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 âequal treatmentâ: 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 â 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 âunjustifiableâ): we say of some beliefs that they are âsimply a matter of preferenceâ, suggesting that they are not open to a contradictory demonstration. These preferences are controversial: to call something a âpreferenceâ 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 â 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. Whatâs 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 â 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) â 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 todayâs 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 â 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 â thereby skipping all of Hartâs positivist predecessors. The reason for this is simple: Hartâs 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 â that of judicial impartiality â 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 â as they so spectacularly did in the modern age â that natural law theory came to be regarded as unacceptable. Indeed, it is only when moral choices became ârelativisedâ 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 â grounding proper adjudication in universally valid principles of human morality â 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: âmany 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 âwhy isnât that just your opinion?â by reference either to an impartial criterion for judgment ⌠or a neutral decision procedure for adjudicating claims âŚâ Singer, 1988, pp 516â17.
Chapter 2
The Legal Positivism of HLA Hart
I Hartâs 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 doesnât take preferences into account. HLA Hartâs 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 Hartâs 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
Hartâs 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-Ă -vis a particular case.1 Together these two processes establish what the law says â or whether it says anything â 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 ârule of recognitionâ. Only rules which satisfy that test are recognised as legal rules (rather than moral rules, or social rules, or what have you).2 The ârule of recognitionâ specifies certain âsources of lawâ 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 ainât there â it ainât legal. As there are various legal sources in a complex, modern legal system, these sources are ranked for relative supremacy within the ârule of recognitionâ (for example, the ârule of recognitionâ 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 ârule of recognitionâ 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 ârule of recognitionâ on paper. Yet, however complex or lengthy, the ârule of recognitionâ must be shared by the legal practitioners of the legal system to which it belongs: they must agree as to what is the governing ârule of recognitionâ. 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 ârule of recognitionâ that constitutes that rule: the ârule of recognitionâ, says Hart, exists by virtue of being accepted as a normative standard and followed. What does Hart mean by that? He means that the ârule of recognitionâ 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 â 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 Hartâs idea that the ârule of recognitionâ 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 ârule of recognitionâ (or the correct test for the legal validity of rules) constituted by agreement among those who are practising law.
Now Hart concedes that the ârule of recognitionâ is not explicitly articulated, and certainly not in its entirety: people are not in the habit of citing a ârule of recognitionâ when they identify legal rules.5 Nevertheless, says Hart, we know the rule exists, and we know what it requires, because this is âshown in the way in which particular rules are identified, either by courts or other officials or private persons or their advisorsâ.6 One can detect the ârule of recognitionâ by observing the way in which people (private individuals, lawyers, judges, state officials) identify legal rules: people look for legal rules in certain âsources of lawâ (the pronouncements of the legislator, the decisions of courts, the promulgations of administrative agencies), and in doing so they follow the ârule of recognitionâ â thereby making it known. Whatâs more, deducing the ârule of recognitionâ 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 ârule of recognitionâ â which can be identified by observing the actions of legal practitioners â points practitioners to the âsources of lawâ where legal rules can be found. Sometimes the source will not present the practitioner with a âready-to-useâ 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 âall rules involve recognising or classifying particular cases as instances of general termsâ; rules of law ârefer to classes of persons, and to classes of acts, thing, circumstance; and [the lawâs] successful operation ⌠depends on a widely diffused capacity to recognise particular acts, things, and circumstances as instances of the general classification which the law makesâ.9 In short, the law consists of rules, found in certain recognised sources identified by the ârule of recognitionâ; and these rules divide the world into classes of âacts, things, or circumstancesâ using general words (for instance, the class of âassaultsâ, the class of âcontractual agreementsâ, or the class of being âunemployedâ), 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 âno vehicles in the parkâ, then whether the rule is or is not violated by a certain conduct depends on whether that conduct involves a âvehicleâ and a âparkâ according to the conventional meanings of these terms.
Now general terms have cases of clear and certain applications â âGeneral terms would be useless to us as a medium of communication unless there were such familiar, generally unchallenged casesâ10 â 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 âsilkâ, 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 âpenumbraâ, or the âopen textureâ, of the term âsilkâ. (âOpen-texturedâ and âpenumbralâ 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 âplain caseâ is one w...