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There are many, purportedly competing, theories about law and about aspects of legal practice. H.L. A. Hart, in perhaps the most famous contemporary account, explains law in terms of primary and secondary rules. Writers within the American legal realist tradition believe rules cannot adequately explain legal practice and look instead to actual decisions. This view is reflected in Oliver Wendell Holmes’ famous definition of law as “the prophecies of what the courts will do in fact.” Ronald Dworkin theorizes that posited rules cannot account for the innumerable disputes about the law and argues that political morality plays an important role in conceptualizing law. These theories variously explain law in terms of (a) posited rules, (b) judicial decisions and not rules, and (c) legal rules and moral rights. This sampling of “rival” theories typifies the current state of jurisprudence: a plethora of apparently competing and seemingly endlessly debated theories about law. Ruth Gavison suggests that much jurisprudential discussion has been “sterile and barren” because theorists often have not appreciated the plurality of purposes for theorizing about law and, consequently, the extent to which putatively contradictory accounts of law are at cross purposes or complementary.
1. Hart, H.L.A. The Concept of Law (Oxford: Clarendon Press, 1982); hereinafter referred to as CL.Google Scholar
2. Wendell Holmes, Oliver “The Law as Predictions of What Courts Will Do” in Golding, M.P. ed., The Nature of Law: Readings in Legal Philosophy (New York: Random House, 1966).Google Scholar
3. Dworkin, Ronald Law’s Empire (Cambridge: Harvard University Press, 1986).Google Scholar
4. Morawetz, Thomas in “The Epistemology of Judging: Wittgenstein and Deliberative Practices” (1990) 3 Can. J. of L. and Juris. 35 at 36–37,CrossRefGoogle Scholar notes the “perennial debate” surrounding theories of judicial decision making. Bayles, Michael D. in “What Is Jurisprudence About? Theories, Definitions, Concepts, or Conceptions of Law?” (1990) 18 Phil. Topics 23 at 25,CrossRefGoogle Scholar suggests that jurisprudential debate has been “muddled” by the failure to keep separate different aspects of law. Kant is reported to have observed that the inability to answer adequately the question “What is law?” may embarrass jurists as much as the question “What is truth?” embarrasses logicians. See Golding, M.P. ed., The Nature of Law: Readings in Legal Philosophy (New York: Random House, 1966)Google Scholar at v. Glanville Williams claims that clarifying the nature of law has been “one of the most insistent and yet elusive problems in the entire range of thought”, in “The Controversy Concerning the Word ‘Law’” in Laslett, Peter ed., Philosophy, Politics and Society (Oxford: Basil Blackwell, 1956) at 134.Google Scholar H.L.A. Hart suggests that the problems of definition of law have been “endlessly debated”; see his “Problems of Philosophy of Law”, in Edwards, Paul ed., 6 Encyclopedia of Philosophy (New York: Macmillan/Free Press, 1967) at 264–65.Google Scholar
5. “Comment,” Gavison, Ruth ed., Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart (Oxford: Clarendon Press, 1989) at 34.Google Scholar
6. Bayles, supra, note 4; Brink, David O. “Legal Positivism and Natural Law Reconsidered” (1985) 68 Monist 364;Google Scholar Raz, Joseph “The Problem about the Nature of Law” (1983) 21 U. Western Ont. L.R. 203;Google Scholar and Waluchow, W.J. “The ‘Forces’ of Law” (1990) 3 Can. J. of L. and Juris. 51.CrossRefGoogle Scholar
7. Bayles, supra, note 4 at 23-25.
8. Ibid. at 25.
9. A fourth type of theory, referred to as linguistic or semantic theories of law, explicates the meaning of legal concepts. I have not included this theory in my typology because my focus and, according to Gavison (supra, note 5 at 23), the focus of classical legal theorists—positivists, realists and natural lawyers—has been the “phenomenon of law,” not definition of the word ‘law’. In other words, the concern is with theories about legal practices, not about linguistic practices. Having said this, I believe that exploring the meaning of legal terms is not unhelpful in understanding legal practice. For a discussion of linguistic theories see Gavison; Bayles, supra, note 4 at 26-33; and Raz, supra, note 6 at 204-07.
10. Dworkin, supra, note 3; and Dworkin, Ronald A Matter of Principle (Cambridge: Harvard University Press, 1985).Google Scholar
11. Selznick, Philip “Sociology of Law” in Edwards, Paul ed., 7 Encyclopedia of Philosophy (New York: Macmillan/Free Press, 1967) at 478.Google Scholar
12. Discussed in Mazor, Lester “The Crisis of Liberal Legalism” (1972) 81 Yale L.J. 1032 at 1037–38;Google Scholar and in Green, Leslie The Authority of the State (Oxford: Clarendon Press, 1988) at 24–25, 30-36.Google Scholar
13. Mazor, supra, note 12 at 1038.
14. Griffith, J.A.G. The Politics of the Judiciary (Douglas, Isle of Mann: Fontana Press, 1985).Google Scholar
15. Ibid, at 234.
16. This statement is meant to refer only to the thesis cited above. Griffith concludes that British judges are authorized to act in a law-making role and that, by and large, they act in a judicially proper manner (ibid, at 193-235).
17. Kovesi, Julius Moral Notions (London: Routledge and Kegan Paul, 1971) at 1ff.Google Scholar uses the term “formal” in a similar way. Formal theorizing is not identical with “formalism,” which is a particular formal theory of legal reasoning that describes judicial decisions in terms of straightforward, deductive inferences from uncontroversial legal rules or standards.
18. Some critics have suggested that Hart’s project is essentially a conceptual analysis of ‘law’. See Samek, R.A. in The Legal Point of View (New York: Philosophical Library, 1974) at 271ff.Google Scholar This is an incorrect but unsurprising assessment given the title of Hart’s book and his extensive analysis of numerous concepts. Hart’s account is predominantly a formal theory of legal practice. Notice that Hart suggests his project will be regarded as “analytical jurisprudence” because “it is concerned with the clarification of the general framework of legal thought, rather than with the criticism of law or legal policy” (CL v). (This indicates that his work is not an evaluative theory.) Significantly, Hart believes that the major disputes underlying the recurrent question “What is law?” cannot profitably be resolved by concisely defining the term or by distinguishing instances and non-instances of law (CL 13-17). in concluding his introductory chapter, Hart explicitly states that resolution of doubts about application of the concepts “law” and “legal system” is only a secondary concern of his book (CL 16). As he says, “its purpose is not to provide a definition of law, in the sense of a rule by reference to which the correctness of the use of the word can be tested; it is rather to advance legal theory by providing an improved analysis’ of the distinctive structure of a municipal legal system” (CL 17).
19. MacCormick, Neil Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978) at 12–13.Google Scholar
20. Raz, Joseph The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1983) at 181.Google Scholar
21. Brink supports this point in supra, note 6 at 371-76. For example, in Canada it would generally be accepted that the orders-in-council authorizing deportation of Japanese Canadians after World War II were unfairly discriminatory and yet legally sanctioned—at least, their legality was upheld by the Supreme Court of Canada in Cooperative Committee on Japanese Canadians v.A.G. of Canada [1947] 1 D.L.R. 577. See also Manning’s, Morris observations on the legalized inequity in South Africa’s legal system in “Practicing Law in South Africa” (1987, September) Can. Lawyer 10.Google Scholar
22. MacCormick, supra, note 19 at 13. See also Waluchow, supra, note 6 for a discussion of the kinds of normative forces implied by legal theories.
23. Waluchow, Wilfred in “Strong Discretion” (1983) 33 Phil. Quarterly 321 at 336,CrossRefGoogle Scholar states, “The best way to determine the rules of the game is to ask its participants.” See also Bell, John Policy Arguments in Judicial Decisions (Oxford: Clarendon Press, 1985) at 23–24.Google Scholar
24. CL at 92.
25. The phrase “what fully informed, competent practitioners would recognize” is used figuratively, as a legal fiction. It denotes a test or criterion to be met, namely that it is reasonable to expect that openminded persons sufficiently informed about the relevant facts would recognize a given description as a faithful account of a some aspect of the legal system.
26. Piaget, Jean The Moral Judgment of the Child (New York: Free Press, 1965).Google Scholar
27. Dworkin, Ronald in Taking Rights Seriously (Cambridge: Harvard University Press, 1980) at 352 Google ScholarPubMed supports this distinction when he suggests that disputes between rival theories of law will not be resolved “by framing more intelligent questionnaires forjudges.” As he says, the fundamental dispute is over “which philosophical account of the practice is superior.” In commenting on practitioners' competence to theorize about legal practice, Dworkin suggests: “popular opinion about judges and judging is a sad affair of empty slogans, and I include the opinions of many working lawyers and judges when they are writing or talking about what they do” (LE 11).
28. Leslie, Green “The Political Content of Legal Theory” (1987) 17 Phil, of Soc. Sci. 1 at 14.Google Scholar
29. Ibid, at 1.
30. Llewellyn, Karl N. “Some Realism About Realism: Responding to Dean Pound” (1931) 44 Harv. L. Rev. 1222 at 1232–35.CrossRefGoogle Scholar Legal realism is a loose collection of diverse views on the actual workings of law. One version of realists’ position—the unqualified claim that legal rules are myths—cannot plausibly be taken to be a formal theory, i.e., a putatively faithful account of proper legal practice (CL 133). Hart identifies several versions of what he calls rule-scepticism that may qualify as formal theories (CL 132ff.).
31. Llewellyn, supra, note 30 at 1236-37, 1255.
32. Ibid, at 1256.
33. McConnell, Howard and Pyra, Joe “The Impact of Some Aspects of the Constitution and the Canadian Charter of Rights and Freedoms on Education” (1989) 2 Educ. and L. J. 1.Google Scholar
34. Pitsula, Pat and Manley-Casimir, Michael “The Charter, Educational Administration and U.S. Case Law: Contrasting Legal Norms and Traditions” (1989) 2 Educ. and L. J. 49.Google Scholar
35. McConnell, Howard and Pyra, Joe “The Influence of American Cases on Canadian Law School: A Response to Manley-Casimir and Pitsula” (1989) 2 Educ. and L. J. 209;Google Scholar Pitsula, Pat and Manley-Casimir, Michael “Rejoinder to McConnell and Pyra” (1989) 2 Educ. and L. J. 220.Google Scholar
36. Only Pitsula and Manley-Casimir appear aware of the difference in theoretical perspective, as suggested by their discussion of the fallacy of misguided practice committed by McConnell, and Pyra, : “the fact that it is ‘common practice’ to use U.S. case law ‘to resolve Canadian Charter cases’; does not make the practice right or defensible” (supra, note 35 at 225).Google Scholar
37. Pitsula and Manley-Casimir, supra, note 34 at 71.
38. Ibid, at 50.
39. Since it is generally recognized that the principle of precedent holds only where cases are relevantly similar, establishing deep-rooted, relevant differences between jurisdictions is a legally acceptable argument against affording U.S. case law much persuasive authority in Canadian courts.
40. McConnell and Pyra, supra, note 35 at 211.
41. Ibid, at 215.
42. Ibid, at 216.
43. McConnell and Pyra, supra, note 33 at 46.
44. McConnell and Pyra, supra, note 35 at 215.
45. This statement is somewhat of an exaggeration since some of McConnell and Pyra’s arguments are directed at showing that the American and Canadian socio-legal contexts are not relevantly dissimilar.
46. See, e.g., Sterett, Susan “Politics and Jurisprudence in the British Courts” (1988) 1 Can. J. of L. and Juris. 173.CrossRefGoogle Scholar
47. Brink, supra, note 6.
48. Ibid, at 366, 371.
49. Ibid, at 377-83.
50. Hart, H.L.A. “Positivism and the Separation of Law and Morals” (1958) 71 Harv. L. Rev. 593 at 606–15.CrossRefGoogle Scholar
51. Hart, H.L.A. Essays on Bentham: Studies in Jurisprudence and Political Theory (Oxford: Clarendon Press, 1982) at 161.CrossRefGoogle Scholar
52. Brink, supra, note 6 at 364-65 and elsewhere.
53. Morawetz, supra, note 4 at 38.
54. Samek, supra, note 18 at 44.
55. In a recent response to critics’ claims that his explanation of law fails to recognize the constituent moral features of law, Hart affirms the need to distinguish what I call formal and evaluative theorizing: “Suppose I was mistaken in just that way [failing to recognize that judges appeal openly to “moral” standards], this would only call for a better and more sensitive description from the legal theorist, not a premature move away from description to controversial claims concerning the justice or injustice of the use of coercion in accordance with legal practices.” He notes, however, “The fact that such an analysis treats such moral beliefs and justificatory practices as essential constituents of the existence of such a rule plainly does not rob the analysis of its descriptive character.” H.L. A. Hart, “Comment” in Gavison, Ruth ed., Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart (Oxford: Clarendon Press, 1989) at 38–39.Google Scholar
56. Sartorius, Rolf “The Justification of the Judicial Decision” (1968) 78 Ethics 171 at 180–81.CrossRefGoogle Scholar
57. Eisele, Thomas makes this point in “Our Real Need: Not Explanation, But Education” (1990) 3 Can. J. of L. and Juris. 5 at 26–27,CrossRefGoogle Scholar as does Unger, Roberto Mangabeira in “The Critical Legal Studies Movement” (1983) 96 Harv. L. Rev. 563 at 571–72.Google Scholar
58. Hart, supra, note 4 at 270.
59. Dworkin’s disagreement with this claim will be discussed in the third section.
60. Green,, Thomas F. “Teaching, Acting, and Behaving” in Scheffler, Israel ed., Philosophy and Education: Modern Readings (Boston: Allyn & Bacon, 1966) at 115–17.Google Scholar
61. CL 50-60 and Hart, supra, note 4 at 266.
62. Postema , Gerald in “Coordination and Convention at the Foundations of Law” (1982) 11 J. of Legal Studies 165 at 193–94,CrossRefGoogle Scholar notes that judges need not have the standards consciously in mind when they reach their decisions. It is sufficient that the standards be implicit in judges’ justifications and that they would acknowledge the implied standard if it were brought to their attention. It goes without saying that other official statements (e.g., legislation, judicial practice statements, authoritative treatises) are also good indications of acceptable legal norms.
63. Cardozo, , “Comments” in Hook, S. ed., Law and Philosophy: A Symposium (New York: New York University Press, 1964) at 332.Google Scholar
64. For instance, although official rules prohibit use of steroids by Olympic athletes, the fact that in many countries officials know about widespread use and still fail to take corrective steps suggests that this form of drug use may be only nominally unacceptable.
65. Hughes, Graham “Are Justices Just?” (1981, November 10) The New York Review of Books 41.Google Scholar
66. See, e.g., Yablon, Charles “Are Judges Liars? A Wittgensteinian Critique of Law’s Empire” (1990) 3 Can. J. of L. and Juris. 123 at 137–38.CrossRefGoogle Scholar
67. Williams, Glanville in Learning the Law (London: Stevens, 1982) at 76–77 Google Scholar suggests it is “simply human nature” that some judges will find any excuse to distinguish a prior case from the case before them if they are gravely dissatisfied with the prior case’s ruling. Significantly, Williams expresses doubts about this being a common occurrence.
68. Monahan, Patrick “Judicial Review and Democracy: A Theory of Judicial Review” (1987) 21 U.B.C. L. Rev. 87 at 99.Google Scholar
69. Ibid, at 93,96.
70. Ibid, at 108.
71. Ibid, at 112. So too, John Bell treats British judges’ reasoning in a case involving abortions as an instance of judicial policy making (supra, note 23 at 88-93) despite explicit claims by the judges that the decision was reached “simply as a matter of the construction of the Act” (Royal College of Nursing of the United Kingdom v. Department of Health and Social Security [ 1981 ] A.C. 800 at 838). This case is discussed in more detail in Case, Roland Understanding Judicial Reasoning (Toronto: IPI Publishing, in press) at chapter 3.Google Scholar
72. For example, I offer an account of judicial reasoning in Case (supra, note 71 at chapter 6), not considered by Monahan, that is consistent with what judges say they are doing in applying section 1 of the Charter.
73. Certainly this rule was rejected in Canadian constitutional interpretations in the famous Persons case (Edwards et al. v. Attorney General of Canada [1930] A.C. 124).
74. A particularly candid repudiation of a judge for ignoring the rules of judicial reasoning occurred in Davis v. Johnson [1978] 1 All E.R. 1132. Superiorjudges disapproved of Lord Denning’s “one-man crusade” (at 1137) and his “heterodox views” (at 1139). Commentators have referred to him as a “strong-minded maverick” (MacCormick, supra, note 19 at 242).
75. Stone, Julius in Legal Systems and Lawyers’ Reasonings (Sydney: Maitland Publications, 1964) at 331,Google Scholar distinguishes between a judge being moved by arguments that are merely “psychologically persuasive” and by those that are “worthy of persuasion.”
76. Goldstein, Laurence in “Some Problems About Precedent” (1984) 43 Cambridge L. J. 88 at 101,CrossRefGoogle Scholar refers to this as the “self-verifying quality” of legal decisions.
77. [1954] 347 U.S. 483.
78. [1973] 410 U.S. 113.
79. [1978] 2 S.C.R.436.
80. American constitutional law, in general, has been characterized as being in a “most unsettled state” by Wolfe, Christopher in The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (New York: Basic Books, 1986) at 321 Google Scholar; and in the midst of a “paradigm shift” by Richards, David A.J. in “Human Rights and the Moral Foundations of the Substantive Criminal Law” (1979) 13 Georgia L. Rev. 1395.Google Scholar
81. “Palm tree justice” refers to a manner of deciding cases that ignores established rules and attempts to reach a just resolution on the basis of the perceived merit of competing positions. “Phantom intent” refers to a view that cases should be decided on the basis of the historical intentions of the law’s framers. It is often a phantom intention because legislators cannot anticipate all cases that eventually come to be decided by a law.
82. If a theorist wished to argue that one group within the legal system recognizes a more desirable set of standards, it would minimize the confusion if the switch from formal to evaluative theorizing were made explicit.
83. As Dworkin says, “all interpretation strives to make an object the best that it can be, as an instance of some assumed enterprise,” and “interpretation takes different forms in different contexts only because different enterprises engage different standards of value or success” (LE 53). In science, the best account of a body of data, among rival plausible accounts, will be the one exhibiting “standards of theory construction” such as simplicity, elegance and verifiability (LE 53). Artistic interpretation strives to maximize the value of the work by showing the piece in its best light (LE 52-53).
84. Conversational interpretation is rejected for the reason suggested earlier: formal legal theorizing is not at heart an inquiry into what people mean when they speak (LE 50). Dworkin dismisses scientific interpretation because unlike law, whose focus is human actions, science focuses on “events not createdby people” (LE 50). Or, as he later says, science is concerned with mere causes and not with purposes (LE 51). Dworkin offers artistic interpretation as the most plausible candidate for interpretation of social practices like law (LE 54-55, 62-65). This a very weak argument. Showing that this interpretive approach is preferable to two other approaches that, by his own admission, are obviously inappropriate for interpretation of social practices does not establish the merits of Dworkin’s approach in the face of other more credible approaches which he does not consider.
85. The term apparently acknowledges that this form of theorizing about legal practice is not, at heart, causal theorizing. As Dworkin explains, persons theorizing from the “internal point of view” do not want “predictions of the legal claims they will make but arguments about which of these claims is sound and why; they want theories not about how history and economics have shaped their consciousness but about the place of these disciplines in argument about what the law requires them to do or have”(LE 13).
86. MP 149.
87. MP 150-52.
88. Dworkin invites us to accept parallels between the judge and the literary critic, and between the judge and the “chain novelist.” The chain novelist is Dworkin's fanciful literary metaphor for the role of judges in applying law. Judges are, in his view, akin to novelists involved in a collaborative effort to develop a work. Both inherit an unfinished product which they add to by making sense of and extending previous efforts (MP 146-48, 158-66 and LE 53-55).
89. Dworkin illustrates this point by suggesting how Raymond Chandler's novels could be interpreted to be more than simple thrillers (MP 151). Dworkin recognizes that the entire texts (i.e., all the preinterpretive raw data) cannot be accommodated in such an interpretation and that some elements of Chandler’s novels may be incompatible with this reading. Despite unexplained and inconsistent segments of the text, this more ambitious interpretation is plausible—in Dworkin’s view there is sufficient fit between the text and the interpretive account. As he suggests, the “fit” criterion merely “constrains the available interpretations” (LE 52) and “will sometimes check” options (LE 255). Conversely, Agatha Christie’s mystery novels would not sustain an interpretation that they were treatises, on, say, the meaning of death because all but one or two sentences in each novel would be irrelevant to the supposed theme (MP 150).
90. Dworkin suggests that interpreters of legal practice propose value or purpose (LE 42) and offer justifications why the interpreter believes the practice is worth pursuing (LE 66). This does not imply that Dworkin believes an interpreter is free to impute any purpose whatever (LE 52). Rather, Dworkin believes that several purposes typically can be imputed to a practice and the interpreter must ultimately decide which of these show the practice in its best light.
91. Dworkin, Ronald “Legal Theory and the Problem of Sense” in Gavison, Ruth ed., Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart (Oxford: Clarendon Press, 1989) at 20.Google Scholar
92. Hart (supra, note 55 at 39) is clear on this point: while the (formal) theorist’s selection of phenomena to consider will be not be value neutral, the compelling purpose should be explanatory power.
93. I am not suggesting that city maps do not serve instrumental purposes, simply that the primary criterion for selection of features on them is providing a complete, faithful representation of some aspect of the reported area.
94. For example, it may be that Shakespeare’s views about Shylock were bigoted. Representing Shylock from an anti-Semitic perspective might prevent modern audiences from appreciating Shakespeare’s more fundamental theme of the folly of greed.
95. The fact that incompatible dimensions of authors’ intentions are rarely portrayed suggests that in literary circles there is perceived to be little value in representing alt features of an author’s intentions. Typically, one dimension of an author’s intentions is chosen because that dimension advances values the interpreter considers worth promoting.
96. Fidelity of axis implies that a country that would be reached by heading, say, northeast from the person’s physical location would be shown on the Mercator projection to be to the northeast of the person’s location on the map (The New Internationalist, March 1989).
97. For example, although South America covers twice the area of Europe, on the Mercator projection it is shown as slightly smaller than Europe.
98. If we require a faithful representation of the world we should use a globe.
99. In deciding if we should adopt an interpretation attributed to Fellini as a faithful account of his intentions, we must establish whether the suggested interpretation is more consistent than plausible alternatives with what is known about Fellini’s views on art generally, on the film itself and so on.
100. This type of interpretation might characterize the film in a way that is not particularly faithful to Fellini’s original intentions. Its value may be in making the film more compelling to North American audiences.
101. Speculative accounts arise when judges or other observers conjecture about a particular set of legal practices. These explanations are not authoritative if the individuals are speaking in an unofficial or extra-legal capacity. On the other hand, if an explanation is accepted by a court acting within its authorized capacity, the judicial pronouncement establishes (or confirms) the validity of the explanation. The reasons judges offer in their opinions (excluding obiter dicta) constitute the standards within the practice, whereas speculations about useful ways to conceptualize their practices do not.
102. It might be suggested that a contingent fact of Anglo-American legal systems is that judicial practices are neither homogeneous nor well understood by practitioners and that, therefore, no interpretation can account for all behavior and many practitioners’ explanations for their behavior will be inconsistent with what they really do. The claim that there is considerable confusion among judges about many aspects of legal practice has merit. Despite the apparent widespread confusion about particular matters in judicial reasoning, it is not obvious that these differences preclude assessing rival theories for their fidelity to judicial practices. Certainly, lawyers and judges disagree about the correct application of the law. Yet this admission does not imply there is no agreement about the grounds on which most cases should be resolved; it need imply only that application of the law is not a mechanical process, and that there are conflicting understandings about correct standards in some areas. In other words, recognition of widespread consensus about basic norms and standards, and considerable uncertainty about the law are not mutually exclusive.