LL305
Adjudication Revision Notes:
Main Different views:
points/facts: Montesquieu: The judges of the nation and nothing but the
mouth that pronounces the law – inanimate beings
CJ Roberts: ‘Judges are like umpires. Umpires don’t make the
rules; they apply them’
Judge as law-maker?
- Eg common law – Donoghue v Stevenson, judiciary laid down
‘neighbourhood principle’
- Lord Sumption ‘In the common law world there are
unquestionably some areas in which judges necessarily make
law’
Interpretation:
Judges also interpret authoritative texts
Not judge-made law as in the case of ‘filling in gaps’ but it does
seem to give judges latitude and power eg HRA has to be
‘interpreted’ to be compatible with Article of ECHR so judge
would have to exercise discretion
Radical Scepticism:
Law generally does not constrain judicial decision;
Not that they’re gaps in the law, it is a much broader claim that
the law is pervasively indeterminate (more often than not the
case that the law fails to determine the outcome of a specific
case)
The claim is associated with American Legal Realism; disagreed
with formalism and said other forces dictate the outcome of a
case eg political ideology to which a judge subscribes,
background of the judge, character of a judge
‘How a judge will decide depends on what they have had for
breakfast’
Law is not capable of constraining judicial decision: legal
reasons are not sufficient to determine a particular outcome
Claim is deepened by Critical Legal Studies movement (adds a
normative goal to the realists descriptive one)
- An avowedly leftist movement – law is independent from
economic structure, so it could be a site of political struggle
- They agree that the law is indeterminate but don’t want to
stop here’ they wanted judges to become aware of this fact,
embrace their powers and making way for egalitarian
change
- Judges should openly exert discretionary powers and in
doing so, delegitimise ‘liberal’ ideal of law and adjudication
and namely, rule of law
Singer was part of this movement writing about indeterminacy:
- Cannot possible constrain adjudication as law is incomplete,
contradictions, abstract, judicial power to revise/interpret
, law
Adjudication is predictable; possible to predict outcome of case,
but this prediction is not based on law, but on psycho-social
factors such as ideology, culture, custom
CLS response:
- Abandon rule of law as an ideal for adjudication
- A myth that does not reflect current regime, or worse, an
ideology that impedes egalitarian change
- Thompson says rule of law is an unqualified human good
whereas Horwitz says that rule of law and legality impedes
benevolent exercise of power (stops judges using law for
egalitarian purposes, by telling judges to exercise self-
restraint) (MARXISTS)
Partial Constraint: (HART)
Law does create constraint of judicial decisions but it is only
partial
Response that tends to be adopted by legal positivist, toward
radical scepticism
Law is largely determinate, but becomes indeterminate at the
margins and then, judges must make law
Hart’s twin aim:
- To respond to most extreme version of American Legal
Realism (as they underestimate run-of-the-mill determinacy)
- To also avoid misunderstanding that legal positivism entails
‘formalism’ – adjudication is not just a matter of applying
syllogism
Harts account of law:
- Laws content depends on social fact, not its merits
- Law is a union of primary and secondary rules
- Rule of recognition: Cures uncertainty by identifying criteria
for validity of other rules (eg legislative enactment,
customary practice, precedents)
- Adjudication:
- Rules of adjudication cure inefficiency
- They empower individuals (judges) to make authoritative
determinations in particular cases – ie they make decisions
that, according to rule of recognition, are valid law = injects
certainty into system
- ‘The life of law consists to a very large extent, in the
guidance both of officials and private individuals by
determinate rules which, unlike the applications of variable
standards, do not require a fresh judgment from case to
case’
- Hart try to relate determinacy and indeterminacy of law, to
that of language
- ‘Plain cases’ exist – general agreement in judgments as to
, the applicability of classifying terms, but sometimes such
agreements (language conventions) run out eg what
constitutes vehicle in ‘keep vehicles out’ sign?
- Natural languages like English have an ‘open texture’ – even
precise terms can become vague when they confront the
unexpected
- Indeterminacy arises when language conventions run out
- Hart’s metaphor:
- Light source and an object produces and umbra (clear
shadow), penumbra (not light but not dark)
- Language and rules have a core meaning and an area which
is not so clear
- Need to exercise judgment in the penumbra
- We shouldn’t WANT fully determine laws because of two
human limitations:
(i) Relative ignorance of fact – we cannot predict which
possible facts will occur and therefore having vague
norms is beneficial as we can encompass unpredictable
facts within such norms
(ii) Relative indeterminacy of aim – precisely because we
cannot predict facts of future, we cannot fix at time of
creating a norm, the aim for which we create the norm
(THINK: when creating rule of ‘no vehicles in park, we
might be concerned with pollution but in future if
means of transport is included that doesn’t pollute, we
can transport the norm to different aims) instrumental
to other new goals
- Let officials decide at point of application, relying on moral
reasoning
Raz’s point of view: (similar to Hart but says law-making can
also happen where law is determinate)
- Judges have a variety of law-making powers
- Distinguishes between regulated v unregulated cases
(indeterminate) – judicial law-making can happen in both
- Regulated cases: sources provide a correct legal answer
- Unregulated: gap in law, sources do not provide a correct
legal answer
- Judges have law-making powers in both kinds of case: In
unregulated judges make law by filling gaps, in regulated
judges can make law by simply changing it
- Regulated cases entail 2 kinds of law making:
(i) distinguishing previous decisions, the judge here is
not necessarily rejecting previous norm, but adding a
further condition to it to show that the norm cannot
possible apply to case at hand
Adjudication Revision Notes:
Main Different views:
points/facts: Montesquieu: The judges of the nation and nothing but the
mouth that pronounces the law – inanimate beings
CJ Roberts: ‘Judges are like umpires. Umpires don’t make the
rules; they apply them’
Judge as law-maker?
- Eg common law – Donoghue v Stevenson, judiciary laid down
‘neighbourhood principle’
- Lord Sumption ‘In the common law world there are
unquestionably some areas in which judges necessarily make
law’
Interpretation:
Judges also interpret authoritative texts
Not judge-made law as in the case of ‘filling in gaps’ but it does
seem to give judges latitude and power eg HRA has to be
‘interpreted’ to be compatible with Article of ECHR so judge
would have to exercise discretion
Radical Scepticism:
Law generally does not constrain judicial decision;
Not that they’re gaps in the law, it is a much broader claim that
the law is pervasively indeterminate (more often than not the
case that the law fails to determine the outcome of a specific
case)
The claim is associated with American Legal Realism; disagreed
with formalism and said other forces dictate the outcome of a
case eg political ideology to which a judge subscribes,
background of the judge, character of a judge
‘How a judge will decide depends on what they have had for
breakfast’
Law is not capable of constraining judicial decision: legal
reasons are not sufficient to determine a particular outcome
Claim is deepened by Critical Legal Studies movement (adds a
normative goal to the realists descriptive one)
- An avowedly leftist movement – law is independent from
economic structure, so it could be a site of political struggle
- They agree that the law is indeterminate but don’t want to
stop here’ they wanted judges to become aware of this fact,
embrace their powers and making way for egalitarian
change
- Judges should openly exert discretionary powers and in
doing so, delegitimise ‘liberal’ ideal of law and adjudication
and namely, rule of law
Singer was part of this movement writing about indeterminacy:
- Cannot possible constrain adjudication as law is incomplete,
contradictions, abstract, judicial power to revise/interpret
, law
Adjudication is predictable; possible to predict outcome of case,
but this prediction is not based on law, but on psycho-social
factors such as ideology, culture, custom
CLS response:
- Abandon rule of law as an ideal for adjudication
- A myth that does not reflect current regime, or worse, an
ideology that impedes egalitarian change
- Thompson says rule of law is an unqualified human good
whereas Horwitz says that rule of law and legality impedes
benevolent exercise of power (stops judges using law for
egalitarian purposes, by telling judges to exercise self-
restraint) (MARXISTS)
Partial Constraint: (HART)
Law does create constraint of judicial decisions but it is only
partial
Response that tends to be adopted by legal positivist, toward
radical scepticism
Law is largely determinate, but becomes indeterminate at the
margins and then, judges must make law
Hart’s twin aim:
- To respond to most extreme version of American Legal
Realism (as they underestimate run-of-the-mill determinacy)
- To also avoid misunderstanding that legal positivism entails
‘formalism’ – adjudication is not just a matter of applying
syllogism
Harts account of law:
- Laws content depends on social fact, not its merits
- Law is a union of primary and secondary rules
- Rule of recognition: Cures uncertainty by identifying criteria
for validity of other rules (eg legislative enactment,
customary practice, precedents)
- Adjudication:
- Rules of adjudication cure inefficiency
- They empower individuals (judges) to make authoritative
determinations in particular cases – ie they make decisions
that, according to rule of recognition, are valid law = injects
certainty into system
- ‘The life of law consists to a very large extent, in the
guidance both of officials and private individuals by
determinate rules which, unlike the applications of variable
standards, do not require a fresh judgment from case to
case’
- Hart try to relate determinacy and indeterminacy of law, to
that of language
- ‘Plain cases’ exist – general agreement in judgments as to
, the applicability of classifying terms, but sometimes such
agreements (language conventions) run out eg what
constitutes vehicle in ‘keep vehicles out’ sign?
- Natural languages like English have an ‘open texture’ – even
precise terms can become vague when they confront the
unexpected
- Indeterminacy arises when language conventions run out
- Hart’s metaphor:
- Light source and an object produces and umbra (clear
shadow), penumbra (not light but not dark)
- Language and rules have a core meaning and an area which
is not so clear
- Need to exercise judgment in the penumbra
- We shouldn’t WANT fully determine laws because of two
human limitations:
(i) Relative ignorance of fact – we cannot predict which
possible facts will occur and therefore having vague
norms is beneficial as we can encompass unpredictable
facts within such norms
(ii) Relative indeterminacy of aim – precisely because we
cannot predict facts of future, we cannot fix at time of
creating a norm, the aim for which we create the norm
(THINK: when creating rule of ‘no vehicles in park, we
might be concerned with pollution but in future if
means of transport is included that doesn’t pollute, we
can transport the norm to different aims) instrumental
to other new goals
- Let officials decide at point of application, relying on moral
reasoning
Raz’s point of view: (similar to Hart but says law-making can
also happen where law is determinate)
- Judges have a variety of law-making powers
- Distinguishes between regulated v unregulated cases
(indeterminate) – judicial law-making can happen in both
- Regulated cases: sources provide a correct legal answer
- Unregulated: gap in law, sources do not provide a correct
legal answer
- Judges have law-making powers in both kinds of case: In
unregulated judges make law by filling gaps, in regulated
judges can make law by simply changing it
- Regulated cases entail 2 kinds of law making:
(i) distinguishing previous decisions, the judge here is
not necessarily rejecting previous norm, but adding a
further condition to it to show that the norm cannot
possible apply to case at hand
