Three Perspectives on Judicial Discretion - Essay Example

Your Your The Law vs. Ethics: Three Perspectives on Judicial Discretion In Robert Bolt's play A Man for all Seasons, Sir Thomas More faces a very difficult ethical dilemma: whether or not to give his approval to the plans that King Henry VIII of Britain has to divorce his current wife. While, as king, Henry could have chosen (and actually did choose) to do whatever he wanted, he felt that he needed More's open support on a political level. Ultimately, More resigned his position rather than give his views about the king's marital affairs publicly, but that did not spare him from being executed all the same. While the dilemma is in full sway, More debates his future son-in-law, Roper, about the importance of the rule of law. After Roper says he would cut down every law in England that kept him from pursuing and capturing the Devil, More answers: Oh And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then Yes, I'd give the Devil benefit of law, for my own safety's sake! (Bolt 46) In other words, from More's perspective, the protections that the law affords everyone are worth the protections that the law offers the accused, no matter how obvious his or her guilt may seem. More clearly advocates a fairly literal application of the law and would frown on a great deal of legislation from judicial benches. More, of course, lived four centuries ago. Legal philosophy has changed a great deal since then. One movement that has been particularly influential in the past century has been the advent of legal positivism. This idea asserts a fundamental difference between law and morality. By extension, this idea suggests that there is room for judges to act as social activists, and use rulings to ameliorate the damage that the gaps between the laws as they stand and the ethics of particular situations can wreak. H.L.A. Hart, Ronald Dworkin, and Alfred Altman all have perspectives on the proper role of judicial activism and discretion. Dworkin and Hart come in on basically opposite sides of the argument. While Dworkin views the law as a system that always provides a correct answer, through his Theory of Adjudication (Gaffrey 22), Hart asserts that laws themselves are "open-textured" and that there is room for judges to use discretion to plug the gaps between legal rules and morals (Bix 52). Altman takes a middle view based on his idea of "truncation," which basically refers to a judge knowing when to apply the law to its most literal extent, and when to abridge its extension (Altman 5). Given the liberal ideals of the modern rule of law in the United Kingdom, it would seem that this middle way provides the most room for compromises in cases where compromises are clearly needed, without permitting judges to become too activist in their rulings. Hart's concept of legal positivism divides the law into two categories: primary, or duty-imposing, rules, and secondary, or power-imposing rules. Primary rules confer rights or set obligations: criminal law is made up of only primary rules, for example. Secondary rules dictate the ways in which primary rules are made and enforced. An example would be the rules that dictate the makeup of Parliament, and the rules governing the enactment of acts in Parliament (Bix 51). One of the most crucial elements of Hart's theory is the "open texture theory." Hart uses the term "open texture" to mean that there are some situations in which judges should apply discretion when there is a case that may be said to fall outside existing rule of law. He supports this assertion with three reasons. First, language itself, which comprises laws, contains many loopholes, just by virtue of its very nature. While words in a legal rule may well have a consistent core meaning, they also have of a penumbra of meaning outside the core. For example, if someone saw a sign forbidding the parking of "vehicles" in a park, the definition of vehicle could make a bicycle legal, or roller skates illegal, if one went just by the number of wheels on most "vehicles." This "penumbra" of uncertainty gives such leeway in legal matters that judges must have discretion to fill in gaps of ambiguity. Second, legal rules tend to use standards that are very general. Words like "justice" and "reasonableness" contain an incredibly wide spectrum of possible interpretations, that vary from judge to judge, or even from day to day with the same judge. This imprecision can lead to a great deal of ambiguity in the rendering of judgments. Third, the use of precedent in common law opens the door to a great deal of ambiguity. Hart asserts that there is no one method that governs the way in which precedents are chosen in cases, and in which holdings are gleaned from those precedents. Individual judges are granted a considerable deal of leeway in the way that they construe holdings that precedents provide. Because of these three areas of ambiguity, Hart asserts that there is no such thing as an answer to a legal situation that is absolutely correct, and so judges must work hard to find the best solution to each case, using their discretion to fill in the gaps in legal language and case law (Bix 54-56). Ronald Dworkin found that Hart's theories contained several flaws. His first criticism of Hart focused on two areas: first, in Hart's assertion that law consists merely of rules. Dworkin argues that there are also principles in the legal system. Examples of these principles include norms, principles, and policies. While Hart sees laws as rules that make something of a firm network of lines in between various cases fall, Dworkin sees the principles behind some of those laws, as nets that catch those cases before they fall all the way through. It is these principles that should provide guidance to judges, rather than permitting judges the free rein to interpret rules that Hart asserts (Gaffrey 108). When there are conflicting principles that apply to the same case, then a judge should determine which side has more principles that support it. Because principles carry more weight than rules, it is principles, in Dworkin's mind, that should govern the way in which a decision is made. And so Dworkin's idea of judicial discretion is much more limited than Hart's. While judges may exercise some discretion, according to Dworkin, they must use it subject to set standards and existing principles in law. He objects to Hart's idea that the judge has fairly free rein to reach judgment in the large gaps that Hart sees between the various rules that make up the law (Gaffrey 111). Into the middle of this argument steps Alfred Altman. Interestingly, much of his argument is based on the nature of the British government, rather than on the more basic nature of the law. Because the United Kingdom's government is a "modern liberal state," Altman argues that the judicial system needs to take into account the needs of a liberal democracy to embrace the idea of compromise. Because of this, judges need a certain amount of discretion to find rulings that are fair and equitable. The fact that Altman gives judges a fair amount of leeway and yet makes them subject to principles of fairness puts his argument between Dworkin's and Hart's arguments, and given the nature of British society and politics, his argument makes the most sense. Works Cited Altman, Andrew. Critical Legal Studies. Princeton: Princeton University Press, 1990. Bix, Brian. "H.L.A. Hart and the 'Open Texture' of Language." Law and Philosophy 10, 51-72. Bolt, Robert. A Man for All Seasons. New York: Knopf Publishing Group, c1990. Gaffrey, Paul. Ronald Dworkin on Law as Integrity. New York: Meller University Press, 1996. Read More