Juris (6) Adjudication
Juris (6) Adjudication 1
(A) Radical Scepticism (Singer) 4
Singer 4
(B) Partial Constraint through Source-Based Law (Hart & Raz) 11
Hart’s position 11
Raz’s Position 13
Dworkin’s position : criticism of partial constraint view 21
(C) Total Constraint through Constructive Interpretation (Dworkin) 27
(D) Coherence in a positivist account (MacCormick) 35
Critique 41
(E) Implications of Incommensurability 45
(F) Implications of pluralism 49
Exam Questions 58
Page 1 of 59
,Adjudication is what judges do.
Questions about adjudication
(a) How do judges decide cases
• positive or descriptive question; what considerations do they rely on
(b) How should judges decide cases
• normative question; setting aside what they do
(c) Can law constrain adjudication
• does the law constraint what judges do;
• the general lay man view is that law constrain adjudication; some say the law doesn’t constrain or does little to
constrain
(d) To what extent, and how?
Judges as Umpire
- ‘Judges are like umpires. Umpires don’t make the rules; they apply them. It’s my job to call balls and strikes and not
to pitch or bat.’ (Roberts, C.J.)
• Analogy of judge as baseball umpire. The umpire judge analogy is absurd?
• Judges should just apply the law.
Judge as law maker
- Common Law
• Think about tort law ; Donoghue v Stevenson (general duty of care in tort of negligence, in the manufacturer of
product owed duty to ultimate user) This is judge-made law. If judges didn’t make the law, who did make it?
- Sometimes judges are honest about this law making. (extra-judicial speeches)
• ‘We do not believe in fairy-tales anymore’ (Lord Reid)
• ‘In the common law world there are unquestionably some areas in which judges necessarily make law.’ (Lord
Sumption)
- Brexit case regarding triggering of Article 50: a ‘hard case’
• Could government exercise via prerogative trigger Article 50. Need parliament?
• The executive has the power to conduct foreign affairs vs parliamentary sovereignty
• The courts decided that parliamentary sovereignty prevailed, need parliament to trigger Article 50.
• There is no statute to tell judges what to do ; constitutional law developed through case law
• It is political case, the judges driven by legal considerations
Judge as Law-Maker : Texts
- Judges also interpret authoritative texts laid down by statute / constitution
- Not judge-made law in the same sense ; the law is made by the legislature
- Yet judges seem to have latitude/power
- e.g.
• Human Rights Act (incorporates European Convention of Human Rights ; Article 8 have right to respect for
private and family life ; this could mean a lot of things, the judge decide what these provisions mean?)
• U.S. Constitution (right to abortion is an interoperation of the US constitution decided by judges by Rode v Wade)
• Consumer Rights Act (some contracts are unenforceable where it is contrary to requirement of good faith ; up to
judge to decide what is and is not contrary to good faith)
Connection with Law and Morality Topic
- Law-adjudication relationship depends on one’s account of law (LT Part 1)
- Legal positivists tend to embrace ‘partial constraint’
- Positivism’s critics (especially Dworkin) claim its account of adjudication is faulty.
• Dworkin Hart’s postscript ; Dworkin comes with imaginary case of Mrs Sorenson (criticism for Hart’s positivism)
- Natural law and adjudication
• Dworkin in not natural lawyer, but share some views of natural law.
• Finnis criticise Dworkin’s view of adjudication
Connection with Legality topic
- Adjudication → Rule of Law?
• Is the ideal of law-bound official action even possible?
• Official action can be constrained by previously laid down rules ; may conclude that RoL isn’t really possible
- Rule of Law → adjudication?
• Should judges make (or even violate) the law?
• Official action must be congruent with the law previously laid down ; judges must be bound by law and follow the
law.
Page 2 of 59
,• Critical view of RoL and what they say about adjudication
- Robert Cover : judges ought to conceive adjudication is a different way to do the right thing
Page 3 of 59
, (A) Radical Scepticism (Singer)
On this view, law is pervasively indeterminate. Law is not capable of constraining judicial decision.
Radical Skepticism — Background
- Radical scepticism: law generally does not constrain judicial decision
• Judges’ hands are not bound ; they can do whatever they want
- Law is pervasively indeterminate
• This idea is associated with a group of thinkers known as the American Legal Realists (whose heyday was the
1920s and 1930s) and was intensified by the Critical Legal Studies (CLS) movement (1970s and 1980s).
• The aim of the CLS account of adjudication is to discredit orthodox views about law so as to clear the way for
leftist political projects.
• The group of American law professors and judges were highly critical of what judges do; some of these legal
realists stressed that law is indeterminate (does not provide determinate answers in particular cases)
• If law is not telling what judges what to do, what tells them what to do? Judge hunches about fairness, judicial
psychology? ‘depends on what the judge had for breakfast’
- Divergence between stated reasons and real reasons for judicial decisions
• Judges give reason for cases; but legal realists say that real reason lies elsewhere
- Claim deepened (exaggerated?) by Critical Legal Studies movement (1970s / 1980s)
• Movement when US moved to the right; and legal scholars wanted to pull back to left
• Focused attention on what judges do
• Their view was not just a philosophical view about judicial action but giving a political claim; judges are on the
left on politics ; and want to move judicial action towards left ; the obstacle to the movement is the existing law
and legal practice
- CLS: an avowedly leftist movement
- Internal critique of adjudication to clear the way for egalitarian change
• Judges decisions do not make sense (internal critique) show that adjudication doesnt make sense in the current
form; and move towards egalitarian change.
- Attempt to delegitimize ‘liberal’ law
• Great critiques of liberal law; liberal means being left ; liberal means conservative ; not into individual rights
model
Singer
- Singer is a member of critical studies movement.
• He seeks to show that law is inevitably self-contradictory, ambiguous, vague, full of gaps and are subject to being
changed ad hoc by judicial decisions.
- he doest say that law doesn’t provide any constraints on judicial action; doesnt say that it is full indeterminate
- It is possible to have determinate law ; but nobody wants this, any attempt to do what people might consider
justice is going to be indeterminate.
• Why is law indeterminate? He identified sources of indeterminacy in law
(i) Incompleteness : law is incomplete, this happens all the time in new cases, all different someway from
each other ; cases are of first impression
(ii) Contradiction : law contains ideas that contradict each other ; in contract law there is principle of freedom
of contract, the power to decide whether to enter into contract and what terms , at the same time, weaker
parties shouldn’t be exploited
(iii) Abstraction : take judgment to apply ; duty of care in negligence ; reasonable person standard ; this is
abstract ; need judgment as to how the abstract idea applies to a particular case
(iv) Judicial power to revise law : in common law ; to bring it up to date with society changes and new
conditions ; there is no such thing as rape between husband and wife ; but courts decided that martial rape
is still rape ; judges have power to overrule previous decisions ;
INTERNAL CRITIQUE
Singer, who is a member of the Critical Legal Studies movement, takes the radical skeptic view that the law is
pervasively indeterminate because it does not fully constrain our choices. Law is indeterminate because it is
incomplete, self-contradictory, ambiguous, full of gaps and are subject to the judicial power of revision.
Page 4 of 59
Juris (6) Adjudication 1
(A) Radical Scepticism (Singer) 4
Singer 4
(B) Partial Constraint through Source-Based Law (Hart & Raz) 11
Hart’s position 11
Raz’s Position 13
Dworkin’s position : criticism of partial constraint view 21
(C) Total Constraint through Constructive Interpretation (Dworkin) 27
(D) Coherence in a positivist account (MacCormick) 35
Critique 41
(E) Implications of Incommensurability 45
(F) Implications of pluralism 49
Exam Questions 58
Page 1 of 59
,Adjudication is what judges do.
Questions about adjudication
(a) How do judges decide cases
• positive or descriptive question; what considerations do they rely on
(b) How should judges decide cases
• normative question; setting aside what they do
(c) Can law constrain adjudication
• does the law constraint what judges do;
• the general lay man view is that law constrain adjudication; some say the law doesn’t constrain or does little to
constrain
(d) To what extent, and how?
Judges as Umpire
- ‘Judges are like umpires. Umpires don’t make the rules; they apply them. It’s my job to call balls and strikes and not
to pitch or bat.’ (Roberts, C.J.)
• Analogy of judge as baseball umpire. The umpire judge analogy is absurd?
• Judges should just apply the law.
Judge as law maker
- Common Law
• Think about tort law ; Donoghue v Stevenson (general duty of care in tort of negligence, in the manufacturer of
product owed duty to ultimate user) This is judge-made law. If judges didn’t make the law, who did make it?
- Sometimes judges are honest about this law making. (extra-judicial speeches)
• ‘We do not believe in fairy-tales anymore’ (Lord Reid)
• ‘In the common law world there are unquestionably some areas in which judges necessarily make law.’ (Lord
Sumption)
- Brexit case regarding triggering of Article 50: a ‘hard case’
• Could government exercise via prerogative trigger Article 50. Need parliament?
• The executive has the power to conduct foreign affairs vs parliamentary sovereignty
• The courts decided that parliamentary sovereignty prevailed, need parliament to trigger Article 50.
• There is no statute to tell judges what to do ; constitutional law developed through case law
• It is political case, the judges driven by legal considerations
Judge as Law-Maker : Texts
- Judges also interpret authoritative texts laid down by statute / constitution
- Not judge-made law in the same sense ; the law is made by the legislature
- Yet judges seem to have latitude/power
- e.g.
• Human Rights Act (incorporates European Convention of Human Rights ; Article 8 have right to respect for
private and family life ; this could mean a lot of things, the judge decide what these provisions mean?)
• U.S. Constitution (right to abortion is an interoperation of the US constitution decided by judges by Rode v Wade)
• Consumer Rights Act (some contracts are unenforceable where it is contrary to requirement of good faith ; up to
judge to decide what is and is not contrary to good faith)
Connection with Law and Morality Topic
- Law-adjudication relationship depends on one’s account of law (LT Part 1)
- Legal positivists tend to embrace ‘partial constraint’
- Positivism’s critics (especially Dworkin) claim its account of adjudication is faulty.
• Dworkin Hart’s postscript ; Dworkin comes with imaginary case of Mrs Sorenson (criticism for Hart’s positivism)
- Natural law and adjudication
• Dworkin in not natural lawyer, but share some views of natural law.
• Finnis criticise Dworkin’s view of adjudication
Connection with Legality topic
- Adjudication → Rule of Law?
• Is the ideal of law-bound official action even possible?
• Official action can be constrained by previously laid down rules ; may conclude that RoL isn’t really possible
- Rule of Law → adjudication?
• Should judges make (or even violate) the law?
• Official action must be congruent with the law previously laid down ; judges must be bound by law and follow the
law.
Page 2 of 59
,• Critical view of RoL and what they say about adjudication
- Robert Cover : judges ought to conceive adjudication is a different way to do the right thing
Page 3 of 59
, (A) Radical Scepticism (Singer)
On this view, law is pervasively indeterminate. Law is not capable of constraining judicial decision.
Radical Skepticism — Background
- Radical scepticism: law generally does not constrain judicial decision
• Judges’ hands are not bound ; they can do whatever they want
- Law is pervasively indeterminate
• This idea is associated with a group of thinkers known as the American Legal Realists (whose heyday was the
1920s and 1930s) and was intensified by the Critical Legal Studies (CLS) movement (1970s and 1980s).
• The aim of the CLS account of adjudication is to discredit orthodox views about law so as to clear the way for
leftist political projects.
• The group of American law professors and judges were highly critical of what judges do; some of these legal
realists stressed that law is indeterminate (does not provide determinate answers in particular cases)
• If law is not telling what judges what to do, what tells them what to do? Judge hunches about fairness, judicial
psychology? ‘depends on what the judge had for breakfast’
- Divergence between stated reasons and real reasons for judicial decisions
• Judges give reason for cases; but legal realists say that real reason lies elsewhere
- Claim deepened (exaggerated?) by Critical Legal Studies movement (1970s / 1980s)
• Movement when US moved to the right; and legal scholars wanted to pull back to left
• Focused attention on what judges do
• Their view was not just a philosophical view about judicial action but giving a political claim; judges are on the
left on politics ; and want to move judicial action towards left ; the obstacle to the movement is the existing law
and legal practice
- CLS: an avowedly leftist movement
- Internal critique of adjudication to clear the way for egalitarian change
• Judges decisions do not make sense (internal critique) show that adjudication doesnt make sense in the current
form; and move towards egalitarian change.
- Attempt to delegitimize ‘liberal’ law
• Great critiques of liberal law; liberal means being left ; liberal means conservative ; not into individual rights
model
Singer
- Singer is a member of critical studies movement.
• He seeks to show that law is inevitably self-contradictory, ambiguous, vague, full of gaps and are subject to being
changed ad hoc by judicial decisions.
- he doest say that law doesn’t provide any constraints on judicial action; doesnt say that it is full indeterminate
- It is possible to have determinate law ; but nobody wants this, any attempt to do what people might consider
justice is going to be indeterminate.
• Why is law indeterminate? He identified sources of indeterminacy in law
(i) Incompleteness : law is incomplete, this happens all the time in new cases, all different someway from
each other ; cases are of first impression
(ii) Contradiction : law contains ideas that contradict each other ; in contract law there is principle of freedom
of contract, the power to decide whether to enter into contract and what terms , at the same time, weaker
parties shouldn’t be exploited
(iii) Abstraction : take judgment to apply ; duty of care in negligence ; reasonable person standard ; this is
abstract ; need judgment as to how the abstract idea applies to a particular case
(iv) Judicial power to revise law : in common law ; to bring it up to date with society changes and new
conditions ; there is no such thing as rape between husband and wife ; but courts decided that martial rape
is still rape ; judges have power to overrule previous decisions ;
INTERNAL CRITIQUE
Singer, who is a member of the Critical Legal Studies movement, takes the radical skeptic view that the law is
pervasively indeterminate because it does not fully constrain our choices. Law is indeterminate because it is
incomplete, self-contradictory, ambiguous, full of gaps and are subject to the judicial power of revision.
Page 4 of 59
