflict. The ‘rule of recognition’ is, therefore, a rather complex theoretical entity: it contains references to various legal sources, as well as a ranking of these legal sources in order of supremacy. It may take quite a few pages to put this ‘rule of recognition’ on paper. Yet, however complex or lengthy, the ‘rule of recognition’ must be shared by the legal practitioners of the legal system to which it belongs: they must agree as to what is the governing ‘rule of recognition’. The legal practitioners must share the test for the identification of legal rules.

According to Hart, it is the very fact that practitioners share the ‘rule of recognition’ that constitutes that rule: the ‘rule of recognition’, says Hart, exists by virtue of being accepted as a normative standard and followed. What does Hart mean by that? He means that the ‘rule of recognition’ exists as the test for valid legal rules because people accept it as a test and abide by it: it is, in other words, a conventional standard. Here is an analogy: the meaning of a word is what it is by virtue of its being accepted as such – that is, by virtue of the fact that we all agree that this is its meaning. The meaning of a word is also a conventional standard; it is constituted by conventional agreement. (Indeed it has been suggested that Hart’s idea that the ‘rule of recognition’ is a conventional standard has linguistic conventions as its very model.⁴) Thus, just as the correct meaning of words (or the correct test for using them) is supposedly constituted by conventional agreement among speakers, so is the ‘rule of recognition’ (or the correct test for the legal validity of rules) constituted by agreement among those who are practising law.

Now Hart concedes that the ‘rule of recognition’ is not explicitly articulated, and certainly not in its entirety: people are not in the habit of citing a ‘rule of recognition’ when they identify legal rules.⁵ Nevertheless, says Hart, we know the rule exists, and we know what it requires, because this is ‘shown in the way in which particular rules are identified, either by courts or other officials or private persons or their advisors’.⁶ One can detect the ‘rule of recognition’ by observing the way in which people (private individuals, lawyers, judges, state officials) identify legal rules: people look for legal rules in certain ‘sources of law’ (the pronouncements of the legislator, the decisions of courts, the promulgations of administrative agencies), and in doing so they follow the ‘rule of recognition’ – thereby making it known. What’s more, deducing the ‘rule of recognition’ from the actions of these people does not involve any complicated evaluative or controversial reasoning: according to Hart, this is a straightforward factual observation as to where people go when they look for legal rules.⁷

So the ‘rule of recognition’ – which can be identified by observing the actions of legal practitioners – points practitioners to the ‘sources of law’ where legal rules can be found. Sometimes the source will not present the practitioner with a ‘ready-to-use’ rule: Hart thinks that judicial decisions, for example, may lay down a precedent without explicitly articulating its governing rule.⁸ In such cases, the person seeking the legal rule must extract the rule from the precedent before her (she must grasp the rule laid down by the precedent). Yet, ultimately, all rules of law are linguistically formulated rules using general classifications: Hart says that ‘all rules involve recognising or classifying particular cases as instances of general terms’; rules of law ‘refer to classes of persons, and to classes of acts, thing, circumstance; and [the law’s] successful operation … depends on a widely diffused capacity to recognise particular acts, things, and circumstances as instances of the general classification which the law makes’.⁹ In short, the law consists of rules, found in certain recognised sources identified by the ‘rule of recognition’; and these rules divide the world into classes of ‘acts, things, or circumstances’ using general words (for instance, the class of ‘assaults’, the class of ‘contractual agreements’, or the class of being ‘unemployed’), and then prescribe the treatment that is to be accorded each of these classes.

Applying Legal Rules

Once the legal rule is identified, establishing what the law requires on any given case is a rather straightforward exercise in linguistic classification: according to Hart, the legal interpreter applies the law by examining whether the case (or the hypothetical instance) falls inside or outside the conventional meaning of the classificatory term of the relevant legal rule. For example, if a rule reads ‘no vehicles in the park’, then whether the rule is or is not violated by a certain conduct depends on whether that conduct involves a ‘vehicle’ and a ‘park’ according to the conventional meanings of these terms.

Now general terms have cases of clear and certain applications – ‘General terms would be useless to us as a medium of communication unless there were such familiar, generally unchallenged cases’¹⁰ – as well as cases of uncertain applications: take any general term, says Hart, and you will find that it has some applications regarding which it is unclear whether it applies or not. The term ‘silk’, for example, has unmistakable applicability to a certain substance secreted by silkworms; but imagine that we discover that the substance somewhat changes its chemical constitution when exposed to certain pollutants. This would present us with an uncertain case of applicability: the altered material is a borderline case falling in the ‘penumbra’, or the ‘open texture’, of the term ‘silk’. (‘Open-textured’ and ‘penumbral’ were the adjectives Hart used to denote uncertain cases of application.¹¹) What, for Hart, distinguishes core applications from borderline applications? Core applications are those characterised by agreement: the ‘plain case’ is one w...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• Acknowledgements
• Foreword
• 1. Introduction: law and impartiality
• 2. The legal positivism of HLA Hart
• 3. Max Weber and the virtues of legal positivism
• 4. Dworkin and the proper methodology of legal theory
• 5. Dworkin’s ‘law as integrity’
• 6. Law and reason: beyond impartiality
• 7. Law and impartiality: conclusion
• Bibliography
• Index