Judges as Lawmakers: Harts Rule of Recognition - Essay Example

Judges as lawmakers: Hart’s Rule of recognition Introduction: John Austin was of the view that “a law may be defined as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”1 Austin drew support from views advocated by Bentham who defines law as the signs that indicate the “volition conceived or adopted by the sovereign in a state”2 who conditions obedience and morality through the tools of “pain and pleasure … words which a man has no need… to go to a Lawyer to know the meaning of.”3 Austin supports Bentham’s views in that every legal norm needs to constitute a threat that is backed up by a sanction; therefore coercion is an essential feature of the law. Kelsen is of the view that the ability of the law to use the threat of violence where necessary and impose its rules through its coercive nature is its most important aspect4. Therefore, under such a coercive framework, the scope for judicial interpretation may be seen to be limited, posing the question of whether true justice may be served through rigid adherence to rules laid down by the sovereign and through social norms. Hart fiercely opposes the predictive interpretation of law based upon its coercive aspect on the grounds that such interpretation “obscures the fact that, where rules exist, deviations from them are not merely grounds for prediction that hostile reactions will follow.... but are also a reason or justification for such reaction and for applying the sanctions.”5 Judicial flexibility in Hart’s Rule of recognition: Raz emphasizes the social learning aspect of conforming to rules, applying a test of behavioral guidance to determine that a person could have come to accept the rules without actually deciding to do so, or questioning the original justification for the rule itself.6 According to Hart, a full blown system of law must be equipped with more than mere rules, since these are only “concerned with the actions that individuals must or must not do”, while secondary meta rules that have the primary rules as their subject matter help to “specify the way in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, and the fact of their violation conclusively determined.”7 Thus, while primary rules spell out the obligations of the individual, secondary rules help courts to resolve disputes over the application and interpretation of those primary rules and may therefore be classified as rules of recognition. However, the important aspect that distinguishes Hart’s approach from natural law and morality as put forth by Bentham and Austin is the fact that the law and morality are viewed as strictly separate. According to Klaus F, the definition of law must be completely free from moral notions8, while Hart questions whether law should be conceptualized as coercive mandates and moral commands and concludes that there may be no moral justification mandated through legal rights and duties9. But he does not completely dismiss the moral aspect, he admits that in certain cases, a determination of the validity of a legal rule may involve its compatibility with moral values.10 For example, in the case of Riggs v Palmer11 a defendant who killed his father due to the fear that he might change his will and disinherit him, was considered to have committed an immoral act that could not be condoned although from a legal perspective, the defendant had every right to inherit the property. Dworkin states that the Court decided this case on the basis of “the principle that no man may profit from his own wrong as a background standard against which to read the statute of wills.”12 In effect, such judicial interpretation impacts upon existing law. In the case of Riggs the judges have performed a function of not merely applying the law, but indicating change in the law to support justice. Similarly, in the landmark case of Roe v Wade13, the existing law on a woman’s right to an abortion was changed and the factor impelling the decision of the judges in this context was the secondary rules that were the result of the social context governing the individual case. Another such case that may be cited is that of Hedley Byrne14 where the judges expanded the scope of contract law, circumventing the Doctrine of Privity of contract, to include and allow third party action under tort. Hart describes those laws that impose duties on individuals as the primary rules of obligation, where the function of judicial interpretation is limited. However, when the primary rules are not sufficiently clear or comprehensible, then there is likely to be uncertainty in determining duties and obligations under the law, which will necessitate the application of secondary meta rules that he characterizes as the rules of recognition. In some instances, where primary rules are inadequate to satisfy the requirements of the law, it may be necessary for judges to engage in creative judicial interpretation to ensure justice, which in some cases may also mandate the formulation of new laws. Hart’s Rule of recognition thus allows for judicial interpretation of the law which may even extend to the evolving of new statues where necessary. The application of the law to an individual case could form the precedent for a general rule of law that will be applied in the future, as has been the case with Roe and Hedley Byrne. As explained by Raz, “Many legal systems recognize that both rules and principles can be made into law or lose their status as law through precedent.”15 This is precisely the aspect that leads to the judicial law-making function, since existing laws can be over-ridden or new laws mooted through the precedent established by judicial decisions. Since there is room for interpretation in some cases like Riggs where the decision of the Court to eschew promulgated law and set a new precedent may be seen to be a function of its discretion in interpretation, this places judges more in the capacity of forces instigating changes in law. This is so even in a country like the UK where according to Dicey, the judicial role is to protect Parliamentary sovereignty from any encroachment by the executive and in doing so, fulfill the function that Parliament has assigned to judicial authorities.16 As Lord Browne Wilkinson has pointed out, British judges have already used their judicial power in several cases to protect what they consider as fundamental rights17 indicating their willingness to subject government initiatives impacting upon fundamental rights to “the most anxious scrutiny”18 Therefore, the significant impact of judicial decisions in cases such as Hedley are important in establishing the law-making role that is partly imbued upon judicial authorities. Judicial activity sometimes requires an application of principles that may extend beyond those strictly promulgated under the law and such binding principles are derived from their contributions in terms of providing the best moral justification for society’s legal practices and existing rules19. Dworkin however, rejects Hart’s concept of judicial discretion as being inclusive of the facility of formulating new laws20, but views it as being restricted to the determination of legal principles in accordance with the existing laws. Dworkin contests the rule of recognition and states that “if we treat principles as law we must reject the positivists first tenet, that the law of a community is distinguished from other social standards by some test in the form of a master rule.”21 He also rejects the social rules basis of Hart’s rule of recognition and states: “…two people whose rules differ ... cannot be appealing to the same social rule, and at least one of them cannot be appealing to any social rule at all"23 In pointing out the conflicts that arise in an application of social rules to an interpolation of national and international laws, Dworkin points out that Hart’s qualification about his rule of recognition being flexible at some points, in fact undermines his theory. “ If judges are in fact divided about what they must do if a subsequent Parliament tries to repeal an entrenched rule, then it is not uncertain whether any social rule [of recognition] governs that decision; on the contrary, it is certain that none does.24 Conclusion: On the basis of the above, it may be noted that Hart’s rule of recognition allows flexibility of judicial interpretation within the framework of social rules. While judicial function is strictly restricted to interpreting the existing law, judicial activism has in fact resulted in some instances where the precedents set by judicial authorities have become the law through continued application via established legal precedent. While in the UK, the law making function of the judiciary is not so pronounced, this may be seen to be a function of the lack of separation of powers between executive and judiciary through parliamentary sovereignty. However in countries such as the United States, precedents set by the Supreme Court have undoubtedly formed the body of future law and therefore the objections to the judicial latitude allowed within Hart’s Rule of recognition are justified. Bibliography * Austin, John, 1977. Lectures on jurisprudence and the philosophy of positive law. MI: Scholarly Press. * Bentham, Jeremy, 1782. Of Laws in general. HLA Hart edition, London: Athlone Press, 1970 * Dicey, A/.V. (1885) “Law of the Constitution” 10th edition, 1914. Oxford: Oxford University Press * Dworkin, Ronald, 1977. Taking Rights Seriously. Cambridge: Harvard University Press * Hart, H.L.A., 1994. The concept of law. 2nd edn. Oxford: Clarendon Press * Kelsen General theory of Law and State * Klaus, F Per, 1996. Farewell to legal Positivism: The separation thesis unraveling In George, Robert P. The autonomy of law: Essays on legal Positivism Oxford: Clarendon Press. * Raz, Joseph, 1972. Legal Principles and the limits of law 81, Yale Law Review, 823 * Raz, J, 1975. Practical reasons and Norms Princeton University Press Cases: * Hedley Byrne v Heller (1963) 2 All ER 575. * R v Secretary of State for the Home Department ex parte Bugdaycay (1987)AC 514 * Riggs v Palmer (1889) 115 NY 506 * Roe v Wade Read More