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Lecture: Law, Adjudication, Human Rights, and Society
Published online by Cambridge University Press: 04 July 2014
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Haim H. Cohn Professor of Human Rights, Faculty of Law, the Hebrew University of Jerusalem. I thank Yahli Shershevsky for research assistance in this work and Alon Harel for his useful comments on an earlier draft. This is an adaptation of the introductory talk given at the Fulbright symposium in Jerusalem, January 29, 2006, as an introduction to the keynote speeches of President Aharon Barak and Justice Antonin Scalia. The themes discussed within this lecture have been the subject of an enormous and nuanced literature. I decided to keep the format of the lecture to maintain the sharpness and scope of the presentation. Inevitably, what I am saying here is very schematic and oversimplified.
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1 I am talking about results that “seem unjust” and not about “unjust” results simplicter for two reasons. First, I do not want to take a realist position on meta-ethics (or to deny it). Second, I assume throughout that it is easier to identify law than it is to identify morality, and thus that it is more likely that we shall have debates about morals than we shall have about the law. Among other things this is true because in law there is an authoritative way of stating the law whereas there is no such mechanism in morals.
2 I am using “hard cases” here as used in the maxim “hard cases make bad law.” These are not hard cases because it is not easy to identify the law, but rather they are hard because of a tension between the result that the law requires and the result called for by our sense of justice. For reasons discussed below, it is sometimes controversial if a case is hard in this sense. In Israel, Yeredor (EB 1/65 Yeredor v. the Chairman of the Central Election Committee [1965] IsrSC 19(3) 365 is a strong example of a hard case. In the US, Brown (Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)) is seen by many as a hard case. It should be noted that a hard case is not usually the type of case involving a law that is so unjust that a natural law theorist will be moved to deny its legality. Those who think that it is unjust to deny same-sex couples the right to marry will probably not go far enough to argue that a law limiting marriage licenses to heterosexual couples is “not a law.” Instead they will argue that it is not constitutional.
3 In the US Supreme Court, only a small number of cases are picked to be decided each term. Most of these involve a serious question of law, and many of them are hard cases. In Israel, because the Supreme Court is a court of appellate jurisdiction and in some cases a court of first instance, the proportion of hard cases may be very different.
4 Those arguing that the intermediate model is incoherent can be either descriptive or normative or both. The most famous attempt to vindicate a sophisticated rule-of-law model which is in fact an almost pure justice model has been initiated by Dworkin with his “one right answer” thesis. Dworkin, however, can maintain his thesis only at the cost of losing the distinction between what the law says by any plausible reading of the text and historical materials (first-stage-law) and the law as he interprets it (law as coherence). While Dworkin admits that in rare cases even law as coherence generates unacceptable results, thus stopping short of a full model B approach, he is depicted by his critics as making a strong contribution to the dilution of the differences between the two extreme models. On the other hand, those who claim that law is never determinate and thus can never bind, seem to reduce all adjudication to the justice model. They usually fail to explain and justify the power of judges to apply raw justice, or to account for the fact that many judges explain their decisions as a preference for the law over what they think is right.
5 Again, what I am saying here is stark and needs to be made much more nuanced. But all legal scholars, irrespective of their theories of interpretation and meta-ethics, concede that there are differences between law and morals that makes it easier to identify laws than it is to identify moral norms. First of all, there are easily ascertainable facts which form part of the answer to the question, “what is the law?” on a certain point, such as the text generated by the legislative process. Often, there is no easy point of reference for moral norms. Literal meanings are governed by rules and practices. Legislative intent is also an empirical question. Even those who advocate teleological interpretation of the law must start with the text and remain within its limits. In short, there is an important difference between the mode of debating the meaning of a legal text and debating the implications of justice. And this is not an accidental difference. Rather, it is connected to the nature and functions of law.
6 But the justifications are all built on the assumption that judges do stay very close to the rule-of-law model, and that the cases in which they “correct” law by justice are rare and relatively insignificant. The force of these justifications is minimized when judges adopt “interpretive” theories that allow them to replace legal arrangements with their own visions of good law. As I stated above, the interim position may not be stable. Its logic may indeed position the user poorly on the continuum so that it may be best to return to the clarity of the rule-of-law model as a matter of a second-order argument.
7 When the law is unclear, there is indeed a necessity for invoking non-legal norms to interpret the law. In such cases it is easier for law-as-justice judges to reach their favored result. Rule-of-law judges would indeed invoke norms going beyond first-stage law, but will seek to invoke social mores or non divisive principles.
8 In the US a notable case in which a controversial decision did not seem to be law-based was the series of abortion decisions in which the Supreme Court invalidated state statutes prohibiting abortion. In Israel the most dramatic cases of this sort are the ones in which the court reviewed issues that would have been seen as non-justiciable in most other countries, and in which the controversy did not seem legal to many observers irrespective of their political opinion on the merits of the challenged policy.
9 This, too, is a very controversial statement going much beyond the scope of this lecture. For some discussion see my essays: Gavison, Ruth, The Relationships between Civil and Political Rights and Social and Economic Rights, in The Globalization of Human Rights (Caucode, JM & Doyle, M eds., 2003)Google Scholar; Gavison, Ruth, The Role of Courts in Rifted Democracies, 33 Isr. L. Rev. 216 (1999)CrossRefGoogle Scholar.
10 I limit my statement to norms of other legal systems and of international law that are not seen as binding within the national legal system. Thus I am not addressing the fascinating literature claiming that some international human rights norms are incorporated into all or some national legal systems. To the extent this is indeed the case, these norms are no longer to be seen as foreign. What I will be saying here may be relevant to the question whether we should see international human rights norms as incorporated into national legal systems, but I take answers to this question as given, and address only the use of norms that are conceded not to be binding as national law.
11 In important questions some judges may refer to international or comparative law just to be comprehensive or scholarly, despite the fact that the question is easily settled within the law of the land. It is questionable whether this is good judicial policy. But these are not the cases we are discussing here.
12 The real test of rule-of-law judges is if they will apply first-stage-law even if that law runs counter to their own sense of justice. Often, it may appear as if both groups of judges reach their preferred results, and those who can credibly rely on first-stage law present their decision as a necessary implication of that model. Often, for obvious reasons, first-stage law does lend stronger support to the values of conservative judges.
13 People may agree to this general statement and nonetheless debate the attitude the law should take on particular issues. Often, they argue about the power of courts—rather than legislatures—to decide such issues. Thus, most Americans do not want to prosecute homosexual relations between consenting adults. Some of them will argue that this is something that should be done by legislatures, not by courts. Most Americans do not think courts should decide the issue of same-sex marriage as a matter of rights overriding contrary legislation, but people are divided on the question whether legislatures should allow such marriages.
14 Of course, the question what is “American” may itself be deeply contested. Is America Christian? Of what form? Western? Is there a culture that is distinctively American? Clearly, if there is this internal debate about American norms, it is best to debate it within American sources. The US is often described as the most religious of the Western states, and as the most conservative (at least in some parts of the US). This is precisely why American, and Americans within their communities, should have the freedom to decide these issues for themselves.
15 Every society and every state must have some strong assimilating features. Language and cycles of the week are an obvious example. It is very difficult to integrate and succeed in a society without being versed in its language and culture. Moreover, in Europe there is now a serious re-thinking of multiculturalism as it has become evident that it encourages large enclaves of non-assimilating immigrants who cannot integrate into the host society.
16 A Palestinian state will permit Israeli Arabs to choose to live within their culture in another part of their homeland, or they can stay within Israel as a minority and maintain strong cultural ties with the Palestinian state. This was the vision underlying the 1947 UN partition resolution, which was not implemented due to the Arab total rejection of the notion.
17 The law replaced Section 46 of the Mandatory King in Council Ordinance specifying that in cases of gaps in the law, Palestinian judges should follow the principles of the common law and equity.