Most all rules of law are at least indirectly hinged to the existence of a fair, impartial, and efficient judiciary. Perhaps more than all of them, however, is the tenet that ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law’. This particular rule of law rests almost solely on the discipline of the judiciary and has raised the important question of how, precisely, judges make their decisions. Boundless theories concerning themselves with questions about how judges decide cases and how they should decide cases have filled the minds of legal scholars for centuries. Of these theories, two schools of thought have generally competed for their allegiance. This paper will highlight the essence of these normative theories and attempt to distinguish the most accurate conceptualisation.
It must be noted from the outset, however, that this may be an exercise in futility. There may be no definitive solution. Judges are, after all, people. And as such are subject to the same predispositions and prejudices that haunt other humans as well. The express objective here must be, then, that any light cast onto the decision making process of the judiciary is useful and important.
The schools of Conceptualism and Realism have generally dominated the study of jurisprudence. For most practical purposes, the traditional disputes between these competing ideologies are over. In the end, both sides have lost. Conceptualists have been forced to admit that there is more to adjudication than strict interpretation of statutes and precedents. In common law, judges are not simply ‘machines’ that decide cases through an entirely predictable or predetermined process. However, Realists have also ‘realised’ that it is impossible to argue that judges adjudicate without a pervasive reference to statutes, precedents and a strong desire for consistency. In terse, “Conceptualism could not ignore the fact that concepts are tools of human invention, and are not self-defining and self-executing...Realism found that understanding the judges involved understanding the law.”
Yet, despite acknowledgement of defeat by both schools of thought, it seems as though an inexorable debate remains that is particularly strong in a rapidly changing world where common law must keep up with the times. It is inherently a normative one that aspires to instil a dominant school of thought that ‘makes the best of a bad situation’. At the root of the debate are the questions of whether judges should abandon the attempt to justify their decisions in terms of precedent and statutory interpretation and instead allow legal argument to become ‘freewheeling’ ideological debate.2 Moreover, is the issue of whether the law; i.e., statutes, precedents, is so incoherent that when judges attempt to make sense of it “they are simply wasting their time, and everyone else’s.”3 This paper represents an acknowledgement of the existence of this enduring debate.
Based on the prevailing literature available, it seems as though the most boisterous participants in this debate are those who advocate the Dworkinian perspective on jurisprudence and the anti-Dwarkinists, or those of the ‘Critical Legal Studies’; i.e., legal realists. It therefore seems logical to get to the crux of the debate by focusing on the views forwarded by these participants.
One of the schools of thought that has emerged in response to the aforementioned debate follows the ideology of Ronald Dworkin. Very generally, this position denies that there are any contradictions in the law that cannot be unambiguously resolved by reference to local political tradition. Any forwarded contradictions, argues Dworkin, are merely principles in competition, “both of which are honoured in the political tradition, but one of which is usually clearly more important than the other for the case at hand. The Dworkinian claim is that the judge can sufficiently often find a solution to a case and justify it, in a way that ‘fits’ into the existing law better than any other solution, that the judge is always satisfied in assuming that the law is capable of making sense in any particular case.”4 Before this stance can be fully appreciated, some further introduction must be given to Dworkin’s ideology.
In contrast to the basic presumption underlying the analytical approach to jurisprudence; i.e., a distinction between the abstract concept of law and its realisation in particular legal institutions, Dworkin envisaged only one process. This was imposing the best available interpretation on a given practice. As such, sense of the law could be made in every case.
In Dworkin’s words, ‘if a judge accepts the settled practices of his legal system - if he accepts, that is, the autonomy provided by its distinct constitutive and regulative rules - then he must, according to the doctrine of political responsibility, accept some general political theory that justifies these practices.’ To illustrate this, Dworkin draws an analogy between the position of a judge in a hard case and the position of a referee in a chess tournament having to decide a novel issue which is not covered by any of the rules of chess or the rules of the particular competition. “Supposing one of the players adopts behaviour tactics - such as putting on a peculiar smile - designed to attract his opponent’s attention. The referee cannot decide whether this disqualifies him by looking at the rule book. He must reflect on what sort of game chess is. If it is a game of intellectual skill, does ‘intellectual skill’ include or exclude psychological intimidation of this kind?” In Dworkin’s theory, there is an answer to this question, and it can be found in the pre-existing body of knowledge that is available to the judge. The judge will not use discretion in the formulation of his or her judgement. Judges, in Dworkin’s opinion, do not legislate in the way parliaments do.
Those who oppose Dworkin’s conception assert that his so-called ‘principles in competition’ are in reality so fundamentally different from one another that “the decision in any particular case will frequently undermine so much of the pre-existing law that the whole process of legal argument has to be called into question.”6 The roots of this school of though can be found in the Realist writings of Oliver Wendel Holmes. Holmes did not believe that judges could follow their own prerogatives, and act on normative conceptions of it, yet, he was sceptical of the ways these laws were determined.
Although Holmes was only a moderate reformer, his tenets have been embraced by antiDwarkinists. Holmes attacked the idea that “all inherited legal provisions could be rationally defended, and any tendency to expound law which did not have a direct bearing on courts decisions. Much of the law, he believed, had been invented in a historical context which had now been superseded, and the real purposes it served under changed conditions should be constantly reviewed. In no circumstances should it be claimed that the law, according to some conceptually deductive process, was one thing, if the practice of the courts suggested it was something else.”
In recent years, two fundamental questions have been raised by the critics that support Holmes’ views and resist the assertions of Dworkin. The first centres on the alleged fact that the law contains within itself certain fundamental contradictions that reflect conflicts in society at large. Each of these can be traced to a particular social conflict. One case in point may be the contradictions in contract law between doctrines that hold parties strictly to their bargains and doctrines that help parties in inferior bargaining positions can be traced to the basic social conflict between debtors and creditors, and more fundamentally, between the rich and the poor. In this light, the incoherence of the law is not the result of random accidents or mistakes, but rather the inevitable consequence of predictable social conflicts.8 “Legal decision making may still be fairly predictable if judges strongly favour one particular side of a given conflict, but the desire of judges to be thought neutral in social conflicts militates against their making many clear commitments.”
Secondly, the incoherence in the law, as noted in the above mentioned point, results from the fact that legal problems often require answers that “presuppose particular solutions to notoriously difficult philosophical problems. For example, criminal law cases about intention and voluntariness may require answers to questions about free will and determinism. In consequence, although the law may achieve some degree of predictability in practice, it can only do so by suppressing the underlying philosophical difficulties.”
The answer for these observers lies in how much uncertainty they can accept. It could be concluded that one can probably get through life without developing a satisfactory theory of adjudication, and the best one can do is to accept that the question of how judges decide cases is too complicated and too full of uncertainty to bother with. For very interested critics, however, this is not practical. This is particularly so for judges. “A judge who does not care how previous decisions were reached cannot possibly understand those decisions. Moreover, it would be irresponsible for a judge not to care how his or her own decisions might be interpreted in future cases.”
It may be that those of this school of thought underestimate judges. It may well be that judges are capable of resolving difficult philosophical issues. In most cases, deep philosophical issues are not brought to the fore anyway, and such cases only represent a very slender minority of court time. Moreover, this view assumes that there is “something sinister going on in the law; that in some way lies are being told and power is being maintained by fraud.” However, it seems particularly folly to assume that lawyers and judges are exceedingly bad offenders against standards of honesty and openness.
At the crux of these recent analytical conceptions of adjudication, then, is the contentious presumption that a distinction exists between the abstract concept of law and its realisation in particular legal institutions. Those of the critical legal studies movement, similarly to legal positivists and realists, have adopted the traditional stance that states that attempts to characterise the concept of law should be independent of attempts to answer normative questions about the law. In this case, what is, and what should be, are two basically independent questions.
Followers of Dworkin’s theory, on the other hand, propound that ‘law is interpretative throughout’. Dworkinians argue “not only that accounting for the concept of law is a matter of interpretation, but also, and more interestingly, that such accounts are inevitably tied up with considerations of what the law is there to settle. In other words, as [Dworkin] sees it, jurisprudence is basically a theory of adjudication as both concern one and the same issue, namely, imposing the best available interpretation on a given practice.”15 Can any sense be made out of these competing claims? The essence of both sides can be seen in the now renowned FishDworkin debate.
The pretext for Stanley Fish’s criticism on Dworkin’s ideology is found in his celebrated metaphor of the chain novelists. In brief, in this metaphor Dworkin asks his reader to imagine a group of novelists who accept the following assignment: each is to write a single chapter of a novel. The first author writes the opening chapter, and all the rest then add their respective chapters. In doing so, each novelist enters into the endeavour assuming the responsibility of creating the best and most unified novel that he or she can. Thus, every novelist but the first has the dual responsibility of interpreting and creating because each must read all that has gone before in order to establish, in the interpretivist sense, what the novel so far created is. Dworkin intends this metaphor to explain the role of judges in his conception of law as integrity: “Deciding hard cases at law is rather like this strange literary exercise....Each judge is then like a novelist in the chain. He or she must read through what other judges in the past have written...to reach an opinion about what these judges have collectively done.”
Stanley Fish objects to Dworkin’s metaphor on two grounds: First, he asserts that “Dworkin’s assumption that there is, or could be, any difference between the assignment given to the first novelist in the chain and those given to the rest. Dworkin assumes, so Fish claims, that the first novelist has a purely creative role, while the others must both create and interpret.”17 In fact, however, Fish argues, the first author has surrendered his freedom as soon as he commits himself to writing a novel. “The very notion of beginning a novel exists only in the context of a set of practices that at once enables and limits the acts of the beginning. Moreover, those who follow him are free and constrained in the same way....That is, the later novelists do not read directly from the worlds to a decision about the point or theme of the novel but from a prior understanding...of the points or themes novels can possibly have to a novelistic understanding of the words.”
At the root of this debate seems to by the concept of a prior understanding. In the above example, this assumes the conception of the novel, but the metaphor is, of course, intended to represent the body of common law. As argued by Andrei Marmor, “upon approaching a text, be it a novel or a legal precedent, we must already possess a whole set of convictions enabling us to grasp and refer to it as belonging to a certain kind of text, that is, to assign it a specific location within our intellectual environment.” Interpretative convictions do not ordinarily manifest themselves as they are inherent to ones cultural and professional surroundings; “they are latently shared by groups of people who therefore constitute an ‘interpretative community’.” These convictions can, as argued by legal realists, change across time and space.
Fish rests his argument on the Dworkin’s presumption that there is “a discernible and defensible distinction between interpreting a ‘text’ and changing it or inventing a new one.” He suggests that this distinction is unfounded, as “any reading or interpretation changes the ‘text’. The only way in which the ‘text’ ‘is there’ to be read or interpreted is determined by the convictions constituting the prior understandings of a given interpretative community.” Fish argues that these convictions can change between interpretative communities and throughout time. There is nothing in legal texts themselves “to warrant the conclusion that the prior understandings of one interpretative community are more correct than those of another; there are no textual facts, that is, facts which can be identified independently of particular interpretative strategies.”
To retort, Dworkin argues that interpretation is not conceptually constrained. But, even if it were, “such understandings reflect only one possible convergence of interpretative convictions.” To Dworkin, law is the embodiment of integrity and it is the judges predominant role to interpret rather than to invent. A system of checks and balances makes sure that judges maintain their roles and that the law follows its ‘intended’ course.
However, he nor his contemporaries offer any substantive justification for these claims. Dworkin’s entire conception of jurisprudence “becomes suspect when it turns out that everything emerges from the same evaluative judgement, that is, coherence. In other words, it is not value dependence, per se, which undermines the idea of complexity in Dworkin’s legal theory, but the fact that all the elements of interpretation seem to depend on the proposed value.”
There are obviously uncertainties that arise from both of the aforementioned stances on the interpretation of jurisprudence. It is therefore difficult, if not impossible, to determine which offers the most accurate conception of adjudication. The legal realist or critical perspective forwarded above by Stanley Fish seems to offer a compelling argument demonstrating the faults of Dworkin’s view of the legal system. Yet, no credible suggestions are offered in remedy. Dworkin’s stance, on the other hand, offers an elaborate, perhaps overly elaborate, solution, but does not adequately recognise the problem. In essence, Dworkinian’s can argue that “all is well if the judges are acting in good faith, that is, if their interpretations, though over rational, are honest attempts at making the legal material seem the best it can be.”
This flexibility of judicial interpretation, however, comes with great risks. Indeed, there are serious costs attached to making sense out of non-sensical issues in the law. “The first cost is that we give a false, and inflated, impression of the wisdom of judges. We imply that they are architects of some great cathedral of law, when in fact they may be throwing bricks in the dark. Secondly, by ignoring the possibility of randomness....judges are eventually forced to elevate ad hoc distinctions into the status of principles, and thus to boost principles which, on any reasonable view of the subject, out not to be boosted at all. Thirdly, to the extent that [judges] believe that they are ‘seeing’ sense in the material to be interpreted, rather than acknowledging that they may be creating sense out of nonsense, they are deceiving themselves.”
From these conclusions, it can be argued that this paper has progressed no further ahead than when it began. Indeed, it may have even raised more confusion than previously existed. If this is the case, however, some light has been shed onto a truly beguiling problem. There may be no answers; and if there are, they will likely become more difficult to discern as time progresses and precedents are more firmly established. Statutes could, of course, work to change the trajectory of the law. But, this opens up the question of whether legislatures are any more capable of guiding the direction of the law than judges. Before this bag of snakes is opened, this paper will digress and concede that dispute between conceptualists and realists lives on.
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