Major Theories of Legal Reasoning - Essay Example

The debate between the major theories of legal reasoning is abound with fuel for continuation; the current focus being positivism and naturalism to explain what law is. In order to understand one, the other must also be explored and contrasted, for the theories delve deep and on-the-surface explanations can create misunderstandings about the differences between the two. Major differences between theories of justice often cause us to overlook the fact that they are based on the process of comparing an act to a certain standard in order to determine whether it is legal. (Szekessy 2002, pp. 1-2) The difference between the approaches is exactly which standards are balanced. Though fundamentally different, the two approaches do have some similarities. “The fundamental value in judicial ethics is impartiality.” (Wendel 2007, p. 1) This positivist reasoning holds the view that judges must decide cases purely on their merits, with an open approach and thus not be influenced by bias or prejudice. The standards here are only to be found in the material posited law; entirely segregated from moral considerations or personal ethical opinions. Ultimately, the judge has slight, or no discretion when ruling in cases; he is to simply refer to case law and legislation and may not refer to his own opinions of what he conceives justice to be. Thus, theoretically, no person can be guilty of an offence that did not exist at the time of his act; a judge cannot change the law depending on the current case, as his personal opinion denotes. Indeed, it is argued in this area that the central aim of jurisprudence is to draw a line between ideology and law, the latter being the only ground for decision making. (Kennedy 1997, pp. 24-25) Suffice it to say that the judge must simply apply the case law and/or legislation without referring to non-legal considerations. Positivists consider these non-legal considerations to open the law up to arbitrary decisions, entirely at the mercy of the judge’s moral outlook. This distinction between legal and non-legal considerations is exactly what the positivist approach stipulates. In comparison to legal considerations based on legislation and case law, non-legal considerations are those based on political, moral and ideological factors. It is this particular feature of positivism; that in which it breaks away from any moral considerations and values. Raphael (Raphael 1994, ch. 2) stresses the non-existence of objective moral principles because values can only be expressed in the form of different beliefs and attitudes towards values. Such expressions are subjective; the way we react to an act is not the result of the act itself, but the result of our personal perception of the act. The ongoing abortion debate is a clear and apt example of this concept; some abhor the idea, labelling it as murder whereas others believe that women have the right to make such a choice. Moral perception is emotional, hence judges cannot be free to make changes to the law because their opinions will not and cannot be objective. Just as Hume (Hume, III.i.1) stipulates, the idea that lying is wrong is a fact in the mind and not in the act itself; because each mind can vary, there can be no objective moral opinion. These arguments seem plausible enough for straightforward cases. For most legal issues, the judge need not deviate from legislation and past decisions because they provide the ample criteria for a decision. But what of the ‘hard cases’? What if the application of a legal rule is indeterminate? Here, positivists Ronald Dworkin and HLA Hart differ in reasoning, and this is where one begins to notice the deeper concept of positivism – the distinction between hard and soft positivists. Dworkin maintains that there is always applicable law, whereas Hart holds that such ‘hard case’ circumstances allow judges to legislate on the basis of non-legal considerations. Dworkin requires some authoritative source such as legal rules and principles as the basis for and control over a decision (Dworkin 1977, pp.32-34) whereas Hart recognises the ‘open textured’ nature of terms which require that the judge be permitted to exercise some degree of discretion. (Hart 1994, pp. 145-147) But to what extent? May he simply balance two definitions of a word depending on the case, or may he ‘add-in’ actual definitions? Let us take as an example Judge Ormrod’s reasoning in the case of Corbett v Corbett (1970). Concerning the word ‘woman’ within the definition of a marriage - without further legislative aid, how are we to define this? Most positivists would claim that whether the term ‘woman’ will include psychological as well as physical and biological factors will depend on the individual’s perception. With vague legislation, and definitions of such on moralistic bases, one risks the judge deciding a case as he wishes; subjectively based on his own moral standards. Hart’s theory is more suitable for the less vague terms and more subtle alterations, where the change is the result of “resemblances which can reasonably be defended as both legally relevant and sufficiently close.” (Hart 1918, p. 127) The judge thus chooses between pre-existing definitions, but does not actually devise his own definitions. This limits the judges’ use of discretion, whilst also allowing some leeway in particular cases. This appears to be the closest the positivist law will come to allowing somewhat morally-based decisions; albeit limited to deciding between pre-existing legal definitions. It seems that for a law to be valid in a purely positivist legal system, it must only adhere to procedural requirements. The power of the legislator is somewhat unfettered and the judge enjoys no participation in its validity no matter how unjust it may be considered. The German Constitutional Court has addressed this issue and responded that material justice considerations may override legal security in extreme situations. (Szekessy 2002, p. 3) Based on the Radbruch Formula, it holds that if the contradiction between positive law and justice is unbearable, justice is to overrule and make that law void. (Radbruch 1946, pp. 105-108) But where should this justice derive from? If the basis upon which one decides the contradiction to be unbearable is a recourse to morality, the positivist exclusion of morals as a validity factor of a rule makes this unobtainable. It seems to permit the use of moral considerations in a theory that purports to eradicate the link between morals and law. A solution to this would be to posit a law that stipulates exactly when and under which circumstances a posited law may be outweighed by justiciable values; to prescribe when a moralistic weigh-up may be enforced. Yet, how could such situations be defined with certainty? To alter law without such legislative basis removes all certainty from the legal system. One turns to a disturbing case to explain an important aspect regarding the positivists’ need for certainty in the law. Two ten-year-old boys battered two-year-old James Bulger to death (R v Secretary of State (ex p V) 1998). They were sentenced to ten years imprisonment, but following public outrage, the Home Secretary increased their terms to fifteen years. The Court of Appeal ruled that this extension was unlawful, and the boys were released after eight years. It is suggestible that the Home Secretary’s decision was based on moral considerations. At the time of the murder, the legislated maximum sentence was ten years, so why the sudden increase? The positivist would argue that it is not for moral repulsion to change sentence lengths at will; the effectiveness of the law is based on certainty and to compromise it would be to open the law to last minute drafting. In the extreme case, the issue should be referred to the legislature to determine. But changes implemented by the legislature should, in the interests of certainty and fairness, allow the individual perpetrator to escape retroactive punishment. If we are to import morals into decisions, let us not forget the immorality of punishing a defendant for an act that was not illegal at the time he committed it. One can see here just how strongly the positivist point of view can present an argument. Critics of this positivist approach are, of course, the natural law theorists. The belief that there can be an objective knowledge of right and wrong is paramount to this line of thought. The natural lawyer believes that courts can and do refer to natural law principles if authority does not provide for the circumstances of a particular case; the belief that human nature is naturally good stipulates that judges can be trusted to do this. The judge’s reflective intellect possesses a direct knowledge of the qualities from which conclusions might be drawn about what justice requires. And because one basic standard of morality exists for all, a judge’s moral consideration represents that of the people. Aquinas holds that human laws derive their legal validity from natural law. (Aquinas 1265-1274, part 2: qu 94, art. 2) Rousseau believes that natural rights exist which cannot be entrenched upon by positive law. (Rousseau 1762) Justinian exclaims that the natural law is never changing whereas positive law constantly develops, therefore a judge, when he refers to moral considerations is referring to the ultimate precedent provided for by natural law. (Justinian 535 CE) Positivists claim that there is no such underlying natural law; there is no universal moral code upon which the written law is based. The problem here is that naturalists do not account for the specific reasoning of hard cases. Indeed, it is plausible that everybody consider murder and rape to be wrong; posited law is unlikely to conflict with natural law. But what of the killing of one weaker person in order to save the other stronger person, knowing that to leave them will eventually lead to both of their inevitable deaths? (Re A (Conjoined Twins) 2000) Which natural law principle can guide such a decision? Such harder cases, it could be argued, cannot be ‘universally’ agreed upon, because there are a great number of conflicting interests, and this is exactly where the positivist argument seems to prevail. To allow the judge’s discretion to refer to moral consideration in such a case could just as easily cause his decision to fall either way. For the general cases, it is plausible that a general universal moral underlying the law can exist (Finnis 1980, p. 33-34) – but it is exactly in these cases that the judge need not depart from the existing law because it has already been acknowledged. In the more specific or hard cases, opinions and morals are more likely to differ, yet is here that the naturalists trust judges to make the ‘naturally’ right decision. Yet, such cases are called hard cases because they have no objective basis of legal or moral reasoning – otherwise the legislature would have recognised and legislated for them. In such a case, one would perhaps follow the utilitarian and make the decision that gives the greatest good to the greatest amount of people. But even this decision in itself could be a result of my natural inclination to achieve good. So, the fact that one made this decision is indeed the basis of a natural inclination towards good – and this is indeed what naturalists trust a judge to do. Positivists indeed argue that critics of naturalism often err in forming too specific a view of natural law principles. Gratian exclaims that natural law need only override positive law when the two conflict (Gratian 1140). But a positivist would argue that if positive law is a result of natural law, then how can the two conflict? The naturalist would reply that natural law is a separate and superior intellect to posited law, therefore judges may include such moral considerations in their decisions. But how do the two connect in the way that allows natural law to override conflicting positive law? We as humans, with access to intellectual reasoning, posit the law; are we not naturally inclined to posit laws that are in accordance with natural law in the first instance? How can conflicts possibly occur between the two? If we made this conflicting law in the first place, it seems we were never ‘in touch’ with the natural principle it conflicts, and if we are not in touch with that natural principle how do we know that a conflict exists? If natural law is universal, then we all apparently have the same qualities and beliefs within us, so are not able to differentiate because we all believe the same. For example; let us all accept that it is a natural law principle to preserve life. Therefore, we all employ certain rules in our society to ensure the preservation of life. In some societies this means killing the elderly to save sparse resources for the young, in others this means ensuring the quality of life for the elderly. Indeed, the fundamental value; the preservation of life is universal. Yet, the way in which this value is expressed from society to society differs. Let us label the preservation of life principle as the Basic Principle and the ways in which it is expressed the Specific Principle. Let us accept that the Basic Principle never changes. But the Specific principle is a clear expression of differing opinions; where the morals of one society would repel killing the elderly, the moral beliefs of another would repel the preservation of the elderly. Now, for a judge to employ moral considerations in a case; seeing as the Basic Principles are universal, he will have no need to refer to these as they will already have been captured in the legislation. This leaves him with only the Specific Principles to refer to. And these Specific Principles are evidently not expressed universally, so we cannot trust the judge to refer to universal principles – his own morals will inevitably affect his decision. This only ensures the consistency of legal principles within certain societies; is this acceptable? According to John Finnis, the answer is affirmative, although he acknowledges the fact that what is good is decided in a different logic to when we observe facts. In conclusion to this rich and wonderful issue, one may form varied observations. It seems that, in general, theories of jurisprudence are rather ideological and unforgiving to oppositions. Naturalism, though it paints a romantic image of the human good, seems to base its theory on wise humans – it does not account for the need to educate those who are less in touch with their ‘rational’ characteristics. On the other hand, positivism is rather extreme and places too much faith in the system. One could find it rather difficult to see a legal system based solely on one or the other theory functioning. Reality and ideology are very different, and we must adopt that which works – in my opinion, this is a combination of approaches. There will never be a perfect basis for a legal system, and the closest that we may come to one is with an approach that is open to combined theories. Both the perfect romanticism of ideology and the harsh practically of reality must be present, and inspire one another. Bibliography Aquinas, Thomas. Summa Theologiae. Part 2, Question 94, Article 2, 1265-1274 Dworkin, Ronald. The Model of Rules I in Taking Rights Seriously. Cambridge: Harvard Uni Press, 1977 Finnis, John. Natural Law and Natural Rights. Oxford: Clarendon Press, 1980 Hart, HLA. The Concept of Law. 2nd edition. Oxford: Oxford Clarendon Press, 1994 Kennedy, Duncan. A Critique of Adjudication. London: Harvard University Press, 1997 McLeod, Ian. Legal Theory. 2nd edition. Palgrave Macmillan, 2003 Radbruch, Gustav. Gesetzliches Unrecht und Ubergesetzliches Recht, 1946 Raphael, D.D. Moral Philosophy. London: Oxford University Press, 1994 Rousseau, Jean-Jacques. The Social Contract. 1762 Szekessy, Lilja. Justice in Constitutional Courts. Berlin, 2002 Wendel, W. Bradley. Jurisprudence and Judicial Ethics. Poland: IVR World Congress of Philosophy of Law, 2007 Cases Corbett v Corbett [1970] 2 WLR 1306, CA R v Secretary of State (ex p V); R v Secretary for the Home Department (ex p T) [1998] HL AC 409, [1997] 3 All ER 97 Re A (Conjoined Twins) [2000] 4 All ER 961, [2001] 1 FLR 1 CA Read More