UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

Understanding judicial reasoning : a conception and rationale for law-related education Case, Roland 1989

Your browser doesn't seem to have a PDF viewer, please download the PDF to view this item.

Item Metadata

Download

Media
831-UBC_1990_A1 C37.pdf [ 18.05MB ]
Metadata
JSON: 831-1.0055153.json
JSON-LD: 831-1.0055153-ld.json
RDF/XML (Pretty): 831-1.0055153-rdf.xml
RDF/JSON: 831-1.0055153-rdf.json
Turtle: 831-1.0055153-turtle.txt
N-Triples: 831-1.0055153-rdf-ntriples.txt
Original Record: 831-1.0055153-source.json
Full Text
831-1.0055153-fulltext.txt
Citation
831-1.0055153.ris

Full Text

UNDERSTANDING JUDICIAL REASONING: CONCEPTION AND RATIONALE FOR LAW-RELATED EDUCATION by ROLAND CASE B.Comm., Concordia U n i v e r s i t y , 1974 M.A., The U n i v e r s i t y o f B r i t i s h Columbia, 1982 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY i n THE FACULTY OF GRADUATE STUDIES S o c i a l and E d u c a t i o n a l S t u d i e s We accept the t h e s i s as conforming t o the r e q u i r e d standard THE UNIVERSITY OF BRITISH COLUMBIA October 1989 (c) Roland Case, 1989 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia Vancouver, Canada Date DE-6 (2/88) Abstract The topic of judicial reasoning has been largely excluded from high school law and social studies curricula despite widespread ignorance and misunderstanding among Canadians of the reasoning judges are expected to employ in applying the law. The two biggest obstacles to i t s inclusion are: (1) insufficient appreciation among educators of the importance of public understanding of judicial reasoning, and (2) a lack of consensus about the nature of judicial reasoning. Accordingly, the major thrusts of this dissertation are to justify why jud i c i a l reasoning ought to be part of basic c i v i c education and to articulate a defensible conception of judicial reasoning for educators' use in law-related and public legal education programs. Defensible c r i t e r i a for theorizing about judi c i a l reasoning are explained and ju s t i f i e d by considering different types of theorizing about social practices. Three basic types of theories are identified - formal, causal and ethical theories. It is suggested that the relevant type of theory of judi c i a l reasoning, what I c a l l a formal theory, involves explication of what informed practitioners would accept as the standards operating within their system. This account of theorizing about social practices is defended against objections implied by a r i v a l account of theorizing presented by Dworkin. Dworkin's explication is rejected on the grounds that i t conflates a i i i d i s t i n c t i o n between t h e o r i e s t h a t f a i t h f u l l y r e p r e s e n t the standards o f proper j u d i c i a l p r a c t i c e and t h e o r i e s whose account of j u d i c i a l standards i s c o n t r o l l e d by i n s t r u m e n t a l purposes. B u i l d i n g on Hart's c o n c e p t i o n o f law as a union o f primary and secondary r u l e s , an account o f j u d i c i a l r e a s o n i n g i s developed i n terms of t h r e e types o f second-order r u l e s . These r u l e s o f a p p l i c a t i o n , which e s t a b l i s h standards f o r a p p l y i n g the law i n p a r t i c u l a r cases, i n c l u d e r u l e s f o r de t e r m i n i n g the l e g a l v a l i d i t y o f arguments f o r a d e c i s i o n , f o r s e t t i n g the r e l a t i v e weight of l e g a l arguments, and f o r v e r i f y i n g the c o n c l u s i o n s a t t r i b u t e d t o a l e g a l argument. Rules o f a p p l i c a t i o n are or g a n i z e d i n t o t h r e e dominant modes or forms of r e a s o n i n g : (1) rea s o n i n g from i n t e r p r e t i v e g u i d e l i n e s , which r e f e r s t o a c o n s t e l l a t i o n of second-order r u l e s t h a t govern a p p l i c a t i o n of law by deter m i n i n g a law's meaning; (2) r e a s o n i n g from p r i o r cases, which d e a l s with r u l e s governing a p p l i c a t i o n o f law i n l i g h t o f p r e v i o u s j u d i c i a l d e c i s i o n s ; and (3) r e a s o n i n g from p r i n c i p l e , which i n v o l v e s r u l e s f o r a s s e s s i n g the i m p l i c a t i o n s of p o t e n t i a l j u d i c i a l d e c i s i o n s i n l i g h t of o t h e r l e g a l standards. S p e c i f i c j u d i c i a l d e c i s i o n s and g e n e r a l j u d i c i a l p r a c t i c e s are e x p l i c a t e d i n terms of these modes of re a s o n i n g . T h i s account of j u d i c i a l r e a s o n i n g i s defended a g a i n s t a number of o b j e c t i o n s , i n c l u d i n g c h a l l e n g e s posed by the p r i n c i p a l r i v a l c o n c e p t i o n of re a s o n i n g about the law - an account o f j u d i c i a l r e a s o n i n g o f f e r e d by Dworkin. i v Teaching high school students about the modes of j u d i c i a l reasoning i s j u s t i f i e d because greater public understanding of j u d i c i a l reasoning i s required to combat widespread, p o t e n t i a l l y damaging, misperceptions of j u d i c i a l p r a c tices. The key elements comprising an adequate lay understanding of j u d i c i a l reasoning are outlined. V Table of Contents Abstract i i Table of Contents v Acknowledgements v i i Chapter One: Introduction 1 1. The importance of the topic 2 2. The need for a defensible conception 12 3. Key contextual issues 17 4. Overview of the thesis 23 Chapter Two: Theorizing about J u d i c i a l Reasoning 27 1. Three kinds of theorizing 29 2. Conflation of theories 38 Chapter Three: A Rival Account of Legal Theorizing 54 1. Dworkin's account of legal theory b u i l d i n g 55 2. Inadequacies i n Dworkin's account 66 Chapter Four: A Rule-Guided Theory of J u d i c i a l Reasoning .93 1. Hart and j u d i c i a l reasoning 95 2. The basic elements of a rule-guided model I l l 3. Secondary rules of application 119 4. Controversy and rules of application 132 Excursus to chapter four - Riggs v. Palmer 153 Chapter Five: Reasoning from Interpretive Guidelines ....166 1. Interpreting law 166 2. Rules of i n t e r p r e t a t i o n 177 3. Objections to rule-guided interpretation 185 Chapter Six: Reasoning from Prior Cases 198 1. Interpretive guidelines and precedent 199 2. Es t a b l i s h i n g the r a t i o 202 3. Analogies and d i s c r e t i o n 221 4. Reasoning from p r i o r cases as law-making 237 Chapter Seven: Reasoning from P r i n c i p l e 246 1. The nature of p r i n c i p l e d reasoning 247 2. Considerations i n reasoning from p r i n c i p l e 254 3. Identifying bona f i d e l e g a l standards 266 Excursus to chapter seven - Davis v. Johnson 272 v i Chapter Eight: Dworkin's Challenge to a Model of Rules ..284 1. Rules and l e g a l disputes 284 2. Dworkin's r i v a l explanation 300 3. Dworkin's account of Rigqs and Brown 315 Chapter Nine: Understanding J u d i c i a l Reasoning 326 1. Potential for confusion 329 2. The r o l e of informed debate 335 3. Key elements of educational programs 337 Bibliography 344 v i i Acknowledgements I owe a great debt, accumulated over a number of years, to four people whose support kept me going and whose d i r e c t i o n kept me on track: Roi Daniels, my supervisor, Charles Brauner and J e r r o l d Coombs, and Susan Duncan, my wife. A sp e c i a l note of thanks i s offered to Joseph Smith, whose j u r i s p r u d e n t i a l writings heightened my in t e r e s t i n the subject, and to J e r r o l d Coombs, whose conception of the modes of j u d i c i a l reasoning launched t h i s inquiry. 1 Chapter One: I n t r o d u c t i o n The purpose o f t h i s study i s t o i n c r e a s e h i g h s c h o o l s t u d e n t s ' understanding o f the re a s o n i n g judges are expected t o employ i n a p p l y i n g the law. The t o p i c o f j u d i c i a l r e a s o n i n g has been l a r g e l y excluded from h i g h s c h o o l law and s o c i a l s t u d i e s c u r r i c u l a . 1 Even groups f o c u s s i n g on l a w - r e l a t e d education2 have not recommended t h a t j u d i c i a l r e a s o n i n g be addressed i n p u b l i c schools.3 F u r t h e r , d e s p i t e widespread ignorance about and misunderstanding o f j u d i c i a l r e a s o n i n g among Canadians, t h i s t o p i c has r e c e i v e d l i t t l e a t t e n t i o n i n p u b l i c l e g a l e d u c a t i o n programs.4 While t h e r e may be others,5 the two s t r o n g e s t and 1 A review o f s e n i o r law and s o c i a l s t u d i e s courses o u t l i n e d i n Canadian h i g h s c h o o l c u r r i c u l u m guides r e v e a l s no mention of l e g a l / j u d i c i a l r easoning, although the c o u r t system i s o f t e n mentioned (Case, 1988, pp. 15-17). 2 Law-related e d u c a t i o n (LRE), a l s o c a l l e d law-focussed e d u c a t i o n o r law s t u d i e s , r e f e r s t o the t e a c h i n g about law and l e g a l i s s u e s i n elementary, secondary and post-secondary e d u c a t i o n a l f a c i l i t i e s where the primary i n t e n t i o n i s not t o t r a i n l e g a l p r o f e s s i o n a l s . 3 In a review o f r e p r e s e n t a t i v e American and Canadian law-r e l a t e d e d u c a t i o n groups, o n l y the Law-Related E d u c a t i o n P r o j e c t a t the U n i v e r s i t y of B r i t i s h Columbia, o f which the author i s a member, recommended understanding of l e g a l r e a s o n i n g as a go a l of LRE (Case, 1985, pp. 116-128). 4 P u b l i c l e g a l e d u c a t i o n (PLE) r e f e r s t o non-formal e d u c a t i o n a l programs which, t y p i c a l l y , p r o v i d e s u b s t a n t i v e i n f o r m a t i o n about p a r t i c u l a r laws and l e g a l procedures, and which are d i r e c t e d t o the l a y p u b l i c . 5 Some educators may be dissuaded by the complexity o f the e n t e r p r i s e , b e l i e v i n g , perhaps, t h a t l e g a l arguments put f o r t h i n j u d i c i a l o p i n i o n s are beyond the ken of u n t r a i n e d p r o f e s s i o n a l s . There are no good reasons t o doubt t h a t students are capable of and i n t e r e s t e d i n l e a r n i n g about c o u r t d e c i s i o n s and j u d i c i a l 2 most pl a u s i b l e explanations of why j u d i c i a l reasoning i s not taught i n high school law and s o c i a l studies courses are: (1) i n s u f f i c i e n t appreciation of the importance of public understanding of j u d i c i a l reasoning, and (2) a lack of consensus about the nature of j u d i c i a l reasoning. Accordingly, the major thrusts of t h i s thesis are to show why j u d i c i a l reasoning ought to be part of basic c i v i c education and to provide a defensible conception of j u d i c i a l reasoning for educators to use i n law-relat e d and public l e g a l education. 1. The importance of the topic A major obstacle to inclu s i o n of j u d i c i a l reasoning i n law-related and s o c i a l studies programs i s educators' lack of appreciation for the importance of public understanding of j u d i c i a l reasoning. J u d i c i a l reasoning i s t y p i c a l l y viewed as a narrow f i e l d which one need understand only i f arguing cases before the courts. Since t h i s task i s seen as the exclusive purview of lawyers and judges, there i s perceived to be l i t t l e need for lay understanding of j u d i c i a l reasoning. In other words, an understanding of j u d i c i a l reasoning does not appear to be a necessary goal for c i v i c or c i t i z e n s h i p education. I contend that t h i s conclusion i s unwarranted. Despite i t s e s o t e r i c and recondite trappings, j u d i c i a l reasoning warrants reasoning. While I do not have "hard" evidence, I know from personal experience and first-hand reports that high school students are s u r p r i s i n g l y adept at understanding j u d i c i a l opinions and are excited when given the opportunity to do so. 3 serious consideration by a l l who are involved i n education for an informed, r e f l e c t i v e c i t i z e n r y . I t would not be controversial to suggest that c i v i c educators should foster i n students an understanding of and c r i t i c a l appreciations for the laws, the basic structure and functioning of our l e g a l system, and the fundamental values upon which our laws and l e g a l system rest. The t y p i c a l r a t i o n a l e for these goals i s the mutual advantage accruing to both c i t i z e n and society when persons appreciate the requirements of and j u s t i f i c a t i o n for important s o c i a l i n s t i t u t i o n s . 7 However, a general presumption that c i v i c education should include course work on the workings of the major branches of the l e g a l system does not go very far to j u s t i f y teaching about j u d i c i a l reasoning. Perhaps t h i s presumption explains why s o c i a l studies teachers discuss the hierarchy of the courts, the j u d i c i a l appointment procedure, and the stages i n c i v i l and criminal suits.8 I t does not obviously j u s t i f y why c i t i z e n s need a developed appreciation for the forms and standards of reasoning r e l i e d upon by judges. This more ambitious j u s t i f i c a t i o n stems from the f a c t that the j u d i c i a r y i s the A c h i l l e s of our l e g a l system. 6 See Case (1985, pp. 21-26) for a discussion of constraints on the r i g h t s of educators to promote unqualified respect for the l e g a l system. 7 I am assuming that the educational and s o c i a l merits of a c i v i c education, defensibly conceived, are generally recognized. A r a t i o n a l e for the law-related dimensions of c i v i c education i s presented i n Case (1985, pp. 27-36) . 8 These are the topics dealt with i n the B r i t i s h Columbia Social Studies 11 curriculum, for example. 4 Paradoxically, the courts are an incr e d i b l y i n f l u e n t i a l and yet vulnerable i n s t i t u t i o n . When judges apply the law they are not involved i n a mechanical procedure; they have the power to shape our constitutions and our common law i n ways unavailable to elected l e g i s l a t o r s . I t has been suggested that: "No department of state i s more important than our courts, and none i s so thoroughly misunderstood by the governed" (Dworkin, 1986, p. 11). On the other hand, a v i g i l a n t public possessing some appreciation of j u d i c i a l reasoning plays a v i t a l r o le i n safeguarding the proper workings of the judicature. The j u d i c i a r y i s vulnerable: i t s i n t e g r i t y can be compromised by p o l i t i c a l interference, and the legitimacy of i t s rulings, p a r t i c u l a r l y i n controversial c o n s t i t u t i o n a l cases, can be undermined by public m y s t i f i c a t i o n and cynicism. The public's capacity for informed debate about issues of j u d i c i a l adjudication has s i g n i f i c a n t implications for the continued proper functioning of the j u d i c i a r y . 1.1 The court's influence While i t i s a commonplace that laws regulate nearly every reach of our l i v e s , the magnitude of the courts' r o l e i n giving texture and substance to the law i s a more recent revelation. The court's power to apply the law, e s p e c i a l l y general c o n s t i t u t i o n a l provisions, makes i t an exceedingly i n f l u e n t i a l agency. I t has been said, for example, that "the Constitution i s what the judges say i t is."9 While t h i s remark i s p o t e n t i a l l y 9 Attributed to former U.S. Chief J u s t i c e Evans Hughes (Fulford, 1986, p. 7 ) . The famous English c o n s t i t u t i o n a l authority, A.V. 5 misleading, i t i s c e r t a i n l y true that a l l r i g h t s protected by the con s t i t u t i o n are not expressly set out i n the document. There i s , for example, no e x p l i c i t statement i n eithe r the United States or Canadian co n s t i t u t i o n giving women ri g h t s to abortion; yet the Supreme Court i n each country has invalidated statutes c u r t a i l i n g access to abortion.10 Decisions such as these occur frequently, and t h e i r ramifications are often profound. As Jus t i c e O l i v e r Wendell Holmes remarked "the whole power of the state w i l l be put forth, i f necessary, to carry out t h e i r judgments" (Holmes, 1966, p. 176). Americans began to appreciate t h i s power i n the 1950s, with the controversial decisions about school segregation.il Laurence Tribe, a prominent American c o n s t i t u t i o n a l expert, offered the following observation about the breadth of the Supreme Court's influence: the most basic ingredients of our day-to-day l i v e s are s i f t e d and measured out by the Supreme Court. When parents send t h e i r children to parochial schools, when men and women buy contraceptives, when workers organize a union, when friends share t h e i r intimate secrets i n a telephone conversation without fear that others are l i s t e n i n g , they enjoy r i g h t s and opportunities that would not e x i s t i f the Supreme Court had not secured them for us.12 Dicey, offered a less ambiguous account: "Parliament i s supreme l e g i s l a t o r , but from the moment Parliament has uttered i t s w i l l as law giver, that w i l l becomes subject to the inter p r e t a t i o n put upon i t by the judges" (Bradley, 1985, p. 27). 10 Roe v. Wade [1973] 410 U.S. 113; Moraentaler v. The  Queen [1988] 1 S.C.R. 30. 11 Brown v.. Board of Education [1954] 347 U.S.S.C. 483. 12 Cited i n Hutchinson (1987, p. 358). Hutchinson believes the popular view about c o n s t i t u t i o n a l decisions, that they have great impact on our l i v e s , i s exaggerated. He suggests that the U.S. abortion and school segregation decisions, touted as celebrated instances of co n s t i t u t i o n a l s o c i a l reform, changed very l i t t l e . Ultimately, his arguments f a i l because his yardsticks for measuring impact are narrow. For example, Hutchinson would have us believe that the Roe decision had no impact because the t o t a l number of abortions were not altered s i g n i f i c a n t l y ; the only 6 With promulgation of the Charter of Rights and Freedoms in 1982, Canadians are becoming increasingly aware of the courts' power: the judicial branch w i l l be the most important forum for the systematic application of Charter standards. Judicial opinions w i l l be authoritative on the specific meanings to be given the Charter's general principles. (Russell, 1983, P- 47) The public press (Bindman, 1986; Makin, 1987) and the professional literature (Russell, 1982; Morton & Withey, 1986) have documented the dramatically increased jud i c i a l powers resulting from promolugation of the Charter. In contrast with the courts' limited authority under the Canadian B i l l of Rights to override federal legislation that interferred with basic rights and freedoms, since 1982 the courts have repeatedly used the Charter to strike down offending legislation and public agency practices. This significantly enhanced authority to review government decisions profoundly changes the balance of power in Canadian law - the courts now possess wide-ranging powers to override the decisions of elected and non-elected government institutions and o f f i c i a l s . Since the courts have in some respects become a superior body to the legislatures, i t is change was in the percentage of abortions that were legal (p. 372). I doubt that Hutchinson's assessment i s shared by the millions of American women who have avoided the additional trauma, humiliation, and financial costs of i l l e g a l abortions; by the doctors who are currently practicing only because they were not barred for performing i l l e g a l abortions; or by the countless women who are alive or unimpaired because of access to the significantly safer procedures provided by legal abortion f a c i l i t i e s . 7 now more important than ever before that the public understand the nature and exercise of the court's powers. Growing public recognition of j u d i c i a l powers has often f u e l l e d an incorrect and pernicious impression that judges have unbridled d i s c r e t i o n . Many characterize the "activism" of American rulings on the con s t i t u t i o n as a form of " j u d i c i a l imperialism" and suggest that the Charter has made Canadians vulnerable to the r i s k of "government by j u d i c i a r y " (Russell, 1983, p. 52). As another c r i t i c put i t , the Charter created "a whole new class of poten t i a l d i c t a t o r s " (Fulford, 1986, p. 9). While we w i l l return to the issue of j u d i c i a l abuse of authority, i t i s important to recognize a popular misperception about j u d i c i a l d i s c r e t i o n . The fact that resolution of c o n s t i t u t i o n a l disputes often requires the exercise of judgment i n balancing complex issues - i n other words, decisions are not straightforward and may be controversial - causes many to conclude that j u d i c i a l decision making i s a r b i t r a r y and without standards. Certainly, judges w i l l be influenced, consciously or unconsciously, by d i f f e r i n g perceptions of t h e i r r o l e , by s o c i a l factors and by personal values. Like a l l human i n s t i t u t i o n s , the j u d i c i a r y i s prone to error and prejudice - a biased or mistaken decision, unless overruled i n some way, w i l l carry with i t the f u l l force of law. However, j u d i c i a l decision making, properly conducted, requires that judges conform to prescribed modes of reasoning. When they do otherwise they exceed t h e i r legitimate j u d i c i a l authority. 8 I t i s important that c i t i z e n s understand the court's intended r o l e and proper functioning. Acquiring t h i s understanding and, i n p a r t i c u l a r , understanding that applying the law i s neither mechanical nor (largely) discretionary,13 requires some f a m i l i a r i t y with the canons and standards for good j u d i c i a l reasoning. Not only i s t h i s important because of the magnitude of the court's impact on our l i v e s , but also, as we w i l l now see, because lack of public respect has profound implications for the court's proper functioning. 1.2 The court's v u l n e r a b i l i t y The power of j u d i c i a l review gives courts the authority to i n v a l i d a t e laws that exceed a l e g i s l a t u r e ' s j u r i s d i c t i o n or that f a i l to respect fundamental r i g h t s . While t h i s balance of power i s a necessary feature of a c o n s t i t u t i o n a l democracy, i t creates an "adversarial r e l a t i o n s h i p " between the j u d i c i a r y and the l e g i s l a t u r e (Morton, 1984, p. 8). There i s a danger, as i n any power-sharing relationship, that one side w i l l attempt to dominate the other. While I have alluded to the p o t e n t i a l for the j u d i c i a r y to exceed i t s authority, I have not discussed i t s areas of v u l n e r a b i l i t y . Two prominent ways i n which governments can compromise the proper functioning of the j u d i c i a r y are by 13 Judges c l e a r l y are authorized to exercise some d i s c r e t i o n i n applying the law and i n deciding on appropriate remedies or punishments. They are not e n t i t l e d to exercise what Dworkin (1980, pp. 31-39) has referred to as "strong d i s c r e t i o n " - that i s , they may not decide a case on the basis of personal moral convictions or preferences. 9 e x p l o i t i n g t h e i r power to overrule court decisions and by e x p l o i t i n g t h e i r power to appoint judges. To some extent i n the United Statesl4 but to a f a r greater extent i n Canada, l e g i s l a t u r e s have authority to overrule j u d i c i a l decisions on the c o n s t i t u t i o n without following formal amendment procedures. The notwithstanding clause (Section 33) i n the Canadian Charter gives federal and p r o v i n c i a l governments considerable power to exclude l e g i s l a t i o n from Charter review. I t was i n i t i a l l y expected that exercise of t h i s power would normally a t t r a c t such p o l i t i c a l opposition that i t would only be invoked i n extreme situations (Hogg, 1982, p. 11). Legislators now appear s i g n i f i c a n t l y less reluctant to use t h i s power than was f i r s t thought. In the seven-year hi s t o r y of the Charter, the clause has already been invoked three times.15 If the public comes to perceive j u d i c i a l decisions as a r b i t r a r y f i a t s by non-elected o f f i c i a l s , then public pressure - the intended antidote to excessive use of the notwithstanding clause - may t r i g g e r invocation of the clause. Should t h i s power be exercised widely, the e f f e c t would be the destruction of the very notion of entrenched r i g h t s . Constitutions are intended to protect fundamental r i g h t s against the whims and i n s e n s i t i v i t i e s of the popular mood. I t would be gravely unjust i f public ignorance of j u d i c i a l decision making created a p o l i t i c a l climate that 14 The United States Congress has some power to overturn Supreme Court rulings on the Constitution and more extensive power to override decisions regarding federal statutes. 15 The notwithstanding clause has been invoked once by the province of Saskatchewan, and twice by the province of Quebec. 10 undermined the r i g h t s our Constitution and the courts were empowered to safeguard. Partisan appointment of judges by government o f f i c i a l s deals another p o t e n t i a l l y c r i p p l i n g blow to the proper functioning of the j u d i c i a r y . Perhaps the most famous near instance of t h i s form of tampering was President Roosevelt's threat i n 1937 to pack the Supreme Court with f i f t e e n judges to secure passage of h i s New Deal l e g i s l a t i o n (Hughes, 1981, p. 43). More recently, the nomination of Robert Bork as U.S. Supreme Court J u s t i c e was seen as a declaration of the Reagan Administration's intention to enforce i t s view of morality on law (Dworkin, 1984, p. 27). S i g n i f i c a n t l y , the Senate's somewhat su r p r i s i n g r e j e c t i o n of Bork's nomination was attributed l a r g e l y to widespread public support for j u d i c i a l integrity.16 While Canadian Supreme Court appointments have not been reduced to p o l i t i c a l tug-of-wars between the " r i g h t " and the " l e f t " as they have been i n the United States,17 there i s a hi s t o r y of p o l i t i c a l feuding between the "feds" and the provinces.18 The Charter may increase Canadian p o l i t i c i a n s ' 16 Dworkin (1987, pp. 36-39) surmises that: "the debate over Bork, l i k e the debate over Roosevelt's plan l e f t the public i n no doubt that the issue was one of c o n s t i t u t i o n a l p r i n c i p l e s , and no senator could have j u s t i f i e d h i s vote on any other grounds." 17 See, for example, Dworkin (1984; 1987). President Taft i s reported to have written that the most s i g n i f i c a n t domestic issue facing American electors i n the Harding-Cox p r e s i d e n t i a l race was whose Supreme Court appointments would be most desirable (Black, 1969, p. 41). Supreme Court appointments i n Canada have been influenced to some extent by candidates' p o l i t i c a l and r e l i g i o u s a f f i l i a t i o n s (Snell & Vaughan, 1985, pp. 82, 85, 129). 18 The federal government has repeatedly been accused of appointing judges with c e n t r i s t leanings (Snell & Vaughan, 1985, 11 i n c l i n a t i o n to seek out candidates with "appropriate" p o l i t i c a l and personal convictions (Bindman, 1986). While i t i s u n l i k e l y that Canadian p o l i t i c i a n s would denigrate j u d i c i a l i n t e g r i t y by openly promoting candidates with pre-judged perspectivesl9 on controversial l e g a l questions, i t i s a danger we should guard against. In many p o l i t i c a l c i r c l e s i n the United States there appears to be considerable expectation that judges w i l l promote the interests of t h e i r sponsors. For example, i n a Time a r t i c l e following a recent decision on the c o n s t i t u t i o n a l i t y of special prosecutors, i t was suggested that the U.S. Supreme Court was acting i n a " f r u s t r a t i n g l y independent" manner by f a i l i n g to do the "President's bidding" (Lacayo, 1988, p. 21). The decision was viewed as a "sweeping repudiation of the White House position. . . . So much the worse that the r u l i n g was written by Chief J u s t i c e William Rehnquist, the man Reagan had chosen for the court's top job." Time also reported that Administration o f f i c i a l s would regard as ungrateful Reagan-appointed judges who f a i l e d to support the President's p o s i t i o n . pp. 23, 33-34). Recently, the provinces have renewed t h e i r e f f o r t s to secure greater say i n the se l e c t i o n of Supreme Court j u s t i c e s . 19 Simply having a p a r t i c u l a r p o l i t i c a l a f f i l i a t i o n does not imply j u d i c i a l prejudice. In applauding the appointment of Anthony Kennedy over Robert Bork, Dworkin (1987, p. 42) notes that while both are "conservative," Bork was r i g h t l y rejected because h i s views on j u d i c i a l reasoning were inconsistent with acceptable practice. Although he disagrees with many of Kennedy's decisions, Dworkin admires his " i n t e l l e c t u a l d i s c i p l i n e " and "lawyerlike, p r i n c i p l e d approach to j u d i c i a l decision making." 12 Similar types of aspersions have been cast on the i n t e g r i t y of the Canadian j u d i c i a r y , prompting former Chief J u s t i c e Laskin to issue a s t i r r i n g r e b u t t a l : I have to be more sad than angry to read of an insinuation that we are "acting as spear c a r r i e r s for the federal prime minister" or to read of a statement at t r i b u t e d to a highly respected member of the academic community that "the provinces must have a role i n the appointment of members of the Supreme Court i n order to ensure that they have confidence that i t can f a i r l y represent the i n t e r e s t s of the p r o v i n c i a l governments as well as any federal government." . . . I owe no allegiance, as a judge, to any person or to any in t e r e s t s ; my duty, as I have already said, i s only to the law and to the impartial and expeditious administration of j u s t i c e under law. . . . Are there responsible persons i n our society who see the judges of our courts as spokesmen for s p e c i a l i n t e r e s t s , as representatives of some public or private authority or agency? Do they see us as partisan a r b i t r a t o r s rather than as independent judges? . . . I know of no better way to subvert our j u d i c i a l system, no better way to destroy i t than to give currency to the view that the j u d i c i a r y must be a representative agency. (1978, pp. 12 0-121) The point here, as e a r l i e r , i s that the j u d i c i a r y ' s a b i l i t y to f u l f i l l i t s v i t a l l y important, legitimate mandate i s e a s i l y endangered. An informed public i s a s i g n i f i c a n t safeguard against those who would circumvent due process by i n t e r f e r i n g with or overriding j u d i c i a l decisions. Ordinary c i t i z e n s must acquire some understanding of j u d i c i a l standards for applying the law i f they are to make competent judgments about the proper role and functioning of the j u d i c i a r y . 2. The need for a defensible conception A second impediment to the inclu s i o n of j u d i c i a l reasoning i n the schools' c u r r i c u l a i s confusion about i t s nature. There i s considerable uncertainty within the leg a l profession about the 13 l i m i t s and nature of j u d i c i a l decision making.20 Intense debates have arisen i n the ju r i s p r u d e n t i a l l i t e r a t u r e over issues such as the proper r o l e i n j u d i c i a l decision making of "extra-legal" standards, the breadth of j u d i c i a l authority to review l e g i s l a t i o n , and the v a l i d i t y of in t e r p r e t i v e approaches l i k e "framers' intention."21 I t i s l i k e l y that at l e a s t some, i f not considerable, uncertainty and confusion i s a r e s u l t of fundamental ambiguities i n the law. Since many conventions and rules guiding j u d i c i a l decision making have arisen through case law, i t i s to be expected that there w i l l be inconclusive and often c o n f l i c t i n g interpretations of what i s required of judges.22 Another factor i n the uncertainty i s misconceptions of the basic structure and l o g i c of j u d i c i a l reasoning.23 This apparent misperception of fundamental elements i s a primary focus of my e f f o r t to a r t i c u l a t e and defend a conception of Anglo-American j u d i c i a l reasoning.24 Obviously, the resolution of many 20 The recent spate of "grand theories" about the appropriate r o l e of the j u d i c i a r y within a c o n s t i t u t i o n a l democracy i s a case in point (Tushnet, 1988, p. 1). At least one l e g a l academic believes that the current state of a f f a i r s i s s u f f i c i e n t l y uncertain to warrant the claim that American jurisprudence i s in the midst of a major "paradigm s h i f t " (Richards, 1979, p. 1395). 21 The recent debate over the appointment of Robert Bork as United States Supreme Court j u s t i c e raised these issues. See, for example, Dworkin (1984; 1985; 1987). 22 I am not implying that these are necessarily the sole or major sources of ambiguity. I believe there are fundamental discrepancies that go beyond c o n f l i c t i n g interpretations of p a r t i c u l a r conventions. 2 3 Anyone even obliquely f a m i l i a r with the l i t e r a t u r e i n t h i s area w i l l be aware of the r i v a l accounts of the es s e n t i a l " l o g i c " of j u d i c i a l reasoning. A major conclusion of t h i s thesis i s that Dworkin's i n f l u e n t i a l account of j u d i c i a l reasoning i s incorrect. 24 American and B r i t i s h scholars have generally assumed commonality i n the fundamental nature of law and i n the structure of j u d i c i a l reasoning i n leg a l systems within the Anglo-American t r a d i t i o n . See, for example, Casswell (1982, p. 132), Dworkin 14 disputes about the nature of j u d i c i a l reasoning i s not prerequisite to the inc l u s i o n of j u d i c i a l reasoning i n school curricula.25 I t i s s u f f i c i e n t f or educational purposes that there e x i s t s a reasonably perspicuous, by-and-large defensible account of j u d i c i a l reasoning. The educational consequence of confusion about the nature of j u d i c i a l reasoning i s seemingly that ei t h e r the to p i c i s not considered or i t s treatment i s inadequate and misleading. An example of v i r t u a l lack of treatment i s a t h i r t y - e i g h t page government educational publication about the Canadian j u s t i c e system. The only comment remotely related to j u d i c i a l a p p l i c a t i o n of the law i s the remark that the courts have been established "to administer j u s t i c e and to inte r p r e t and apply federal and p r o v i n c i a l laws" (Department of J u s t i c e , [undated], p. 20). Where they have been made, attempts to deal with j u d i c i a l reasoning have been cursory and vague. Consider two examples. (1986, pp. 1-44) and MacCormick (1978, p. 11-12). While t h i s thesis and the majority of cases c i t e d focus on the Canadian judicature, I s h a l l follow the seemingly common assumption and presume to portray Anglo-American j u d i c i a l reasoning. This not to deny that there are important differences between the Anglo and the American j u r i s d i c t i o n s . For example, Honore (1983, pp. 48-49) suggests that American and B r i t i s h judges' authority to overrule longstanding precedents may d i f f e r because of d i f f e r e n t c o n s t i t u t i o n a l arrangements. 25 Needless to say, a cleare r understanding of the nature of j u d i c i a l reasoning might benefit l e g a l p ractice and l e g a l t r a i n i n g . Without question, i t important that judges and lawyers understand, as c l e a r l y as i s possible, the standards for proper l e g a l argument and decision making. Raz (1983b, p. 180) suggests that theorizing about adjudication i s the area i n philosophy of law that has had the greatest impact on j u d i c i a l p r a c t i c e . 15 A recent American educational publication on the workings of the United States Supreme Court i d e n t i f i e s the need f o r greater public understanding i n t h i s area. Few understand the Court's mandate; fewer appreciate the procedures by which i t s business i s conducted and i t s decisions rendered. For most of us, the Supreme Court i s an i n s t i t u t i o n shrouded i n mystery, a c o l l e c t i o n of nine distinguished j u r i s t s whose decisions - whether they address prominent s o c i a l issues or matters of seemingly minor importance - are rendered with much fanfare, but l i t t l e p u blic e x p l i c a t i o n . (Green, 1987, p. 6) In t h i s publication's attempt to demystify the Court, less than one-half page (one per cent of i t s space) i s devoted to the standards of j u d i c i a l reasoning. Two modes of reasoning employed by judges - i n t e r p r e t i v e guidelines and precedent - are mentioned i n passing. A t h i r d mode of reasoning - reasoning from p r i n c i p l e - to which judges resort when the meaning of the words and p r i o r decisions f a i l to resolve a case, i s not mentioned at a l l . Not s u r p r i s i n g l y , the author suggests that "there i s at times l i t t l e to guide the Jus t i c e s i n determining the meaning of these phrases [due process, l i b e r t y , and equal protection] with respect to si t u a t i o n s that could not have been anticipated when the words were written" (Green, 1987, p. 11). While court decisions w i l l often be controversial, the standards for j u d i c i a l a p p l i c a t i o n of the constitutions are s i g n i f i c a n t l y more extensive than t h i s account suggests. In a p a r t i c u l a r l y misleading manner, the discussion concludes with the ambiguous remark by Charles Evans Hughes ( l a t e r Chief Justice) that: "We are under a Constitution, but the Constitution i s what the judges say i t i s . " While judges are charged with declaring what the law requires i n a p a r t i c u l a r 16 case, t h i s does not imply that judges are authorized to exercise considerable d i s c r e t i o n i n determining what the law requires. I w i l l l a t e r argue that the common impression that judges have wide discretionary powers i s a misperception of proper j u d i c i a l p r a c t i c e . A recent Canadian high school textbook contributes to a si m i l a r , misleading impression. The authors appear to recognize the importance of learning about the considerations judges entertain when applying the Charter i n p a r t i c u l a r cases (B a r t l e t t , Craig, & Sass, 1989, p. 161). While the authors stress the need for judges to interpret c o n s t i t u t i o n a l provisions and weigh competing inter e s t s , they provide no e x p l i c a t i o n of the standards that judges must follow i n carrying out these tasks. Is the reader to assume, for example, that judges are free to follow t h e i r personal i n t u i t i o n s about what would be the " f a i r " decision? S i m i l a r l y , i n discussing several cases, no mention i s made of the grounds for the courts' conclusions or the appropriateness of basing t h e i r decisions on those considerations (B a r t l e t t et al... 1989, pp. 162-163). The impression i s created that judges determine, on mysterious or i d i o s y n c r a t i c grounds, that controversial cases w i l l be s e t t l e d i n a p a r t i c u l a r way. Understanding of the proper nature of the j u d i c i a l mandate has not been advanced. The discussion thus far has stressed the need for public understanding of the workings of the j u d i c i a r y and has indicated 17 the inadequate and misleading treatment of j u d i c i a l reasoning i n educational materials. Thus the challenges for the t h e s i s are: (1) to explicate a defensible conception of j u d i c i a l reasoning and (2) to j u s t i f y why proper understanding of j u d i c i a l reasoning i s an important, perhaps indispensable, component of informed public attitudes towards the j u d i c i a r y . As we w i l l see, the former task, that of ex p l i c a t i n g the nature of j u d i c i a l reasoning, requires considerably more extensive treatment than the l a t t e r task. Before previewing the strategy for carrying out these tasks, i t w i l l be useful to c l a r i f y b r i e f l y the focus of the t h e s i s . This c l a r i f i c a t i o n involves delineating the notion of j u d i c i a l reasoning and i d e n t i f y i n g the j u r i s p r u d e n t i a l roots of the present work. 3. Key contextual issues In t h i s t h esis, the term " j u d i c i a l reasoning" ref e r s to reasoning about what the law requires i n a p a r t i c u l a r case. Following Coombs (1985), t h i s phrase refers to one aspect of the reasoning included i n the broader term " l e g a l reasoning," and i s d i s t i n c t from what he coins "jury reasoning." Although some writers t r e a t l e g a l reasoning as synonymous with j u d i c i a l reasoning, i t i s misleading to do so. Most people would agree that l e g i s l a t o r s and ordinary c i t i z e n s reason about the law i n ways s i g n i f i c a n t l y d i f f e r e n t from the ways judges do. Even those who believe judges have a cl e a r law-making ro l e recognize a difference i n the standards to which l e g i s l a t o r s and judges 18 appeal (Raz, 1983b, pp. 195-196). The term j u d i c i a l reasoning i s i t s e l f misleading, since i t might be expected to include the reasoning followed when establishing the facts of a case. While t r i a l judges often determine the facts, i t i s c h a r a c t e r i s t i c of the jury's r e s p o n s i b i l i t y to do so. In t h i s t h e s i s , j u d i c i a l reasoning w i l l be understood to exclude considerations involved i n f a c t finding. My account of j u d i c i a l reasoning focuses on the considerations that govern j u d i c i a l a p p l i c a t i o n of the law i n a given s i t u a t i o n . A theory of j u d i c i a l reasoning must be a r t i c u l a t e d i n the context of a theory of the j u d i c i a l system, which i n turn r e l i e s on a theory of (Anglo-American) law. In fact, i t has been recognized that there i s a r e c i p r o c a l r e l a t i o n - any account of j u d i c i a l reasoning "makes presuppositions about the nature of law; equally, theories about the nature of law can be tested out i n terms of t h e i r implications i n r e l a t i o n to l e g a l reasoning" (MacCormick, 1978, p. 229).26 The theory of j u d i c i a l reasoning I propose to defend comes out of the l e g a l p o s i t i v i s t tradition.27 26 For a s i m i l a r point see Dworkin (1986, p. 90) and Raz (1983a, p. 209). 27 Like Dworkin (1983, p. 247), I do not propose to debate l a b e l s . Whether or not my theory of l e g a l reasoning q u a l i f i e s as a l e g a l p o s i t i v i s t theory depends on one's conception of l e g a l positivism. The notion i s d i f f i c u l t to pin down (Hart, 1958; Hart, 1982, p. 253; Lyons, 1984a, p. 50; Raz, 1983b, p. 37). For that matter, the l a b e l "legal positivism" may indicate very l i t t l e about a theory (Hart, 1967a, p. 418; MacCormick, 1978, p. 240). The theory of j u d i c i a l reasoning I propose meets Hart's "minimal" condition of legal positivism, which requires proponents to assert that "unless the law i t s e l f provides to the contrary, the fact that a l e g a l rule i s iniquitous or unjust does not e n t a i l that i t i s i n v a l i d or not law" (Hart, 1967a, p. 419). This does not imply, as Lyons (1984a, pp. 58-59) suggests, that 19 More s p e c i f i c a l l y , i t r e l i e s heavily on a theory of law espoused by Hart i n The Concept of Law and i n a subsequent a r t i c l e "Problems of Philosophy of Law" (hereafter referred to as CL and PPL, r e s p e c t i v e l y ) . While I am not wed to the e n t i r e t y of Hart's account of law,28 I propose to b u i l d a theory of j u d i c i a l the only "moral" standards appropriately appealed to by judges i n deciding a case must be e x p l i c i t l y stated i n law. Hart appears e x p l i c i t l y to deny t h i s assertion (1982, pp. 200-201). Regardless of the moral considerations to which judges are l e g a l l y expected to appeal i n reaching t h e i r decisions, t h e i r judgments once offered become law. In the absence of an e x p l i c i t provision that l e g a l rules inconsistent with morality are i n v a l i d , those judgments stand, regardless of t h e i r moral pedigree. Even i f a l e g a l system encouraged judges to decide indeterminate cases e n t i r e l y on the basis of moral p r i n c i p l e s , any p a r t i c u l a r judgment need not be moral. Immoral conclusions may r e s u l t from judges deciding indeterminate cases i n c o r r e c t l y or deciding determinate cases c o r r e c t l y . Hence, Hart (1967a, p. 419) suggests l e g a l positivism claims that "no reference to j u s t i c e or other moral values enters into the d e f i n i t i o n of law," although judges and l e g i s l a t o r s often entertain moral considerations. Lyons (1984a, p. 49) finds t h i s i n t e r p r e t a t i o n of l e g a l positivism implausible because he believes that almost no one, including a "natural law" t h e o r i s t , would deny Hart's minimal condition. While i t would be hard to f i n d contemporary opponents, t h i s minimal condition apparently was denied by notable j u r i s t s such as Lord Blackstone (Hart, 1958, p. 594), and Dworkin (1980, p. 342) i d e n t i f i e s i t as an extreme form of natural law theory. Raz (1983b, pp. 27-52) explicates l e g a l positivism i n terms of what he c a l l s "the strong source t h e s i s " - that t e s t s f o r i d e n t i f i c a t i o n of the existence and content of laws depend exclusi v e l y on s o c i a l facts and can be applied without resort to moral argument. This account of l e g a l positivism implies that cases involving almost any d i s c r e t i o n i n applying law are law-making, not law-identifying s i t u a t i o n s . For example, Raz (1983b, p. 181) holds the counterintuitive view that a p p l i c a t i o n of statutes containing value-laden terms such as "unreasonable" require law-making d i s c r e t i o n . Lyons (1984a, pp. 54-57) discounts positivism, as Raz understands i t , as an implausible theory of law. 28 In fact, my account of j u d i c i a l reasoning d i f f e r s from Hart's regrettably b r i e f explication, although I regard my account as a complement to h i s basic conception of law as a system of v a l i d r u l e s . I t i s beyond the scope of t h i s work to r a i s e the extent to which I disagree with his account of law i n areas not related to j u d i c i a l reasoning. I do not think, for example, that Hart provides an adequate, nor necessarily a correct, e x p l i c a t i o n of 20 reasoning upon the basic tenets of h i s e x p l i c a t i o n of law as a union of primary and secondary rules. I s h a l l borrow Dworkin's early l a b e l of Hart's conception and r e f e r to i t as the "model of r u l e s " account.29 Hart proposes that l e g a l systems be understood to comprise two l e v e l s of r u l e s . Primary rules consist of an elaborate c o n s t e l l a t i o n of rules specifying c i t i z e n s ' obligations within the l e g a l system. These are t y p i c a l l y what lay people r e f e r to as "laws" (CL, p. I l l ) and include rules that, for example, pr o h i b i t the use of violence, require that motorists drive on the right-hand side of the road, and so on. Secondary rules, directed primarily at o f f i c i a l s , 3 0 e s t a b l i s h c r i t e r i a by which primary rules within a system are i d e n t i f i e d and changed, and l e g a l o b l i g a t i o n . See, for example, Beehler (1978) and MacCormick (1978, pp. 275-292). A j u s t i f i c a t i o n for c i t i z e n s ' o b l i g a t i o n to obey law i s not a problem for the present thesis since my concern i s with j u d i c i a l o b l i g a t i o n to the law and t h i s appears to be unproblematic, as suggested by the following remarks of former Chief J u s t i c e Laskin (1978, p. 120): "my duty [as a judge], as I have already said, i s only to the law and to the impartial and expeditious administration of j u s t i c e under the law." 29 In Taking Rights Seriously. Dworkin used t h i s phrase to emphasize a difference between Hart's account and his own conception of law, which r e l i e s heavily on p r i n c i p l e s as well as on rules. Many who sympathize with Hart's theory r e j e c t Dworkin's d i s t i n c t i o n between p r i n c i p l e s and rules (in the s t r i c t sense). Subsequently, i n Law's Empire. Dworkin (1986, pp. 114ff.) ref e r s to Hart's theory as "conventionalism" - a view that determination of propositions of law are matters of pre-accepted, noncontroversial h i s t o r i c a l f a c t . This change of label (and the f a i l u r e to revive the e a r l i e r d i s t i n c t i o n ) suggests that Dworkin has conceded the l i m i t e d force of the " p r i n c i p l e - r u l e " c r i t i c i s m . More w i l l be said about t h i s c r i t i c i s m i n chapter four. 30 Some secondary rules, such as those conferring the power to make l e g a l l y binding contracts and w i l l s , are directed at c i t i z e n s as well as at o f f i c i a l s . 21 e s t a b l i s h mechanisms for making authoritative determinations regarding breaches of primary rules and appropriate sanctions (CL. pp. 92-95). For example, secondary rules of recognition specify the requirements for duly enacted l e g i s l a t i o n - that i s , rules of recognition specify the c r i t e r i a by which persons within the l e g a l community can i d e n t i f y bona f i d e laws. At the foundation of any l e g a l system i s a complex and often unformulated secondary rule establishing the v a l i d i t y of a l l other (primary and secondary) rules of that l e g a l system. According to Hart, a rule i s a v a l i d l e g a l rule - i . e . , i t i s a rule of a given l e g a l system - i f i t meets the c r i t e r i a provided by the rule of recognition for that system (CL, p. 100). This ultimate r u l e of recognition i s part of a l e g a l system not by v i r t u e of more fundamental formal c r i t e r i a but by v i r t u e of i t s acceptance by the community of l e g a l o f f i c i a l s (CL, pp. 111-114). This rule might s t i p u l a t e the o f f i c i a l (or body) that has f i n a l authority i n the event of a c o n s t i t u t i o n a l dilemma and the p r i n c i p l e ( s ) that are to be given paramount importance within the l e g a l system. Somewhat sur p r i s i n g l y , given the extent of h i s treatment of the various dimensions of law, Hart's account of j u d i c i a l reasoning i s incomplete (Hughes, 1968, pp. 413ff.). Hart's discussion of what he c a l l s secondary rules of adjudication does not deal with j u d i c i a l standards for applying rules i n p a r t i c u l a r cases. Rather, he attends almost exclusively to rules e s t a b l i s h i n g i n s t i t u t i o n a l adjudicative mechanisms such as courts 22 and other trib u n a l s (CL, p. 94). In fact, he e x p l i c i t l y states that treatment of the various forms of j u d i c i a l reasoning i s beyond the scope of h i s book (CL, p. 144). His p o s i t i v e account of j u d i c i a l reasoning amounts to the claim that i n s i t u a t i o n s where app l i c a t i o n of the rule i s not "clear,"31 judges w i l l attempt to weigh, i n an impartial and reasoned manner, competing l e g a l and "moral" p r i n c i p l e s and aims (CL, p. 200; PPL, p. 271). This present study i s an attempt to complement Hart's work by constructing a theory of j u d i c i a l reasoning i n terms of what w i l l be c a l l e d secondary rules of applic a t i o n . Throughout, the term " r u l e " w i l l r e f e r to a wide range of l e g a l norms or "normative standards,"32 including canons, conventions, doctrines, maxims, precepts, presumptions, and principles.33 E s s e n t i a l l y , the theory holds that i n applying the law judges are governed by secondary rules which meet c r i t e r i a of v a l i d i t y s i m i l a r to those required of primary rules,34 and which constitute standards for i d e n t i f y i n g and adjudicating among acceptable reasons for a decision. In other words, j u d i c i a l judgments must be j u s t i f i e d by reasons whose l e g a l v a l i d i t y and 31 A " c l e a r " case i s a s i t u a t i o n where conventions about the ordinary and l e g a l meanings of words determine the case or, when the agreed meanings of words do not resolve the issue, where the l e g i s l a t i v e aim i s s u f f i c i e n t l y d i r e c t i v e to s e t t l e what i s to be done (PPL, p. 271). 32 Waluchow (1980, p. 191) o f f e r s the phrase "normative standard" as an equivalent to Hart's notion of rules. 33 G o t t l i e b (1968, p. 40) suggests that any normative utterances that can be expressed i n the form " i n circumstances X, Y i s required/permitted" function as a rul e . 34 Hart's c r i t e r i a of v a l i d i t y , s p e c i f i e d i n what he refers to as rules of recognition, include passage by authorized l e g i s l a t o r s , c i t a t i o n i n an authoritative text or j u d i c i a l opinion, and recognized customary practice (CL, p. 97). 23 weight can be established by c r i t e r i a set out i n rules of a p p l i c a t i o n . I t should be pointed out that because of the i n e v i t a b l e indeterminacy of rules, e s p e c i a l l y general rules, the existence of rules of application does not imply that j u d i c i a l decision making can be reduced to a mechanical procedure or that i t leads to uniquely correct answers i n every case. In fact, i f rules of a p p l i c a t i o n are vague, ambiguous or c o n f l i c t i n g , as they often appear to be i n Anglo-American l e g a l systems, j u d i c i a l decisions w i l l often be inconsistent and unpredictable. The question of the proper r o l e of the j u d i c i a r y i n applying the law has become the p r i n c i p a l focus of considerable academic, professional and public attention. This i s due i n large measure to Dworkin's c r i t i c i s m s of Hart's account of law. Dworkin's considerable contributions to t h i s debate are found i n three books - Taking Rights Seriously. A Matter of P r i n c i p l e and Law's  Empire (hereafter referred to as TRS, MP and LE, r e s p e c t i v e l y ) . Unquestionably, h i s strongest c r i t i c i s m s of Hart's p o s i t i o n focus on l e g a l reasoning (MacCormick, 1978, p. 229; C o t t e r r e l l , 1987, pp. 509-510). As Dworkin i s regarded as the most formidable c r i t i c of a model of rules approach (Waluchow, 1980, p. 3), many of the p o t e n t i a l objections to the proposed theory of j u d i c i a l reasoning issue from Dworkin's work. 4. Overview of the thesis The thesis has three parts: (1) e x p l i c a t i o n and defence of the c r i t e r i a for j u s t i f y i n g theories of j u d i c i a l reasoning 24 (chapters two and three); (2) a r t i c u l a t i o n and j u s t i f i c a t i o n of the p o s i t i v e account of j u d i c i a l reasoning (chapters four through eig h t ) ; and (3) an educational rationale for teaching about j u d i c i a l reasoning (chapter nine). Because of h i s t o r i c a l and contemporary confusion over the purposes of theorizing about law, ex p l i c a t i o n of three basic types of theorizing about s o c i a l practices i s presented i n chapter two. I t i s suggested that the relevant type of theory bu i l d i n g about j u d i c i a l reasoning, c a l l e d a "formal theory," requires j u s t i f i c a t i o n i n l i g h t of what informed p r a c t i t i o n e r s would accept as the standards operating within t h e i r system. In chapter three, t h i s c r i t e r i o n for j u s t i f y i n g theories of j u d i c i a l reasoning i s defended against objections implied by an account of theorizing presented by Dworkin. Dworkin argues that theory bu i l d i n g i n law i s a deeply i n t e r p r e t i v e enterprise and that as a re s u l t , several conceptions of j u d i c i a l reasoning are l i k e l y to account for - to " f i t " - the phenomena of a l e g a l system. Dworkin's e x p l i c a t i o n of theory building i s rejected on the grounds that i t conflates a d i s t i n c t i o n between theories that f a i t h f u l l y represent the standards of proper j u d i c i a l practice and theories whose account of j u d i c i a l standards i s cont r o l l e d by an instrumental purpose - say, by a desire to reform j u d i c i a l p r a c t i c e . Chapter four begins the development of a conception of j u d i c i a l reasoning as a rule-guided practice. The basic form of 25 j u d i c i a l reasoning i s explored, and a conception of j u d i c i a l reasoning i n terms of various second-order rules i s outlined. These rules e s t a b l i s h the standards judges r e l y upon when they decide how to apply a law i n a p a r t i c u l a r case. The standards of j u d i c i a l argument are r e f l e c t e d i n three types of secondary rules of a p p l i c a t i o n : rules of argument v a l i d i t y , rules of argument v e r i f i c a t i o n and rules of weight. The rules e s t a b l i s h which arguments are l e g a l l y v a l i d for a decision, the r e l a t i v e weight of those arguments, and c r i t e r i a for v e r i f y i n g the conclusions att r i b u t e d to the arguments. Chapters f i v e , s i x , and seven contain p o s i t i v e accounts of the three dominant modes or forms of reasoning r e l i e d upon by judges. These modes of reasoning -reasoning from in t e r p r e t i v e guidelines, reasoning from p r i o r cases, and reasoning from p r i n c i p l e - depend on cons t e l l a t i o n s of secondary rules which guide j u d i c i a l decision making. Reasoning from i n t e r p r e t i v e guidelines involves second-order rules that govern ap p l i c a t i o n of law by determining a law's meaning; reasoning from p r i o r cases involves second-order rules governing app l i c a t i o n of law i n l i g h t of previous j u d i c i a l decisions; and reasoning from p r i n c i p l e involves second-order rules for assessing the implications of potential j u d i c i a l decisions i n l i g h t of other l e g a l standards. In addition to defending the basic l o g i c of each of these modes against r i v a l interpretations, I address challenges to the adequacy of these modes as r u l e -guided accounts of le g a l practice. Chapter eight considers several of Dworkin's key objections to t h i s conception of 26 j u d i c i a l reasoning. These include Dworkin's e x p l i c i t c r i t i c i s m s of Hart's account of law and l e g a l reasoning, and i m p l i c i t challenges posed by Dworkin's r i v a l account of j u d i c i a l reasoning. The c l o s i n g chapter provides a rationale f o r teaching about j u d i c i a l reasoning i n public and school-based educational programs, and an account of the key understandings that ought to be promoted. Several example are offered as to how public ignorance or misunderstanding about j u d i c i a l decision making u n f a i r l y threatens public respect for the j u d i c i a r y and increases support for undesirable changes i n the j u d i c i a l system. I t i s argued that greater understanding of the modes of j u d i c i a l reasoning could be expected to decrease unfounded and p o t e n t i a l l y damaging perceptions of j u d i c i a l practices. The d i s s e r t a t i o n concludes with an outline of the key elements of an adequate understanding of j u d i c i a l reasoning. As indicated above, before i t can be shown why j u d i c i a l reasoning ought to be part of basic c i v i c education, a defensible theory of j u d i c i a l reasoning must be a r t i c u l a t e d , and, p r i o r to that, the nature of theorizing about j u d i c i a l p r a c t i c e must be c l a r i f i e d . I t i s to t h i s l a t t e r task that I now turn. 27 Chapter Two: Theorizing about J u d i c i a l Reasoning The i n t e r r e l a t i o n between j u d i c i a l reasoning and broader theories of law raises an important caution. The past two centuries have witnessed extensive and seemingly s t e r i l e speculation about the nature of law. Philosophical and l e g a l l i t e r a t u r e abounds with d i f f e r i n g accounts of law and, by implication, of l e g a l reasoning. These accounts are variously referred to as descriptions of the nature, or the concept, or a theory, or a model, or the science of law. This d i v e r s i t y of labels r e f l e c t s differences i n the perceived nature of the inquiry as much as substantive differences i n the content of the accounts. This confusion about the nature of the question being asked might explain Kant's reported remark that the i n a b i l i t y adequately to answer the question "What i s law?" may embarrass j u r i s t s as much as the question "What i s truth?" embarrasses lo g i c i a n s (Golding, 1966, p. v ) . C l a r i f y i n g the nature of law has been c a l l e d "one of the most i n s i s t e n t and yet elusive problems i n the entire range of thought" (Williams, 1956, p. 134). More recently i t has been ventured that the problems of d e f i n i t i o n of law have been "endlessly debated" (PPL, pp. 264-265).1 1 Hart suggests that the major disputes underlying the recurrent question "What i s law?" cannot p r o f i t a b l y be resolved by 28 I f we are to avoid arguing at cross purposes, we had better be c l e a r about the nature of the question lurking beneath our inquiry. Two educational t h e o r i s t s recently suggested that without clear, defensible standards, we are unable to di s t i n g u i s h i n t e l l e c t u a l fantasizing from rigorous theorizing. In v i r t u e of what c r i t e r i a do we dismiss Nazi philosophy, for instance, as valueless and accept Marx and Freud as valuable? Are we not simply warmed by some world-pictures and c h i l l e d or h o r r i f i e d by others? Are we not simply acting out our own fantasies i n i n t e l l e c t u a l i z e d or ra t i o n a l i z e d forms, when we write or c r i t i c i z e them? Are we (to put i t severely) behaving responsibly i n spending our time thus? The position i s uncomfortably l i k e that of medieval pseudo-science i n which, without a proper methodology, s c i e n t i s t s were reduced to picking among the fantasies about the o r i g i n and nature of the world on the basis of what happened to appeal to them. To f i n a l i z e the point l e s s t h e a t r i c a l l y : reason cannot get a g r i p on any form of discourse unless we have some idea about the c r i t e r i a which we are to apply to i t , or the standards of reason which i t i s supposed to s a t i s f y . (Wilson & Cowell, 1988, p. 5)2 A c l e a r understanding of the standards for appraising theories of j u d i c i a l reasoning i s es s e n t i a l i f we are to cut through the h i s t o r i c a l confusion about the nature of leg a l theorizing. For example, Dworkin's theory of j u d i c i a l reasoning appears to be offered as a r i v a l to the "model of ru l e s " account. However, as we w i l l see, his account of the c r i t e r i a f or j u s t i f y i n g theories of j u d i c i a l reasoning does not require that t h e o r i s t s f a i t h f u l l y account for accepted Anglo-American pra c t i c e s . Perhaps, i n the f i n a l analysis, Dworkin does not concisely defining the term or by distinguishing instances and non-instances of law (CL, pp. 13-17). 2 Shiner (1986, p. 515) compliments Dworkin for r a i s i n g important t h e o r e t i c a l issues regarding l e g a l reasoning but chides him for abandoning rigorous and d i s c i p l i n e d argument i n favour of "noble day-dreaming." 29 purport to o f f e r a theory about the standards that our l e g a l system currently expects judges to r e l y upon i n reasoning about the law. However, before coming to any conclusions about the d e f e n s i b i l i t y of r i v a l theories, clea r e r e x p l i c a t i o n and j u s t i f i c a t i o n of the grounds for a theorizing about j u d i c i a l reasoning are required. In t h i s chapter, three types of theories of j u d i c i a l decision making and the c r i t e r i a for j u s t i f y i n g each theory are i d e n t i f i e d . In the course of exploring ways i n which the theories are sometimes conflated, an account of the c r i t e r i a for formal theorizing - the type of theorizing appropriate f o r the present project - w i l l be presented and defended. In the next chapter, we w i l l look i n some d e t a i l at Dworkin's challenge to t h i s account of the c r i t e r i a for l e g a l theorizing. 1. Three kinds of theorizing Let us begin by noting that j u d i c i a l decision making i s a s o c i a l p ractice - that i s , i t i s a public, r e l a t i v e l y organized a c t i v i t y undertaken to pursue a set of shared goals. When speculating about, say, the workings or the point of t h i s practice, one engages i n theory building of at l e a s t a l i m i t e d kind. I f we are to assess the adequacy of such a theory we must have some idea about the purpose of the speculation; c r i t e r i a for assessing a theory's merit depend on the purposes for developing theories of that type. To explain the d i f f e r e n t purposes and the c r i t e r i a each implies, I o f f e r a rough account of three types of 30 theories about j u d i c i a l decision making - e t h i c a l theories, causal theories and formal theories. These encompass the d i f f e r e n t kinds of theories that have been offered about law. While these ways of theorizing w i l l be discussed separately to c l a r i f y the differences between them, i n practice, t h e o r i s t s may intertwine them.3 One type, which I w i l l c a l l e t h i c a l theorizing, seeks to describe and to j u s t i f y how laws, le g a l agents and l e g a l i n s t i t u t i o n s ought to be arranged so as to maximize the e t h i c a l d e s i r a b i l i t y of the l e g a l system. I t i s a theory about how the e x i s t i n g system should be arranged i f we had the opportunity to reform i t . Such a theory may be r a d i c a l and propose, for example, as does Wolff, that i n the interests of l i b e r t y we dismantle our l e g a l system and allow i n d i v i d u a l moral convictions to rule (Mazor, 1972, pp. 1037-1038). A l t e r n a t i v e l y , the theory could amount la r g e l y to a defense of current procedures, on the grounds that they are the best we can reasonably expect. These theories are e t h i c a l theories because they appeal to standards which r e f l e c t t h e i r proponents' conception of "the good" - a conception of the i n t e r e s t s , aims and rights of the immediate and ultimate c l i e n t s of the system and how they ought to be served. 3 In discussing the types of theorizing he i s engaged i n , Dworkin distinguishes between the "external" perspective of the s o c i o l o g i s t or the h i s t o r i a n and the " i n t e r n a l " perspective of the p a r t i c i p a n t (LE, pp. 13-14). The " i n t e r n a l " perspective s p i l l s over into two types of theories that I d i s t i n g u i s h -theories about proper practice (formal theories) and theories about desirable practice (ethical theories). 3 1 A defense of t h i s type of theory, as with the j u s t i f i c a t i o n of value claims, rests l a r g e l y on two c r i t e r i a : (1 ) the a c c e p t a b i l i t y of the e t h i c a l standards or ideals the proponent seeks to promote, and (2) the l i k e l i h o o d of the recommended configuration promoting these ends more e f f e c t i v e l y than would availa b l e a l t e r n a t i v e s . For example, Wolff's theory, which proposes a b o l i t i o n of a l l organized forums f o r the administration of j u s t i c e i n order to maximize in d i v i d u a l freedom, has been c r i t i c i z e d on both j u s t i f i c a t o r y grounds. The near-paramount importance Wolff attaches to in d i v i d u a l l i b e r t y i s regarded as unacceptable, because i t undervalues other equally important ideals such as equality and j u s t i c e , and h i s assumptions about the l i k e l y r e s u l t s of such a state of a f f a i r s are considered u n r e a l i s t i c - anarchy would succeed only i f "men were angels" (Mazor, 1 9 7 2 , p. 1 0 3 8 ) . E t h i c a l theories about j u d i c i a l decision making can be contrasted with a second type, which I w i l l c a l l causal theories. These seek to describe and to explain the behaviour of j u d i c i a l agents and the operation of le g a l i n s t i t u t i o n s i n terms of underlying economic, p o l i t i c a l , psychological or s o c i o l o g i c a l causes and influences. In other words, they endeavour to account for the system i n terms of latent causes, de facto functions, h i s t o r i c a l forces, and so on. For example, as the t i t l e of h i s book, The P o l i t i c s of the Judiciary, suggests, G r i f f i t h argues that the B r i t i s h j u d i c i a r y exercises an important " p o l i t i c a l " r o l e . One of G r i f f i t h ' s conclusions i s that the homogeneous 32 s o c i a l background of B r i t i s h superior court judges explains what he sees as the r e l a t i v e l y uniform "conservative" stance of many appellate decisions ( G r i f f i t h , 1985, p. 234). J u s t i f i c a t i o n of t h i s type of theorizing, as of other forms of empirical explanations, appeals to two basic c r i t e r i a . One i s the c r e d i b i l i t y of the putative fa c t s ; that i s , whether there i s good evidence to warrant b e l i e f that an event occurred or that a c h a r a c t e r i s t i c appeared as depicted. For example, i t might be shown that G r i f f i t h ' s s e l e c t i o n of cases for analysis was a t y p i c a l and that there was no d i s c e r n i b l e "conservative" trend when a l l appellate decisions were considered. A second j u s t i f i c a t o r y c r i t e r i o n i s the c r e d i b i l i t y of the explanation for the phenomena. Does the theory provide the most p l a u s i b l e explanation of the causes for the phenomena? For example, i t i s conceivable that although B r i t i s h superior court judges tend to be drawn from the same s o c i a l c lass they might have d i f f e r e n t p o l i t i c a l views. I f t h i s were the case, G r i f f i t h ' s explanation of the judges' conservative tendency i n terms of common s o c i a l background could not be sustained. A l t e r n a t i v e l y , the phenomena might be ( p a r t i a l l y ) explained by the hypothesis that, regardless of t h e i r personal p o l i t i c a l views, judges perceive t h e i r professional j u d i c i a l duty as requiring that they apply law i n a conservative manner. Neither type of theorizing we have considered thus f a r provides us with an account of j u d i c i a l decision making that addresses the purposes i d e n t i f i e d b r i e f l y i n the opening remarks 33 of the t h e s i s - namely, to explicate the standards to which judges are expected to conform i n f u l f i l l i n g t h e i r adjudicative r e s p o n s i b i l i t i e s . G r i f f i t h ' s causal theory about B r i t i s h judges' s o c i a l background leaves open the question of whether judges overstep t h e i r authority i n deciding as they do.4 Arguments for and against Wolff's e t h i c a l theory may o f f e r l i t t l e e x p l i c a t i o n of the standards governing current practices. I f educators are to explain how the j u d i c i a l function i s supposed to be c a r r i e d out, they require an account of the standards that judges follow when they apply the law properly. This t h i r d type of theorizing, which I w i l l c a l l formal theorizing,5 seeks to construct a model of correct j u d i c i a l d ecision making within a given l e g a l system or l e g a l t r a d i t i o n . Formal theories attempt to explicate the e s s e n t i a l features of a practice - i t s structure, governing norms, and basic " l o g i c . " Theorizing of t h i s sort i s descriptive i n that i t must f a i t h f u l l y portray the sanctioned standards and recognized practices of a given system. However, formal theorizing also has a normative dimension. Unlike causal theories, which generally have a strong i n t e r e s t i n predicting and explaining l i k e l y behaviour, formal theories focus on i d e n t i f y i n g and explaining expected behaviour -on what would occur i f p r a c t i t i o n e r s operated i n accordance with the norms prescribed by t h e i r system. In other words, formal 4 This statement i s meant to r e f e r only to the conclusion c i t e d above. G r i f f i t h (1985, pp. 193-235) concludes that B r i t i s h judges are authorized to act i n a law-making r o l e and that, by and large, they act i n a j u d i c i a l l y proper manner. 5 Kovesi (1971, pp. I f f . ) uses the term "formal" i n a s i m i l a r way. 34 theories account for "proper" rather than " t y p i c a l " behaviour. This d i s t i n c t i o n underlies the following remarks about reasoning from precedent: My observations are meant to be f a i t h f u l to the accepted theory of practice rather than to the p r a c t i c e i t s e l f . Their aim i s to explain the way judges and l e g a l scholars regard the working of the doctrine of precedent. Only an empirical study going beyond the examination of the law reports could record to what extent the actual p r a c t i c e conforms to these theories. (Raz, 1983b, p. 181) A formal theory explicates what counts as "acceptable" or "correct" practice, and gives r i s e to normative conceptions of j u d i c i a l duty and j u s t i f i e d decision. As MacCormick (1978, pp. 12-13) suggests, formal theorizing about j u d i c i a l reasoning i s e s s e n t i a l l y "an attempt to expiscate and explain the c r i t e r i a as to what constitutes a good or a bad, an acceptable or an unacceptable type of argument i n law." However, unlike e t h i c a l theories, formal theories do not defend the standards embedded i n a given system i n l i g h t of more fundamental e t h i c a l values. For example, the most plausible formal theory about acceptable norms of l e g a l p r a c t i c e i n South A f r i c a need not presume that apartheid i s e t h i c a l l y defensible.6 In some systems at l e a s t , l e g a l l y proper p r a c t i c e may be morally unfair or discriminatory.7 In the introduction to h i s (formal) theory of j u d i c i a l reasoning, MacCormick o f f e r s a compatible observation: "My conclusions 6 See, f o r example, Manning's (1987) observations on the l e g a l i z e d inequity i n South A f r i c a ' s l e g a l system. 7 For example, i n Canada i t would generally be accepted that the orders-in-council authorizing deportation of Japanese Canadians a f t e r World War II were u n f a i r l y discriminatory and yet l e g a l l y sanctioned - at least, t h e i r l e g a l i t y was upheld by the Supreme Court of Canada i n Cooperative Committee on Japanese Canadians v.  A.G. of Canada [1947] 1 D.L.R. 577. 35 therefore present a double face: they are both i n t h e i r own r i g h t normative and yet I believe them to describe norms a c t u a l l y operative within the systems under study" (MacCormick, 1978, p. 13) . In some respects, defending a formal theory of j u d i c i a l reasoning i s analogous to ordinary language analysis of concepts.8 The j u s t i f i c a t i o n of ordinary language claims builds upon the ways i n which words are (and have been) used by competent speakers of the language. The range of uses are explored, and central or paradigmatic features of usage are contrasted with derivative and a t y p i c a l features. The usual upshot of such an analysis i s a set of e s s e n t i a l conditions c o n s t i t u t i n g a concept "properly understood." These standard conditions are the c r i t e r i a upon which are based assessments of the correctness or appropriateness of p a r t i c u l a r applications of the concept. While formal theorizing about the j u d i c i a l system i s not, at heart, an analysis of the concepts used by p r a c t i t i o n e r s - i t i s an analysis of a practice - i t shares a p a r a l l e l methodology.9 Formal theorizing about eith e r a concept 8 Ordinary language analysis provides a theory of correct usage of a concept; a formal theory of j u d i c i a l reasoning i s an account of standards for correct practice. 9 Some have suggested that Hart's project was e s s e n t i a l l y a conceptual analysis of "law" (Samek, 1974, pp. 271ff.). This i s not a s u r p r i s i n g assessment given Hart's choice of t i t l e , The  Concept of Law, and h i s extensive analysis of numerous concepts. However, I think t h i s assessment i s inaccurate; Hart's account i s predominantly a formal theory of l e g a l p r a c t i c e . Notice that Hart suggests that his project w i l l be regarded as " a n a l y t i c a l jurisprudence" because " i t i s concerned with the c l a r i f i c a t i o n of the general framework of le g a l thought, rather than with the c r i t i c i s m of law or l e g a l p o l i c y " (CL, p. v ) . A l l that he i s admitting i s that his work i s not what I c a l l an e t h i c a l theory. 36 or a pra c t i c e presupposes a r e l a t i v e l y uncontroversial set of "f a c t s " - what competent p r a c t i t i o n e r s would recognize as features of accepted behaviour i n a given communitylO - and proceeds to i d e n t i f y c o n s t i t u t i v e p r i n c i p l e s and structures which explain, r a t i o n a l i z e and, i f appropriate, assess p a r t i c u l a r aspects of the practi c e . In passing, i t i s important to note that accepting p r a c t i t i o n e r s as authoritative sources of information about acceptable standards within a pra c t i c e should not be confused with asserting p r a c t i t i o n e r s ' competence to theorize about the underlying l o g i c and structure of those standards. For example, the Swiss children that Piaget (1965) interviewed for his study of rule-guided behaviour were experts on the rules of the game of marbles even though they may never have considered the second-order p r i n c i p l e s that explained t h e i r behaviour. S i m i l a r l y , while judges are aut h o r i t i e s on the secondary rules of application i n a given system, they may not be Furthermore, Hart characterizes h i s work as "descriptive sociology" and, c i t i n g Austin, provides a rati o n a l e for h i s instrumental concern with conceptual analysis: "a sharpened awareness of words to sharpen our perceptions of the phenomena" (CL, p. v ) . F i n a l l y , i n concluding h i s introductory chapter, Hart e x p l i c i t l y states that resolution of doubts about ap p l i c a t i o n of the concepts "law" and "le g a l system" i s only a secondary concern of his book (CL, p. 16). As he says, " i t s purpose i s not to provide a d e f i n i t i o n of law, i n the sense of a rule by reference to which the correctness of the use of the word can be tested; i t i s rather to advance l e g a l theory by providing an improved analysis of the d i s t i n c t i v e structure of a municipal l e g a l system" (CL, p. 17). 10 As Waluchow (1983, p. 336) states, "The best way to determine the rules of the game i s to ask i t s p a r t i c i p a n t s . " See also B e l l (1985, pp. 23-24). 37 i n a p o s i t i o n to explain the underlying l o g i c of j u d i c i a l r e asoning.il I suggest that defense of a formal theory depends on the extent to which the descriptions and explanations of the practice can be sustained i n l i g h t of the norms, requirements, procedures, and purposes which f u l l y informed, competent p r a c t i t i o n e r s would recognize as characterizing t h e i r system. As we w i l l see, the phrase "what f u l l y informed, competent p r a c t i t i o n e r s would recognize" i s used f i g u r a t i v e l y , as a " l e g a l f i c t i o n . " I t denotes a t e s t or c r i t e r i o n to be met, namely that i t i s reasonable to expect that open-minded persons s u f f i c i e n t l y informed about the relevant facts would recognize a given theory as a f a i t h f u l account of the norms of a given l e g a l system. For example, Raz believes that judges are applying the law i n a given s i t u a t i o n only i f t h e i r decision can be deduced from the meaning of the words used or from previous cases (Lyons 1984a, pp. 56-57). According to Raz's theory, because of the vagueness of the meaning of the due process clause i n the U.S. Constitution, judges who f i r s t interpreted the clause were most l i k e l y involved i n making law - they could not, on Raz's account, be said to have applied the due process clause. However, most p r a c t i t i o n e r s 11 Dworkin supports t h i s d i s t i n c t i o n when he suggests that disputes between r i v a l theories of law w i l l not be resolved "by framing more i n t e l l i g e n t questionnaires for judges" (TRS, p. 352). As he says, the fundamental dispute i s over "which philosophical account of the practice i s superior." In commenting on p r a c t i t i o n e r s ' competence to theorize about l e g a l p r a c t i c e Dworkin suggests: "popular opinion about judges and judging i s a sad a f f a i r of empty slogans, and I include the opinions of many working lawyers and judges when they are writing or t a l k i n g about what they do" (LE, p. 11). 38 would agree that there are other l e g a l grounds besides i n t e r p r e t a t i o n and precedent for deciding whether or not a law applies i n a p a r t i c u l a r case. Thus, Raz's account of j u d i c i a l reasoning i s at best an incomplete formal theory since i t f a i l s to account for a l l of the norms that p r a c t i t i o n e r s recognize as appropriate l e g a l standards. We can get a c l e a r e r understanding of how to i d e n t i f y the c r i t e r i a for assessing r i v a l formal theories - that i s , i d e n t i f y i n g what p r a c t i t i o n e r s would recognize as appropriate l e g a l standards - by considering the ways i n which the three types of theories are sometimes conflated. 2. Conflation of theories The c o n f l a t i o n of types of theorizing occurs for several reasons. One reason, which has already been discussed, i s confusion over the purposes for the inquiry. For example, the American l e g a l r e a l i s t s ' theory of j u d i c i a l reasoning, which denied that "rules" r e l i a b l y accounted for j u d i c i a l decisions, was often taken to be a r i v a l theory to l e g a l positivism. According to one reading of l e g a l realism,12 they are not r i v a l theories since the r e a l i s t s ' claim that judges do not always apply the rules i m p a r t i a l l y i s not incompatible with the p o s i t i v i s t s ' claim that judges are remiss when they f a i l to apply 12 Legal realism i s a loose c o l l e c t i o n of diverse views on the actual workings of law. One version of r e a l i s t s ' p o s i t i o n - the unqualified claim that legal rules are myths - cannot p l a u s i b l y be taken to be a formal theory (CL, p. 133). Hart i d e n t i f i e s several versions of what he c a l l s rule-skepticism that may q u a l i f y as formal theories (CL, pp. 132ff.). 39 the rules i m p a r t i a l l y . Legal r e a l i s t s were, for the most part, concerned with a causal e x p l i c a t i o n of l e g a l p r a c t i c e and not an e x p l i c a t i o n of how law was supposed to be practiced. A second reason f o r c o n f l a t i o n of theories stems from d i f f i c u l t i e s i n i d e n t i f y i n g bona f i d e standards within a p r a c t i c e . These d i f f i c u l t i e s a r i s e i n two ways. Because of the normative dimension of formal theorizing, two forms of "ought" are sometimes conflated: i t i s often d i f f i c u l t to d i s t i n g u i s h what should occur, given accepted l e g a l standards, from what would otherwise be desirable to occur. Because of the d e s c r i p t i v e dimension of formal theorizing, two forms of " i s " are also sometimes conflated: i t i s often d i f f i c u l t to d i s t i n g u i s h e x i s t i n g standards from pseudo-standards. Let us consider these two sources of d i f f i c u l t y i n turn. 2.1 Normative confusions I t was suggested e a r l i e r that, unlike e t h i c a l theories, formal theories do not attempt to j u s t i f y standards embedded i n p r a c t i c e i n l i g h t of more fundamental e t h i c a l values. Stated t h i s way, the claim i s very misleading. Afte r a l l , i n the o f f i c i a l conduct of t h e i r duties, judges continually defend t h e i r judgments i n l i g h t of more fundamental values. In fact, the Canadian Charter of Rights and Freedoms (hereafter the Charter) requires judges to j u s t i f y any l i m i t s on c o n s t i t u t i o n a l r i g h t s i n l i g h t of the p r i n c i p l e s sanctioned by a "free and democratic society." Thus i t appears that l e g a l standards often require judges to j u s t i f y t h e i r decisions i n l i g h t of fundamental "moral" 40 p r i n c i p l e s , and yet fundamental moral p r i n c i p l e s do not play a ro l e i n j u s t i f y i n g what le g a l standards judges should apply. To explain t h i s apparent contradiction, i t i s useful to envisage a l e g a l system as a kind of value system - that i s , a complex set of standards and rules ordered i n a loose hierarchy (Samek, 1974, p. 44). A v e r d i c t i n a p a r t i c u l a r case w i l l be j u s t i f i e d i n l i g h t of a rule of law. The l e g a l i t y of that r u l e of law might i n turn be j u s t i f i e d i n l i g h t of higher, c o n s t i t u t i o n a l standards, which i n turn might appeal to more fundamental ideals within the system. The fa c t that we r e f e r to our law as a system suggests that at some point we can d i s t i n g u i s h the standards and rules that belong to i t from those that are outside the system. Speaking of a person, we might say that the standards e x p l i c i t l y or i m p l i c i t l y held by that person comprise the standards of h i s value system. We may have great d i f f i c u l t y i n c l e a r l y i d e n t i f y i n g those standards, but, i n p r i n c i p l e , we can d i s t i n g u i s h values that are part of an in d i v i d u a l ' s value system from those that are not. The same applies to l e g a l systems - the values of a given l e g a l system w i l l be the values that can be at t r i b u t e d to the i n s t i t u t i o n s and practices within that system.13 For example, a fundamental issue i n the t r a d i t i o n a l debate between natural law and l e g a l positivism can be understood as a dispute over demarcation of the values of a l e g a l system. A 13 The analogy with ordinary language analysis i s that the range of uses of a concept w i l l be those recognized within a given language community. 41 t r a d i t i o n a l version of natural law holds that a necessary condition f o r a t t r i b u t i n g a standard to any l e g a l system i s that the standard i s consistent with p r i n c i p l e s of "natural" j u s t i c e . C l a s s i c a l l e g a l positivism holds that that condition i s not a necessary element of a l e g a l standard.14 C l a s s i c a l natural law theory i n s i s t s that there i s no d i s t i n c t i o n between the norms of a l e g a l system and moral norms. Legal positivism holds that although there w i l l i n e v i t a b l y be grey areas,15 i n p r i n c i p l e i t i s possible to d i s t i n g u i s h l e g a l from moral standards. I f natural law and l e g a l positivism are r i v a l formal theories of law, then resolution of t h i s dispute hinges on what informed p r a c t i t i o n e r s would accept as the l i m i t s of t h e i r l e g a l system. The natural law requirement that a l l j u d i c i a l decisions be consistent with moral p r i n c i p l e s i s a bona f i d e requirement of our l e g a l system only i f o f f i c i a l s i n our system accept i t as a standard binding on them. 14 As was discussed e a r l i e r , t h i s way of expressing the "separation of law and morality" thesis implies only that the a t t r i b u t i o n of any given standard to a l e g a l system does not require that the standard be a morally defensible one. Hart acknowledges what has been c a l l e d the "minimum moral content" of a l e g a l system - that degree of j u s t i c e and fairness required for any system to function (CL, p. 202). 15 P o s i t i v i s t s disagree about the sharpness with which the d i s t i n c t i o n between legal and extra-legal standards can be drawn and about what i s expected i n the "penumbra" cases. For example, " l e g a l formalism" or "mechanical jurisprudence" - the view that a p p l i c a t i o n of law i s l a r g e l y a technical task circumscribed by r e l a t i v e l y unambiguous rules - asserts a c l e a r d i v i s i o n between l e g a l and extra-legal standards. This " l e t t e r of the law" version of positivism i s to be contrasted with Hart's version, which recognizes that application of the law i s often uncertain and creative, as i t requires appeal to ambiguous or general standards (CL, p. 200). 42 Regardless of where a given formal theory divides those standards a t t r i b u t a b l e to the l e g a l system from those outside the system, any system w i l l allow for e t h i c a l theorizing i n l i g h t of external standards.16 As was suggested above, an obvious area of contention i n distinguishing formal and e t h i c a l theories involves determining whether or not the standards being appealed to are "acceptable" standards within the l e g a l system. A further way i n which formal and e t h i c a l theories are sometimes conflated stems from the fact that appeals to values external to the system do not exhaust the ways of e t h i c a l theory building. An e t h i c a l theory with recommendations as to how l e g a l p r a c t i c e should be improved may be j u s t i f i e d i n l i g h t of standards within the system. For example, assume that an established l e g a l custom permits judges to dispose of a case without being required to provide written opinions explaining t h e i r reasons for judgment. Assume, further, that the absence of these reasons impairs judges' a b i l i t y to decide subsequent cases i n a consistent manner. A t h e o r i s t would be engaging i n e t h i c a l theory building i f he recommended changing the custom because mandatory written 16 I t i s worth noting that the d i s t i n c t i o n between formal and e t h i c a l theorizing does not prejudice the case against t h e o r i s t s who deny a cl e a r separation between le g a l norms and p o l i t i c a l morality. A formal theory which claims that judges are authorized to appeal to community standards of morality does not collapse into an e t h i c a l theory of law. For example, an external e t h i c a l j u s t i f i c a t i o n of legal practice might conclude that a given community's p o l i t i c a l morality i s fundamentally unjust. However, formal t h e o r i s t s who believe that judges are authorized to appeal to moral considerations cannot defend t h e i r theory merely by showing that i t would be morally desirable that p r a c t i t i o n e r s act i n a p a r t i c u l a r way. Formal t h e o r i s t s must show that the "moral" standards to which judges supposedly appeal are a c t u a l l y the norms accepted by f u l l y informed, competent p r a c t i t i o n e r s . 43 opinions would be more compatible with the fundamental p r i n c i p l e s underlying the doctrine of precedent (Sartorius, 1968, pp. 180-181). The mere fac t that a l e g a l rule i s inconsistent with other more fundamental p r i n c i p l e s does not mean that the rule i s not an acceptable l e g a l r u l e . In ex p l i c a t i n g a formal theory we must be ca r e f u l not to confuse inconsistent and, perhaps, undesirable bona f i d e practices with mistaken accounts of j u d i c i a l duty. I t must be remembered that the primary objective i n formal theorizing about le g a l reasoning i s to describe what i s regarded as acceptable j u d i c i a l practice. The dilemma w i l l be, as Hart suggests, how to d i s t i n g u i s h " e f f o r t s to correct conventional misdescriptions of the j u d i c i a l process" from " e f f o r t s to correct the process i t s e l f " ( P P L , p. 270). A danger i n theorizing about j u d i c i a l reasoning i s that c e r t a i n bona fide practices w i l l be dismissed because i t would be better - i t would promote desirable l e g a l values - i f they were not recognized as bona f i d e practices.17 Although, as I w i l l now explain, i t may often be d i f f i c u l t to determine whether or not a given l e g a l p ractice i s a bona f i d e l e g a l practice. 2.2 Descriptive confusions D i f f i c u l t i e s i n i d e n t i f y i n g bona fide standards within a pr a c t i c e a r i s e because of confusions between e x i s t i n g and pseudo-standards. For example, the fact that a p a r t i c u l a r j u d i c i a l 17 Mackie (1984, pp. 163ff.) suggests that Dworkin i s g u i l t y of t h i s c o n f l a t i o n . Dworkin wants hi s theory to be a "truer d e s c r i p t i o n " of practice than i t a c t u a l l y i s because, i n Dworkin's eyes, i t would be a better system i f h i s theory were more widely followed by judges. 44 behaviour frequently occurs within a practice w i l l sometimes be mistaken as an in d i c a t i o n that i t i s acceptable behaviour. Because of the importance i n formal theorizing of i d e n t i f y i n g bona f i d e standards, we w i l l consider three p i t f a l l s i n some d e t a i l . These p i t f a l l s deal with d i f f i c u l t i e s i n dist i n g u i s h i n g (1) "merely accepted" from "acceptable" practice, (2) "nominally acceptable" from "actually acceptable" practice, and (3) "mistakes" from " d i v i s i o n s " i n practice. (1) "Merely accepted" v. "acceptable" p r a c t i c e . Patterns of behaviour may be accepted by many persons involved with the system and s t i l l be unacceptable behaviour. To say that c e r t a i n behaviour i s accepted may merely s i g n i f y that i t i s tolerated -i t may be fa r below what i s recognized as proper. For example, the use of anabolic steroids by Olympic athletes i s accepted i n many quarters but i s unacceptable under e x i s t i n g rules. This suggests that dismissing an accepted way of behaving on the grounds that i t i s not acceptable practice would s t i l l be regarded as describing proper practice. I t may be, for example, that G r i f f i t h and the American l e g a l r e a l i s t t r a d i t i o n are correct i n -their claim that judges decide cases on the basis of t h e i r p o l i t i c a l ideology. I t may be that t h i s pattern i s widely acknowledged and accepted. I t remains an open question - one addressed by formal theorizing - whether t h i s sort of appeal to p o l i t i c a l values i s authorized. Many causal theories are mistaken for formal theories because the difference between merely accepted and acceptable practice i s overlooked. The fact 45 that c e r t a i n behaviour frequently occurs and i s known to occur does not, on i t s own, make that behaviour proper within the prac t i c e . The analogue i n language i s , f o r example, that the fact that many people misuse, misspell or mispronounce p a r t i c u l a r words does not make those practices acceptable. However, as we w i l l see, widespread use may cause what was once unacceptable to become acceptable practice. One way to begin to resolve the accepted/acceptable d i v i s i o n i s suggested by a d i s t i n c t i o n between des c r i p t i v e and pr e s c r i p t i v e generalizations (Green, 1966, pp. 115-117). A des c r i p t i v e generalization about behaviour implies merely that a p a r t i c u l a r behaviour i s a normal occurrence - that i s , the generalization i s recognized to be an accurate statement of behaviour within a group or practice. For example, i t might be said that judges often r e l y on personal p o l i t i c a l values i n deciding cases. I t would be an open question whether or not t h i s common pra c t i c e was consistent with the standards of proper j u d i c i a l p r a c t i c e . A p r e s c r i p t i v e generalization, on the other hand, implies that behaviour i s "rule following" or "norm obeying" - that i s , the generalization i s recognized to be a statement of the way persons within the group or practice should behave. For example, a high incidence of j u d i c i a l appeal to personal p o l i t i c a l values would be a p r e s c r i p t i v e generalization i f judges were authorized to do so. In other words, a p r e s c r i p t i v e generalization indicates whether or not a given behaviour i s proper behaviour. 46 Hart argues that accepting a rule as a standard f o r behaviour means that the rule provides the reason for one's behaviour (CL, pp. 50-60; PPL, p. 266). A norm or pattern of behaviour q u a l i f i e s as a j u s t i f y i n g reason f o r behaviour only i f i t i s proper to do the sorts of things i d e n t i f i e d by the norm. This explains why the reasons p r a c t i t i o n e r s o f f e r to j u s t i f y t h e i r behaviour are, generally speaking, good indications of the sorts of norms they consider acceptable. One sign of an acceptable standard for j u d i c i a l decision making i s , therefore, j u d i c i a l willingness to c i t e the standard as a reason f o r the decision. To o f f e r an absurd example, consider the theory of sentencing known as "gastronomic jurisprudence" (Cardozo, 1964, p. 332) . I t holds that the degree of j u d i c i a l s a t i s f a c t i o n with breakfast determines the severity of sanctions judges are l i k e l y to hand out that day. This may be an accepted generalization about j u d i c i a l behaviour but i t i s an u n l i k e l y candidate for an acceptable standard for j u d i c i a l decision making, as judges are u n l i k e l y o f f i c i a l l y to c i t e i t as a reason for determining severity of sentences and would be hard put to o f f e r any authorization for i t as a l e g a l l y v a l i d consideration. Written j u d i c i a l opinions are good indications of what informed p r a c t i t i o n e r s would accept since the reasons for judgment i n a case imply the standards of j u d i c i a l reasoning held by the judge o f f e r i n g those reasons.18 I t goes without saying 18 As Postema (1982, pp. 193-194) notes, judges need not have the standards consciously i n mind when they reach t h e i r decisions. I t i s s u f f i c i e n t that the standards be i m p l i c i t i n judges' j u s t i f i c a t i o n s . For the moment, I am ignoring the more 47 that o f f i c i a l statements (e.g., i n t e r p r e t i v e acts, pronouncements from the highest courts, authoritative treatises) about the standards that judges are expected to follow i n j u s t i f y i n g t h e i r decisions are also good indications of acceptable norms. Unfortunately, j u d i c i a l opinions and other o f f i c i a l declarations are r e l i a b l e only to a point, as we s h a l l see when we look at two other p i t f a l l s i n i d e n t i f y i n g acceptable standards within a prac t i c e . (2) "Nominally acceptable" v. "actually acceptable" pr a c t i c e . Often norms w i l l be o f f i c i a l l y sanctioned but not considered to be bona f i d e . For instance, although o f f i c i a l Olympic Games Committee rules p r o h i b i t use of steroids by Olympic athletes, the fact that o f f i c i a l s may know about widespread use and s t i l l f a i l to take corrective steps suggests that t h i s form of drug use may be only nominally unacceptable. In other words, public declarations of the rules may not be accurate statements of the de facto rules. This discrepancy between the nominally and the ac t u a l l y acceptable can be problematic i n j u d i c i a l reasoning. There are b a s i c a l l y two objections to the use of j u d i c i a l opinions and o f f i c i a l l egal documents as evidence of j u d i c i a l standards: judges may be d e c e i t f u l , and j u d i c i a l standards may no longer be acceptable. I t has frequently been suggested that judges f a i l to di s c l o s e the r e a l reasons for t h e i r decisions. According to t h i s pedestrian but nonetheless troubling semantic obstacles to ex p l i c a t i o n of acceptable standards a r i s i n g from ambiguity i n j u d i c i a l statements. 48 view, l e g a l opinions may be l i t t l e more than r a t i o n a l i z a t i o n s framed i n textbook language. The most c y n i c a l version of t h i s theory i s that there i s a s i g n i f i c a n t and widespread gap between the so-called "rules" of j u d i c i a l reasoning and the c r i t e r i a that judges a c t u a l l y employ (Hughes, 1981, pp. 41-43). I t i s suggested that j u d i c i a l reluctance to admit t h i s fact p u b l i c l y stems more from fear of embarrassing the administration of j u s t i c e than from the lack of acceptance of t h i s behaviour within j u d i c i a l c i r c l e s . A less c y n i c a l version of t h i s theory i s that p a r t i c u l a r j u s t i f i c a t i o n s offered i n j u d i c i a l opinions, such as the "true" intent of the l e g i s l a t o r s , are t a c i t l y understood by the l e g a l community as euphemisms for j u d i c i a l d i s c r e t i o n . For t h i s reason, despite repeated references i n U.S. Constitutional opinions to the framers' o r i g i n a l intentions, for example, i t would be a mistake to regard consistency with framers' intentions as an actual j u d i c i a l standard. Whether judges merely pretend to apply law according to the norms implied by the reasons they o f f e r , or are by and large sincere, even i f mistaken, i n t h e i r proffered j u s t i f i c a t i o n s , i s l a r g e l y an empirical question. I f i n d the more cy n i c a l view of j u d i c i a l reasoning - that the practice as a whole i s a deception - highly improbable. I am less c e r t a i n to what extent p a r t i c u l a r standards are d e l i b e r a t e l y c i t e d as a convenient disguise for j u d i c i a l law making. No doubt some judges r a t i o n a l i z e decisions on p a r t i c u l a r grounds; i t i s not c l e a r that judges generally do 49 so and believe i t acceptable to do so.19 In cases where the actual reason d i f f e r s from the p u b l i c l y stated reason, unless the j u d i c i a l community admits (even i f only within i t s own c i r c l e ) that the actual reason i s an acceptable standard, then the p u b l i c l y stated reason i s arguably the l e g a l l y correct standard. Another possible source of discrepancy between nominally and ac t u a l l y accepted practice i s what Dworkin c a l l s "unrecognized anachronisms" (LE, p. 72). This refers to the fact that some standards which at one time were acceptable are no longer so because they have been superseded. I t might be suggested that the "frozen concept" rule - that the meaning of a word i s li m i t e d (or frozen i n time) to i t s meaning at the time the law was passed - i s no longer a rule of Canadian statutory interpretation.2 0 While t h i s hypothesis explains why norms appearing i n l e g a l t r e a t i s e s that have not been r e l i e d upon recently i n j u d i c i a l opinions may no longer be acceptable standards, i t f a i l s to j u s t i f y ignoring norms implied by reasons which are offered i n current j u d i c i a l opinions since recent j u d i c i a l affirmations of a t r a d i t i o n a l rule mean that the implied norm i s currently acceptable to at lea s t some judges. 19 For example, Williams (1982, pp. 76-77) suggests that i t i s "simply human nature" that some judges w i l l f i n d any excuse to di s t i n g u i s h a p r i o r case from the case before them i f they are gravely d i s s a t i s f i e d with the p r i o r case's r u l i n g . S i g n i f i c a n t l y , Williams expresses doubts about t h i s being a common occurrence. 20 Certainly t h i s rule was rejected i n int e r p r e t a t i o n of Canadian c o n s t i t u t i o n a l provisions i n the famous Persons case -Edwards et a l . v. Attorney General of Canada [1930] A.C. 124. 50 I t appears that neither the deception nor the anachronism hypothesis p l a u s i b l y challenges acceptance of reasons i n j u d i c i a l opinions as generally r e l i a b l e indicators of correct standards. The remaining and most troubling challenge i s the i d e n t i f i c a t i o n of j u d i c i a l mistakes. (3) "Mistakes" v. " d i v i s i o n s . " I. have been arguing that the opinions judges o f f e r i n support of t h e i r judgments are prime indicators of acceptable standards i n j u d i c i a l reasoning. But what happens when judges get i t wrong? We cannot presume that every reason judges o f f e r implies norms that are acceptable i n the practice generally. We must di s t i n g u i s h between a judge being moved by arguments that were merely "psychologically persuasive" and by those that were "worthy of persuasion" (Stone, 1964, p. 331) . Given the volume of cases decided each year, i t i s to be expected that an immense number of errors i n j u d i c i a l reasoning w i l l be made. We may be j u s t i f i e d i n characterizing a judge's reason as erroneous i f her reasoning was rejected by a superior court21 or i f her reasoning obviously c o n f l i c t s with c l e a r l y acceptable standards that were offered by judges i n relevantly s i m i l a r s i t u a t i o n s . However, even i f judges are not authorized to invent new standards for applying laws, Anglo-American reliance on precedent means that once decided (correctly 21 A p a r t i c u l a r l y candid repudiation of a judge f o r ignoring the rules of j u d i c i a l reasoning occurred i n Davis v. Johnson [1978] 1 A l l E.R. 1132 at p. 1137. Lord Diplock suggested that Lord Denning's rei n t e r p r e t a t i o n of the doctrine of precedent amounted to "what may be described, I hope without offence, as a one-man crusade with the object of freeing the Court of Appeal from the shackles which the doctrine of stare d e c i s i s imposed on i t s l i b e r t y of decision." 51 or otherwise), j u d i c i a l arguments become part of the law.22 In other words, j u d i c i a l behaviour that was once merely accepted becomes acceptable. Goldstein (1984, p. 101) r e f e r s to t h i s as the " s e l f - v e r i f y i n g q u a l i t y " of l e g a l decisions. Recent accounts of the evolution i n American c o n s t i t u t i o n a l i n t e r p r e t a t i o n suggest that standards of j u d i c i a l reasoning have changed dramatically over the l a s t two centuries (Brubaker, 1987, p. 263). The fact that the standards of j u d i c i a l reasoning may change does not i n i t s e l f pose a problem for formal t h e o r i s t s ; the problems a r i s e when i t i s unclear whether or not a change has occurred. Often there w i l l be s i g n i f i c a n t doubt about whether a given standard i s s t i l l acceptable within a system (Goldstein, 1984, p. 99). I f divergent practices are widespread, i t may not be possible to d i s t i n g u i s h "mistaken" positions from the "correct" position.23 Certainly there are ample indications i n j u d i c i a l opinions of underlying j u r i s p r u d e n t i a l disputes about the proper standards for adjudicating competing claims. For 22 The r o l e of precedent i n se t t i n g standards for j u d i c i a l decision making was i m p l i c i t l y affirmed i n a recent Supreme Court of Canada decision. In arguing the proper i n t e r p r e t a t i o n to be given a provision i n the Charter, lawyers presented numerous " e x t r i n s i c materials" such as t r a n s c r i p t s of House of Commons' debates. J u s t i c e Estey explained that while the Court had received these materials i t had not needed them to reach i t s conclusion. Accordingly, the Court did "not wish to be taken i n t h i s appeal as determining, one way or the other, the propriety in the c o n s t i t u t i o n a l i n t e r p r e t i v e process of the admission of such material i n the records" (Law Society of Upper Canada v.  Skapinker [1984] 9 D.L.R. (4th) 161 at p. 181). 2 3 I t i s important to remember that t h i s i s not a dispute about the decision reached i n a given case. As w i l l be discussed i n chapter f i v e , judges may accept the same general set of standards for deciding a case and s t i l l reach opposing conclusions about the correct d i s p o s i t i o n i n l i g h t of those standards. 52 example, Canadian Supreme Court Ju s t i c e Dickson opened h i s majority opinion i n Rathwell v. Rathwell24 with observations about the uncertain state of matrimonial property law. In h i s view, j u d i c i a l resolution of disputes i n t h i s area had been "bedevilled" i n part by a continuing struggle between r i v a l schools of jurisprudence - between those who would dispense "palm tree j u s t i c e " and those who would search for a "phantom intent."25 The p o s s i b i l i t y of d i v i s i o n s of t h i s sort makes a r t i c u l a t i o n of (some) j u d i c i a l standards problematic - p r a c t i t i o n e r s may have d i f f e r e n t perceptions of what i s acceptable. A lack of homogeneity i n j u d i c i a l decision-making practices cannot be resolved merely by claiming that one set of standards would be more desirable than another. In si t u a t i o n s where s i g n i f i c a n t d i v i s i o n s i n practice e x i s t , Hart's observations about the consequences of disagreements over the fundamental rule of recognition are i n s t r u c t i v e . He explains that rules e s t a b l i s h i n g the v a l i d i t y of primary legal rules must be regarded by the l e g a l community as shared standards. A f a i l u r e i n t h i s respect not merely threatens the e f f i c a c y of a l e g a l system but challenges a l o g i c a l l y necessary condition of our a b i l i t y to speak of the 24 [1979]' 2 S.C.R. 436. 25 "Palm tree j u s t i c e " refers to a manner of deciding cases that ignores the established rules and attempts to reach a j u s t r e s o l u t i o n on the basis of the perceived merit of the competing posi t i o n s . "Phantom intent" refers to a view that cases should be decided on the basis of the h i s t o r i c a l intentions of the law's framers. I t i s often a "phantom" intention because the l e g i s l a t o r s can not have anticipated a l l cases that would eventually come to be decided by the law. 53 existence of a single l e g a l system (CL, pp. 112-113). I t may be that s u f f i c i e n t d i v i s i o n s among p r a c t i t i o n e r s preclude descriptions of a practice i n terms of a unitary set of standards fo r j u d i c i a l reasoning. To summarize the discussion, I have suggested that a formal theory of j u d i c i a l reasoning attempts to explain what competent, informed p r a c t i t i o n e r s within a system would regard as the standards for correct practice. While judges may be unable to conceptualize t h i s c o n s t e l l a t i o n of standards, j u d i c i a l opinions are auth o r i t a t i v e sources of the standards for which a formal theory must account. Further, we cannot assume that acceptable practices w i l l necessarily be consistent or desirable, or that a l l p r a c t i t i o n e r s within a system w i l l share the same standards. Before a r t i c u l a t i n g a p o s i t i v e account of the nature of Anglo-American j u d i c i a l reasoning consistent with these c r i t e r i a , I w i l l consider a challenge to t h i s e x p l i c a t i o n of formal theorizing. 54 Chapter Three: A Rival Account of Legal Theorizing The previous chapter presented an account of formal theorizing about j u d i c i a l reasoning. I claimed that formal theories must account for the "acceptable" norms and standards as recognized by competent Anglo-American p r a c t i t i o n e r s . A r i v a l account of l e g a l theorizing, offered by Dworkin, discusses l e g a l theory b u i l d i n g i n terms of interpretation of s o c i a l practices. For Dworkin, a l l l e g a l t h e o r i s t s must adopt an " i n t e r p r e t i v e a t t i t u d e " - they must make sense of j u d i c i a l behaviour by o f f e r i n g an inte r p r e t a t i o n that portrays j u d i c i a l practices i n t h e i r most favourable l i g h t (LE, p. 226). The most defensible theory of j u d i c i a l reasoning i s that theory which o f f e r s both a pl a u s i b l e i n t e r p r e t a t i o n of the " r e a l i t i e s " of j u d i c i a l p r actice and a better j u s t i f i c a t i o n for the practice generally than do other p l a u s i b l e interpretations. Dworkin c a l l s the f i r s t c r i t e r i o n the " f i t " requirement and the second c r i t e r i o n the "best l i g h t " requirement. In t h i s chapter I defend my account of formal theorizing against objections implied by Dworkin's account of l e g a l t h e o r i z i n g . I begin by c l a r i f y i n g Dworkin's understanding of int e r p r e t a t i o n , p a r t i c u l a r l y i n the context of theorizing about l e g a l p r a c t i c e . Next, Dworkin's two c r i t e r i a for l e g a l theory 55 b u i l d i n g are explicated. The inadequacy of these c r i t e r i a i s shown by exploring why theories that purport to represent pr a c t i c e f a i t h f u l l y need not collapse into theories that serve some other desired end. I argue that Dworkin's " f i t " requirement - the extent to which a theory must account for the recognized standards within a practice - i s not s u f f i c i e n t l y stringent to d i s t i n g u i s h formal theorizing from e t h i c a l theorizing. 1. Dworkin's account of theory building Dworkin emphasizes that l e g a l theorizing i s e s s e n t i a l l y a matter of i n t e r p r e t i n g j u d i c i a l practices. Before considering h i s c r i t e r i a for assessing r i v a l theories we must get c l e a r e r about Dworkin's understanding of the notion of i n t e r p r e t a t i o n . 1.1 Types of interpretation Dworkin employs the term "interpretation", i n at l e a s t three d i f f e r e n t senses. In i t s most general sense - used almost interchangeably with the terms "conception" and "theory"1 -Dworkin uses i t to r e f e r to a general explanation or exposition of something.2 This sense, which I w i l l c a l l " i n t e r p r e t a t i o n as 1 Dworkin's use of the three terms i n apparently synonymous ways i s r e f l e c t e d i n the following passages: "theories that challenge rather than elaborate the connection i t [a previously mentioned "characterization of the concept of law"] assumes between law and the j u s t i f i c a t i o n of coercion;" "Conceptions of law r e f i n e the i n i t i a l , uncontroversial interpretation I j u s t suggested provides our concept of law;" and "In the next several chapters we s h a l l study three r i v a l conceptions of law, three abstract interpretations of our l e g a l practice that I have d e l i b e r a t e l y constructed" (LE, p. 94). 2 The roughly synonymous meanings of interpretation, conception and theory are r e f l e c t e d i n The Oxford English Dictionary (Hereafter referred to as OED), 1986, pp. 500-501, 1467, 3284. 56 explaining," would not discriminate between what I have termed a causal theory and a formal theory of law. Each would q u a l i f y as an i n t e r p r e t a t i o n serving a d i f f e r e n t purpose or providing a d i f f e r i n g perspective.3 Dworkin uses "i n t e r p r e t a t i o n " i n two other and more s p e c i f i c senses. He uses i t to r e f e r to the i d e n t i f i c a t i o n of meaning4 and the creation of meaning.5 I d e n t i f i c a t i o n of meaning i s defined as an act of expounding the meaning of something abstruse; rendering words or authors c l e a r e r or e x p l i c i t (OED. p. 1467). This sense, which I w i l l c a l l " i n t e r p r e t a t i o n as deciphering," presumes that utterances are communications with intended meanings. J o i n t acceptance of a semantic theory, or p a r t i c i p a t i o n within a p a r t i c u l a r language game, to use Wittgenstein's metaphor, enables the interpreter to glean the author's message. While t h i s sense i s o r d i n a r i l y at play when we speak of judges interpreting statutes, i t does not describe i n t e r p r e t a t i o n i n the context of a r t i c u l a t i n g a formal theory of j u d i c i a l reasoning. As I have indicated, theory b u i l d i n g of t h i s 3 This observation i s compatible with Dworkin's d i s t i n c t i o n between theories that adopt an external or an i n t e r n a l point of view - the former look to explain why c e r t a i n patterns of l e g a l arguments develop, while the l a t t e r seek to account for good and bad l e g a l argument (LE, pp. 13-14). As I suggested e a r l i e r , ambiguity about what counts as a "good" le g a l argument leaves unclear whether Dworkin's "i n t e r n a l perspective" discriminates between e t h i c a l and formal theories of j u d i c i a l reasoning. 4 Dworkin's discussions of "conversational i n t e r p r e t a t i o n " (LE, pp. 50-52) and the "speaker's meaning" view of l e g i s l a t i v e intention (LE, pp. 314-315) demonstrate t h i s sense. 5 Dworkin's discussion of "constructive i n t e r p r e t a t i o n " (and therefore h i s view of what i s involved i n " a r t i s t i c interpretation") uses the term i n t h i s sense (LE, pp. 52-65). 57 sort i s not e s s e n t i a l l y an e x p l i c a t i o n of speakers' meaning of words l i k e "law." Dworkin also uses "inte r p r e t a t i o n " to r e f e r to the creation of meaning - i . e . , a construction put upon actions and purposes; a representation according to one's conception of the author's idea (QED, p. 1467). This sense, which I w i l l c a l l " i n t e r p r e t a t i o n as a t t r i b u t i n g , " presumes that phenomena acquire s i g n i f i c a n c e or meaning for an interpreter by v i r t u e of the values, purposes, which the interpreter a t t r i b u t e s to the object of the inquiry. This sense i s i n evidence i n Dworkin's remark: "Once t h i s i n t e r p r e t i v e attitude takes hold . . . people now t r y to impose meaning [his emphasis] on the i n s t i t u t i o n - to see i t i n i t s best l i g h t - and then to restructure i t i n l i g h t of that meaning" (LE, p. 47). For Dworkin and for our present work, a key issue i s which sense(s) of interpretation applies i n the context of l e g a l theory bu i l d i n g and what c r i t e r i a d i s t i n g u i s h acceptable from unacceptable interpretations.6 I t i s important to keep i n mind that l e g a l theory building refers to second-order considerations i n i d e n t i f y i n g and j u s t i f y i n g a theory of j u d i c i a l reasoning. I t i s not to be confused with any p a r t i c u l a r theory of j u d i c i a l reasoning.7 6 Dworkin c l e a r l y recognizes the importance of these concerns: "the analysis of interpretation I construct and defend i n t h i s chapter i s the foundation of the rest of the book" (LE, p. 50). 7 Dworkin argues that legal theory building and j u d i c i a l reasoning i n Anglo-American le g a l systems are s i m i l a r types of i n t e r p r e t i v e enterprises (LE, p. 54). In t h i s chapter I argue 58 As indicated above, Dworkin claims that a l l interpretations must meet two c r i t e r i a : they must f i t the phenomena and they must show the object of the i n t e r p r e t a t i o n i n i t s best l i g h t . That i s , an i n t e r p r e t a t i o n must account, to some degree or another, for the uncontested features of the object of i n t e r p r e t a t i o n and, i n the event of competing plausible accounts, best serve the purposes for objects of that sort. Further e x p l i c a t i o n of these c r i t e r i a depends on the context - on the sense of i n t e r p r e t a t i o n being used and the nature of the object of i n t e r p r e t a t i o n . As Dworkin says, " a l l interpretation s t r i v e s to make an object the best that i t can be, as an instance of some assumed enterprise, and that i n t e r p r e t a t i o n takes d i f f e r e n t forms i n d i f f e r e n t contexts only because d i f f e r e n t enterprises engage d i f f e r e n t standards of value or success" (LE, p. 53). Dworkin o f f e r s "conversational," " s c i e n t i f i c " and " a r t i s t i c " interpretations (LE, pp. 49ff.) as three examples of d i f f e r e n t contexts and, therefore, d i f f e r e n t i m p l i c i t c r i t e r i a for assessing interpretations. In conversational interpretation, "the so-c a l l e d p r i n c i p l e of charity" requires that, when faced with several equally plausible interpretations of a speaker's utterance, an interpreter should assume the most generous meaning that can be attributed to the speaker (LE, p. 53). In science, the best account of a body of data among r i v a l , p l a u s i b l e accounts w i l l be the one exhibiting "standards of theory construction" such as s i m p l i c i t y , elegance and v e r i f i a b i l i t y (LE. that h i s account of theory building i s incorrect and, i n chapter eight, that h i s account of j u d i c i a l reasoning i s incorrect. 59 p. 53). A r t i s t i c i nterpretation s t r i v e s to maximize the value of the piece being interpreted by showing the piece i n i t s best l i g h t (LE, pp. 52-53). Dworkin suggests that interpretation of a r t i s t i c works i s the most appropriate model for l e g a l theory b u i l d i n g . Conversational int e r p r e t a t i o n (what I c a l l e d " i n t e r p r e t a t i o n as deciphering") i s rejected for the reason I suggested e a r l i e r -i . e . , formal l e g a l theorizing i s not at heart an inquiry into what people mean when they speak (LE, p. 50). Dworkin dismisses s c i e n t i f i c i n t e r p r e t a t i o n because unlike law, whose focus i s human actions, science focuses on "events not created by people" (LE, p. 50). Or, as he l a t e r says, science i s concerned with "mere causes" and not with purposes (LE, p. 51). Since the other two types of interpretation are dismissed by Dworkin as inappropriate, he o f f e r s a r t i s t i c i n t e r p r e t a t i o n as the most plau s i b l e candidate for interpretation of s o c i a l practices l i k e law (LE, pp. 54-55, 62-65).8 Dworkin r e l i e s heavily on s i m i l a r i t i e s between int e r p r e t a t i o n of two s o c i a l practices - courtesy and l i t e r a r y c r i t i c i s m - for his ex p l i c a t i o n of the standards and nature of l e g a l theory building (LE, p. 87). Courtesy and s o c i a l practices i n general have rules which guide behaviour and promote i d e n t i f i a b l e i n t e r e s t s or serve recognized purposes (LE, p. 47). 8 This a very weak argument. Showing that h i s i n t e r p r e t i v e approach i s preferable to two other approaches that, by h i s own admission, are obviously inappropriate for i n t e r p r e t a t i o n of s o c i a l practices does not est a b l i s h the merits of Dworkin's approach i n l i g h t of more credible a l t e r n a t i v e approaches. 60 For Dworkin, law and, presumably, courtesy, but not a l l types of s o c i a l phenomena, are "argumentative" - l e g a l p r a c t i c e i s c e n t r a l l y concerned with arguments about the tru t h of propositions of law and what implications follow from these propositions (LE, p. 13).9 Judges and l e g a l t h e o r i s t s t a l k meaningfully about both what i s true about the law and what should be taken to be the law. Dworkin suggests that these de s c r i p t i v e and normative features of l e g a l discourse are p r o f i t a b l y explained i n the "aesthetic hypothesis" (MP, p. 148). Any credible interpretation of an a r t i s t i c work'is i n e x t r i c a b l y linked with standards for good a rt (MP, pp. 150, 152). In l i t e r a r y c r i t i c i s m , when faced with competing interpretations, a c r i t i c w i l l employ his aesthetic standards i n the int e r p r e t a t i o n which shows the l i t e r a r y piece i n i t s best l i g h t . By analogy, "what i s law" i s inex t r i c a b l y linked with "what i s good law." Dworkin i n v i t e s us to accept p a r a l l e l s between the judge and the l i t e r a r y c r i t i c and between the judge and the chain n o v e l i s t (MP, pp. 146-148; LE, pp. 53-55).10 For the moment, l e t us accept 9 I t i s d i f f i c u l t to decipher exactly what Dworkin means when employing coined terms such as "argumentative." The term perhaps acknowledges that l e g a l practice i s a normative a c t i v i t y . As Dworkin explains, persons theorizing from the i n t e r n a l point of view do not want predictions of the l e g a l claims they w i l l make but arguments about which of these claims i s sound and why; they want theories not about how hist o r y and economics have shaped t h e i r consciousness but about the place of these d i s c i p l i n e s i n argument about what the law requires them to do or have. (LE, p. 13) 10 The chain n o v e l i s t i s Dworkin's f a n c i f u l l i t e r a r y metaphor for the r o l e of judges i n j u d i c i a l reasoning. Judges are l i k e n o v e l i s t s who are involved i n a collaborative e f f o r t to develop a work. Both i n h e r i t an unfinished product and are required to add to i t s evolution by making sense of and extending previous e f f o r t s (MP, pp. 158-166). 61 Dworkin's p a r a l l e l between interpreting j u d i c i a l p r a c t i c e and in t e r p r e t i n g a l i t e r a r y work, and examine Dworkin's c r i t e r i a for assessing r i v a l theories of j u d i c i a l reasoning. 1.2 The " f i t " requirement What standards of " f i t " does a r t i s t i c i n t e r p r e t a t i o n imply for a theory of j u d i c i a l reasoning? We can begin answering t h i s question by considering Dworkin's d i s t i n c t i o n between the "preinterpretive" raw data of a s o c i a l practice or a work of art, and the data that any given interpretation of a pr a c t i c e or work w i l l encompass (LE, pp. 65-66). The raw data of a l i t e r a r y work are the words of the text. The analogue i n s o c i a l practices are "the rules and standards taken to provide the tentative content of the p r a c t i c e " (LE, pp. 65-66). Dworkin recognizes that interpreters must agree about the raw data - i n the absence of general agreement as to what constitutes the "text" of a given l i t e r a r y work, interpreters can not presume to o f f e r r i v a l i nterpretations of the same work (LE, p 66). S i m i l a r l y , a precondition of saying that one interpretation of a practice i s better than an other interpretation of that practice i s a shared understanding of the basic components of the pr a c t i c e . As Dworkin says, there must be s u f f i c i e n t "agreement about what practices are l e g a l practices so that lawyers argue about the best i n t e r p r e t a t i o n of the same data" (LE, p. 91). While every interpretation of a p a r t i c u l a r p r a c t i c e or work must begin at t h i s common s t a r t i n g point, any given 62 i n t e r p r e t a t i o n need not account for a l l the raw data of the p r a c t i c e or work. For example, consider Dworkin's suggestion that there i s considerable support for i n t e r p r e t i n g Raymond Chandler's novels as more than simple t h r i l l e r s (MP, p. 151). Dworkin recognizes that a l l segments of the texts ( i . e . , the preinterpretive raw data) can not be accommodated i n such an i n t e r p r e t a t i o n and some elements of the novels may be incompatible with a philosophical reading. Despite these unexplained and inconsistent segments of the text, the more ambitious in t e r p r e t a t i o n i s plausible - i n Dworkin's view there i s s u f f i c i e n t f i t between the text and the i n t e r p r e t i v e account. The " f i t " c r i t e r i o n merely "constrains the-available i n t e r p r e t a t i o n s " (LE/ p. 52) and " w i l l sometimes check" options (LE, p. 255). For example, Agatha C h r i s t i e ' s mystery novels would not sustain an interpretation that they were t r e a t i s e s , say, on the meaning of death because a l l but one or two sentences in each novel would be i r r e l e v a n t to the supposed theme (MP, p. 150). In the context of s o c i a l practices, Dworkin claims that an i n t e r p r e t a t i o n "need not f i t every aspect or feature of the standing practice, but i t must f i t enough for the interpreter to be able to see himself as interpreting that practice, not inventing a new one" (LE, p. 66). For example, an in t e r p r e t a t i o n could not q u a l i f y as an interpretation of Anglo-American l e g a l p r a c t i c e i f i t required denying major, u n i v e r s a l l y recognized features of our l e g a l system, such as the t r a f f i c code (LE, p. 88) or the p r i n c i p l e s of l e g i s l a t i v e competence and supremacy (LE. p. 255) . Presumably, an i n t e r p r e t a t i o n would meet Dworkin's 63 " f i t " requirement even though i t dismissed a considerable number of l e s s fundamental features which were generally regarded by p r a c t i t i o n e r s to be bona fid e aspects of our l e g a l system. The implications of Dworkin's account of f i t go beyond the claim that an inte r p r e t a t i o n would " f i t " l e g a l p r a c t i c e even i f i t was incompatible with numerous "les s e r " l e g a l standards. Also implied i s the p o s s i b i l i t y that an inte r p r e t a t i o n may account for major features or "paradigms" of a practice i n s i g n i f i c a n t l y d i f f e r e n t ways than p r a c t i t i o n e r s would recognize and accept (LE, pp. 88, 91-92). We can see how extensive " r e i n t e r p r e t a t i o n " of major events i s possible by considering a l i t e r a r y example, say, a play where the characters' major focus i s the destruction of the f o r e s t . I t might be suggested that, while the topi c of the characters' discourse i s trees, the play's r e a l t o p i c i s human beings. An interpreter could claim arguably that t h i s play i s r e a l l y about the clash between technology and nature, or that i t i s r e a l l y a warning about the impending destruction of humanity. Thus, while an interpretation of the play could not ignore the extensive discussion about the forests and s t i l l f i t the play, i t could involve r a d i c a l r e i n t e r p r e t a t i o n of those discussions and s t i l l f i t the play. Analogously, an in t e r p r e t a t i o n of l e g a l p r a c t i c e which denied outright that, say, the p r i n c i p l e of l e g i s l a t i v e supremacy was a bona fid e l e g a l standard would not f i t Anglo-American practice. However, an i n t e r p r e t a t i o n could characterize that p r i n c i p l e i n ways s i g n i f i c a n t l y at odds with generally accepted views and s t i l l meet the f i t c r i t e r i o n (LE, p. 64 66). S i m i l a r l y , an interpretation would not f a i l Dworkin's f i t requirement merely because i t characterized j u d i c i a l opinions i n ways that "would have amazed the judges whose decisions i t proposes to inte r p r e t (LE, p. 285). These p o s s i b i l i t i e s a r i s e because interpretations of s o c i a l practices are not neutral reports of what p r a c t i t i o n e r s think t h e i r p r a c t i c e requires, but often competing accounts of what that practice requires (LE, pp. 64-65) . Thus, Dworkin's " f i t " c r i t e r i o n admits interpretations of le g a l p r a c t i c e that (1) are inconsistent with acceptable "le s s e r " standards and (2) imply substantial reworking of fundamental norms and recognized ways of behaving.11 Given the l a x i t y of t h i s "rough threshold requirement" that merely the "brute facts of l e g a l h i s t o r y " be accounted for (LE, p. 255), i t i s to be expected that several ( i f not many) interpretations of a p a r t i c u l a r practice are possible. 1.3 The "best l i g h t " requirement Dworkin o f f e r s the " j u s t i f i c a t i o n " or "best l i g h t " requirement to adjudicate among those r i v a l interpretations which " f i t " l e g a l practice (LE, pp. 52-53). Each in t e r p r e t a t i o n of a s o c i a l p ractice w i l l impute d i f f e r e n t values (or at le a s t ascribe d i f f e r i n g p r i o r i t i e s to values). Every s o c i a l p r a c t i c e serves 11 In the terminology I suggest, an e t h i c a l theory of law would q u a l i f y as an interpretation of current l e g a l practice by Dworkin's standards as long as the recommendations contained i n that e t h i c a l theory could be seen to be amendments or reforms to recognized practices and ideals (as opposed to a a c a l l f or a new le g a l order). 65 some purpose (or set of purposes). Therefore the "best" from among r i v a l interpretations w i l l be the one which posits the most f l a t t e r i n g account of that practice i n l i g h t of the broader point or values of the enterprise, as understood by the interpreter of that p a r t i c u l a r practice (LE, pp. 87-88). As Dworkin suggests, "constructive in t e r p r e t a t i o n i s a matter of imposing purpose on an object or practice i n order to make i t the best possible example of the form or genre to which i t i s taken to belong" (LE, p. 52). That i s , among theories of law each with t h e i r own imputed purposes, the best theory i s that which best serves the purpose(s) of law (LE, pp. 93-94). Dworkin extends the p a r a l l e l between in t e r p r e t a t i o n of an a r t i s t i c work and the a r t i s t i c values within a community to law. Interpretations of law, which i s undeniably a p o l i t i c a l i n s t i t u t i o n , are i n e x t r i c a b l y linked with views of p o l i t i c a l morality - with the moral standards of the p o l i t i c a l community within which the l e g a l system operates. As he says: "the most general point of law, i f i t has one at a l l , i s to e s t a b l i s h a j u s t i f y i n g connection between past p o l i t i c a l decisions and present coercion" (LE, p. 98). Rival conceptions of law must be adjudicated on p o l i t i c a l grounds: the "model of r u l e s " account i s a better i n t e r p r e t a t i o n than other accounts of j u d i c i a l reasoning only i f the purposes i t imputes to l e g a l practice provide stronger j u s t i f i c a t i o n within Anglo-American p o l i t i c a l morality for law's coercive force (LE, pp. 98-99). The "best" l e g a l theory i s that theory which shows our l e g a l system i n the most \ 66 f l a t t e r i n g l i g h t - that i s , provides the strongest j u s t i f i c a t i o n , given the community's p o l i t i c a l ideals, for the l e g a l system's continued existence (LE, p. 256). 2. Inadequacies i n Dworkin's account There i s nothing necessarily problematic about Dworkin's i d e n t i f i c a t i o n of theory building about s o c i a l practice as a form of "constructive" interpretation (LE, p. 52), or what I have c a l l e d " i n t e r p r e t a t i o n as a t t r i b u t i n g . 1 1 Formal theorizing i s constructive because i t requires abstraction or model bu i l d i n g wherein sense i s imputed or attributed, and i n a fundamental way the sense or si g n i f i c a n c e that emerges depends on the purposes for i n t e r p r e t i n g . For example, the account of j u d i c i a l reasoning I propose explains Anglo-American practice i n terms of a model of rules and i n p a r t i c u l a r i n terms of secondary rules creating three (largely) discrete modes of reasoning ( i . e . , reasoning from i n t e r p r e t i v e guidelines, p r i o r cases and p r i n c i p l e ) . The point of my inquiry, as I have suggested, i s to f a i t h f u l l y represent the standards judges employ when applying the law properly. A d i f f e r e n t type of theory, say a causal theory, might explain j u d i c i a l p r a c t i c e i n terms of professional, community and personal influences. Its purpose might be to represent the psychological determinants of j u d i c i a l behaviour. According to Dworkin's account of le g a l theory building, i n t e r p r e t e r s ' purposes shape interpretations of a r t i s t i c works and s o c i a l practices i n a fundamental way (LE, p. 52). I t i s not 67 merely that t h e o r i s t s determine whether a formal theory i s to be preferred over a causal theory: for Dworkin, the interpreter's convictions of good art and, by analogy, good law determine what the object of the interpretation " r e a l l y " s i g n i f i e s . D i f f e r e n t i n t e r p r e t e r s ' conceptions of what would make practice more j u s t i f i a b l e w i l l determine what comes to be accepted as proper pr a c t i c e . As we have seen, Dworkin draws heavily on the ways i n which in t e r p r e t a t i o n s of l i t e r a r y works are i n e x t r i c a b l y linked with i n t e r p r e t e r s ' conceptions of good l i t e r a t u r e . While there are noteworthy p a r a l l e l s between i n t e r p r e t a t i o n of l i t e r a r y works and s o c i a l p r a c t i c e s , there are important differences which Dworkin apparently f a i l s to appreciate. This overextended analogy leads Dworkin to exaggerate the degree to which formal t h e o r i s t s impute value to legal p r a c t i c e " i n order to make i t the best example of the form or genre to which i t i s taken to belong" (LE, p. 52). The l i m i t s of Dworkin's analogy between a r t i s t i c i n t e r p r e t a t i o n and theorizing about j u d i c i a l reasoning can be seen i f we d i s t i n g u i s h two basic types of i n t e r p r e t i v e purposes: " f i d e l i t y " and "instrumental use." 2.1 F a i t h f u l v. instrumental representations In some situations, interpretations are motivated by a desire f o r f i d e l i t y - that i s , the i n t e r p r e t e r ' s primary purpose i s to provide a perspicuous, f a i t h f u l representation of, say, the basic features or operations of a p a r t i c u l a r phenomenon or state of a f f a i r s . A c i t y map, for example, purports accurately to portray the network of streets within a given municipality. This 68 type of interpretation can be contrasted with interpretations having instrumental motives - that i s , interpretations whose primary purpose i s to serve some practical end or to promote an ideal. For example, the typical, hand-drawn "directions" map does not fa i t h f u l l y represent the typography of the area between the place of departure and the destination. Rather, only features l i k e l y to assist in guiding the traveller are depicted. I am not suggesting that city maps do not serve this purpose, simply that the primary criterion for selection of features on them is to provide a complete, faithful representation of some aspect of the reported area. Dworkin implicitly acknowledges the distinction between f i d e l i t y and instrumentality in interpretation in his discussion of r i v a l interpretations of The Merchant of Venice. Dworkin suggests that a director might interpret Shylock either by portraying what, most plausibly, were Shakespeare's conscious impressions of the character or by portraying the character in a way that advances what, most plausibly, were Shakespeare's overall intentions regarding the play (LE, pp. 55-56). In considering the merits of these alternative interpretations Dworkin suggests: " ( f ) i d e l i t y to Shakespeare's more discrete and concrete opinions about Shylock, ignoring the effect his vision of that character would have on contemporary audiences, might be treachery to his [Shakespeare's] more abstract a r t i s t i c purpose" (LE, p. 56). For example, i t may be that Shakespeare's views about Shylock were bigoted. Representing Shylock from an anti-69 Semitic perspective might prevent modern audiences from appreciating Shakespeare's more fundamental theme of the f o l l y of greed. In other words, a d i r e c t o r might deviate from the playwright's actual views on a character i n order to make the production more appealing to contemporary audiences, and instead, might o f f e r an interpretation consistent with the playwright's more general a r t i s t i c intentions i n writing the play. Thus, the di r e c t o r ' s a r t i s t i c values determine which of the playwright's intentions to represent i n the production. While Dworkin recognizes the notion of f a i t h f u l representations, he leaves the dimensions or features of the object that an in t e r p r e t a t i o n w i l l represent to be determined by the interpreter. As Dworkin's example suggests, the difference between the two basic types of in t e r p r e t i v e purposes may be mainly a matter of focus. They need not be mutually exclusive - any p a r t i c u l a r i n t e r p r e t a t i o n may aspire f a i t h f u l l y to represent some phenomenon and to have instrumental use i n another context. In fact, we could not c a l l an account of a phenomenon an in t e r p r e t a t i o n unless i t attempted (even i f unsuccessfully) to represent some feature, aspect or dimension of the phenomenon. For example, t o u r i s t maps of a p a r t i c u l a r region often indicate routes to, and locations of, the major points of in t e r e s t only. I f the object of the inte r p r e t a t i o n - the phenomenon under study - i s the geographical region, the interpretation i s most p l a u s i b l y seen as having primarily an instrumental purpose because i t depicts only 70 those features l i k e l y to enhance tourism.12 I f the map depicts a l l the major t o u r i s t s spots (or at least aspires to that goal), i t could be regarded as a representative i n t e r p r e t a t i o n of major t o u r i s t spots i n the area. Notice that a s h i f t i n the focus of the i n t e r p r e t a t i o n (e.g., from the geographical region as a whole to t o u r i s t a t t r a c t i o n s i n the region) a l t e r s the most l i k e l y a s c r i p t i o n of purpose. A map that i s , say, a good f a i t h f u l representation of a single dimension of a region may also serve as a good instrumental interpretation of the region as a whole.13 I t may be that representing Shakespeare's more general a r t i s t i c intentions i n The Merchant of Venice makes the play a better (contemporary) piece, but i t would be a mistake to claim that t h i s production attempts f a i t h f u l l y to represent a l l dimensions of Shakespeare's intentions. The contingent fact that Shakespeare's broader a r t i s t i c intentions cannot be represented in the same production as his conscious impressions of Shylock does not mean that only one of these intentions are what Shakespeare " r e a l l y " intended. I f the di r e c t o r ' s mandate i s to represent Shakespeare's intentions f a i t h f u l l y then some way must be found to portray these apparently c o n f l i c t i n g intentions -perhaps by mounting two productions of the play. Merely because 12 I t could of course be seen as a self-consciously incomplete representation of the region. 13 Caricatures of p o l i t i c a l p e r s o n a l i t i e s , for example, d e l i b e r a t e l y exaggerate s p e c i f i c aspects of the figure to serve some end (e.g., to amuse or to persuade the reader) and i n t h i s respect they have instrumental motives. They succeed, however, only because the physical exaggeration of an in d i v i d u a l ' s features represents a recognizable dimension of his personal or p o l i t i c a l nature or predicament. 71 a s i n g l e production can not portray c e r t a i n dimensions of the phenomenon i t i s expected f a i t h f u l l y to represent, does not mean that what constitutes a f a i t h f u l representation i s determined by what the interpreter regards as the more f l a t t e r i n g or desirable representation. The f a c t that incompatible dimensions of authors' intentions are r a r e l y portrayed suggests that i n l i t e r a r y c i r c l e s there i s l i t t l e perceived value i n representing a l l features of an author's intentions. T y p i c a l l y , one dimension of an author's intentions i s chosen because that dimension advances values that the interpreter considers worth promoting. However, i f an interpreter purports f a i t h f u l l y to represent a l l s i g n i f i c a n t dimensions of some object, then he cannot se l e c t one aspect because i t would be more f l a t t e r i n g or because to portray a l l facets would require multiple representations. The s i g n i f i c a n c e of t h i s point can be appreciated i f we consider the way i n which maps of the world represent c e r t a i n dimensions of the world's features and not others. The Mercator and Peters projections of the world are good i l l u s t r a t i o n s of r i v a l interpretations. In the sixteenth century, Gerhard Kremer created the Mercator projection (mercator means merchant) to a s s i s t explorers and merchants i n p l o t t i n g t h e i r navigational courses. Accordingly, the Mercator projection, with i t s " f i d e l i t y of axis" (The New  I n t e r n a t i o n a l i s t . March 1989), locates countries i n t h e i r proper 72 d i r e c t i o n a l relationships with other countries.14 However, i t achieves t h i s r e s u l t at the expense of exaggerating the s i z e of countries nearer the poles.15 A more recent projection by Dr. Peters depicts countries i n proportion to t h e i r actual land masses, but d i s t o r t s the countries' shapes. Dr. Peters' purpose was to combat what he considered to be the Eurocentric view of the world a r i s i n g from Mercator's under representation of the s i z e of developing countries (The New I n t e r n a t i o n a l i s t , March 1989). Depending upon our purposes, we might r i g h t l y adopt one projection over the other. However, we could not claim to do so because one projection was the more f a i t h f u l representation of the world: the world i s not r e a l l y l i k e e i t h e r of the projections, although aspects of the world are f a i t h f u l l y represented by each projection. We would be wise to resort to instrumental considerations when deciding which of the two imperfect representations best serves our current need for a world map. (If we require a f a i t h f u l representation of the world we should use a globe.) Thus an interpreter's (or user's) instrumental purposes determine which in t e r p r e t a t i o n i s adopted only i f the interpreter ceases to be concerned about f a i t h f u l l y representing the (entire) phenomenon. Before considering Dworkin's counter-arguments to my claim that i n t e r p r e t e r s ' purposes do not determine what counts as 14 F i d e l i t y of axis implies that a country that would be reached by heading, say, northeast from the person's physical location would be shown on the Mercator projection to be to the northeast of the person's location of the map. 15 For example, although South America i s twice the area of Europe, on the map i t i s shown as s l i g h t l y smaller than Europe. 73 correct practice, i t may be useful to c l a r i f y the r e l a t i o n between the educational motivation for theorizing about j u d i c i a l reasoning and the f i d e l i t y / i n s t r u m e n t a l i t y d i s t i n c t i o n . In the previous chapter I claimed that a formal theory of j u d i c i a l reasoning has f i d e l i t y as i t s primary purpose - the point of the enterprise i s to represent as accurately as possible the norms and standards which govern Anglo-American judges i n t h e i r adjudicative r o l e . I t might be suggested that the educational purposes for developing a theory of j u d i c i a l reasoning would be better served i f "accuracy" were s a c r i f i c e d f or some other value. For example, i f we want to foster greater respect for the administration of j u s t i c e , perhaps we ought to provide as f l a t t e r i n g an account of j u d i c i a l practice as can be pl a u s i b l y a t t r i b u t e d to our leg a l system. I f t h i s were the case, we would no longer be committed to providing a f a i t h f u l account and would s h i f t to o f f e r i n g an instrumental representation. For several reasons, I believe that a f a i t h f u l account better serves our educational purposes than an instrumental account. These reasons include the need for students to understand what constitutes current proper p r a c t i c e l 6 and students' r i g h t to make up t h e i r own minds as to the extent to which current practices are worthy of t h e i r respect.17 Thus, while an interpreter's purpose determines which type of theory i s most appropriate, i f that 16 This rationale i s explored i n the concluding chapter. 17 See Case (1985, pp. 21-26) for reasons why students should be allowed to come to t h e i r own conclusions about contentious legal issues. 74 purpose requires a f a i t h f u l representation an interpreter's purpose does not determine what counts as the pra c t i c e . While Dworkin accepts, i m p l i c i t l y at least, the d i s t i n c t i o n between f i d e l i t y and instrumentality, he would claim that the interpreter's sense of purpose determines the pra c t i c e i n a d i f f e r e n t way. The interpreter's perception of the purpose of the practice, not the interpreter's purpose for the inquiry, determines what i s to be taken as the practice properly understood.18 So c i a l practices, unlike the physical world, do not have an independent r e a l i t y . The "raw data" of a s o c i a l p r actice depend on what p r a c t i t i o n e r s accept as requirements of t h e i r p r a c t i c e i n a way that the physical world does not depend i n d i v i d u a l s ' b e l i e f s . For example, the fact that explorers thought that the world was round did not make i t round, whereas the fact that judges believe that j u d i c i a l p r actice requires a ce r t a i n conclusion may mean that that conclusion i s required. Furthermore, p r a c t i t i o n e r s are often mistaken about what t h e i r p r actice requires, and r i v a l interpretations of what i s required are possible. For these reasons, Dworkin suggests that determination of the requirements of a practice - what the prac t i c e " r e a l l y " requires - involves deciding which plausible 18 Dworkin believes that the interpreter's sense of the best o v e r a l l purpose of the practice determines what counts as the pra c t i c e . For example, Dworkin argues that "conventionalism" f i t s l e g a l p ractice badly, but he goes on to consider whether or not conventionalism provides "an a t t r a c t i v e picture of law's point" (LE/ P- 150). Since Dworkin believes that the point of law underlying conventionalism i s not a t t r a c t i v e , he concludes "we have no reason to s t r a i n to make i t [conventionalism] f i t " (LE p. 150). 75 i n t e r p r e t a t i o n of the practice best serves the most defensible conception of the point of the practice (LE, p. 65). Before I explain how Dworkin's account exaggerates the importance of inte r p r e t e r s ' perceptions of the point of a prac t i c e and d i s t o r t s the ro l e of p r a c t i t i o n e r s ' intentions i n determining what a practice amounts to, l e t us consider Dworkin's explanation why each interpreter's sense of the best o v e r a l l purpose of a s o c i a l practice determines what the pra c t i c e r e a l l y requires. A p a r t i c i p a n t interpreting a s o c i a l practice, according to that view [constructive i n t e r p r e t a t i o n ] , proposes value for the practice by describing some scheme of i n t e r e s t s or goals or p r i n c i p l e s the practice can be taken to serve or express or exemplify. Very often, perhaps even t y p i c a l l y , the raw behavioural data of the practice - what people do i n what circumstances - w i l l underdetermine the a s c r i p t i o n of value: those data w i l l be consistent, that i s , with d i f f e r e n t competing ascr i p t i o n s . One person might see i n the practices of courtesy a device for ensuring that respect i s paid to those who merit i t because of s o c i a l rank or other status. Another might see, equally v i v i d l y , a device for making s o c i a l exchange more conventional and therefore less i n d i c a t i v e of d i f f e r e n t i a l judgments of respect. I f the raw data do not discriminate between these competing interpretations, each interpreter's choice must r e f l e c t his view of which interpretation proposes the most value for the prac t i c e - which one shows i t i n the better l i g h t , a l l things considered. (LE, pp. 52-53) As t h i s passage indicates, Dworkin believes that the accepted facts of a practice w i l l t y p i c a l l y underdetermine any in t e r p r e t a t i o n of a practice. This implies that i t w i l l generally be the case that either (1) two or more d i f f e r e n t theories w i l l account equally well for v i r t u a l l y a l l accepted facts of a pr a c t i c e ; or (2) d i f f e r e n t theories w i l l account for some, or much, of the accepted facts of a practice, but no theory 76 w i l l account for v i r t u a l l y a l l accepted f a c t s . As I w i l l explain, the f i r s t option - that of equally p l a u s i b l e , complete accounts of j u d i c i a l reasoning - i s not p a r t i c u l a r l y l i k e l y . When we understand why Dworkin believes that t h i s option i s t y p i c a l , we w i l l see why h i s exp l i c a t i o n of what counts as equally representative interpretations i s unacceptable. The second option - that of equally plausible, incomplete accounts of j u d i c i a l reasoning - i s a more l i k e l y p o s s i b i l i t y . However, as I w i l l argue, i t does not j u s t i f y the conclusion that Dworkin asserts, namely that each interpreter determines what the practice requires by adopting the more f l a t t e r i n g account of the practice as a whole. 2.2 Equally plausible, complete accounts Dworkin suggests that several interpretations may provide equally p l a u s i b l e , complete accounts of a pr a c t i c e . The p o s s i b i l i t y of multiple accounts of a phenomenon i s e a s i l y seen i n the context of a r t i s t i c interpretations. For example, a character i n a play might say "I f e e l f i n e . " In inte r p r e t i n g what t h i s comment means, i t may be plausibly suggested that the character i s sincerely reporting h i s physical or emotional state, or that he i s a c t u a l l y hiding h i s pain i n order to avoid causing others to worry about him. The greater the va r i e t y of interpretations that any p a r t i c u l a r comment or behaviour can sustain, the more l i k e l y i t w i l l be that the l i t e r a r y piece as a whole can be interpreted i n several ways at le a s t . The int e r p r e t a t i o n that i s eventually attributed to a p a r t i c u l a r 77 comment w i l l depend upon i t s p l a u s i b i l i t y given the larger context of the play and the interpreter's convictions about the a r t i s t i c merit of r i v a l interpretations. Does the m u l t i p l i c i t y of interpretations of the " r e a l " meaning of a l i t e r a r y character's comments or behaviour provide good reason for b e l i e v i n g that multiple interpretations of p a r t i c i p a n t s ' comments and behaviour i n a s o c i a l practice are l i k e l y ? Dworkin believes that there i s a p a r a l l e l because the most defensible interpretation of what a s o c i a l p r a c t i c e " r e a l l y " requires may be s i g n i f i c a n t l y d i f f e r e n t from what pa r t i c i p a n t s think the practice requires. As he says, a t h e o r i s t ' s claims about the demands of courtesy are "not neutral reports about what the c i t i z e n s of courtesy think but claims about courtesy competitive with t h e i r s " (LE, p. 64). This remark i s ambiguous since i t f a i l s to d i s t i n g u i s h between speculative and a u t h o r i t a t i v e accounts of a practice.19 In the previous chapter, i t was noted that participants may not be competent to o f f e r second-order judgments about the nature of t h e i r p r a c t i c e . 19 We can d i s t i n g u i s h between p r a c t i t i o n e r s o f f e r i n g a u t h o r i t a t i v e and speculative accounts of the requirements of t h e i r p r a c t i c e . For example, judges or other observers w i l l sometimes conjecture about a p a r t i c u l a r set of l e g a l practices. These explanations are not authoritative i f the i n d i v i d u a l s are not speaking i n an o f f i c i a l capacity. On the other hand, in the course of j u s t i f y i n g a decision, i f the Supreme Court accepts an hypothesis about the point of a body of precedent, that explanation would be authoritative. Since the explanation i s offered by the court acting within i t s authorized capacity, the j u d i c i a l pronouncement establishes (or confirms) the v a l i d i t y of the explanation. I t was suggested i n the previous chapter that the reasons judge o f f e r i n t h e i r opinions constitute the standards within the practice, whereas speculations about useful ways to conceptualize t h e i r practices do not. 78 However, unless we believe that p r a c t i t i o n e r s are engaged i n deception, the standards implied by p r a c t i t i o n e r s ' reasons for t h e i r behaviour as they conform to the practice, constitute the requirements of the practice.20 Consider the example of a man who, out of courtesy, t i p s h i s hat as a woman passes by. Dworkin would have us believe that the mere behaviour - the t i p p i n g of the hat - comprises the "raw data" that an i n t e r p r e t a t i o n of the pra c t i c e of courtesy must explain.21 This i s an inadequate 20 J u s t i f i c a t i o n s for j u d i c i a l behaviour may be offered at a "micro" or a "macro" l e v e l . Reasons offered at a micro l e v e l are explanations of i n d i v i d u a l norms and p a r t i c u l a r features of a l e g a l p r a c t i c e - accounts of a narrow point of law, a s p e c i f i c l e g a l p r i n c i p l e , or a single j u d i c i a l decision. Explanations at a macro l e v e l r e f e r to general descriptions of numerous features or broad aspects of le g a l practice - an account of a body of law, purposes of the practice as a whole, or fundamental p r i n c i p l e s such as the rule of law. Thus, an account of the purpose of a p a r t i c u l a r r u l e would be a micro-level explanation and an account of the purpose of a c o n s t e l l a t i o n of rules, perhaps the practice as a whole, would be a macro-level explanation. Some macro-level accounts are authoritative, others are not; the same applies to micro-level accounts. For example, the oath that judges swear when taking o f f i c e i s an authoritative macro-level account of t h e i r role's general purposes and guiding p r i n c i p l e s . Levinson (1978, p. 1088) reports a case where two judges f e l t compelled to concede the c o n s t i t u t i o n a l i t y of f u g i t i v e slave laws despite the moral bankruptcy of those laws. The judges explained that t h e i r o b l i g a t i o n was "to do what they had agreed to do when they were made judges, or quit the bench." 21 There are several reasons for suspecting that Dworkin does not consider the reasons judges and other l e g a l o f f i c i a l s o f f e r for t h e i r actions as an e s s e n t i a l part of the phenomena to be accounted f o r . Dworkin describes phenomena as "raw behaviour data" - r e f e r r i n g to "what people do i n what circumstances" ( L E , p. 42). In exploring the p l a u s i b i l i t y of Posner's "economic" theory of law, Dworkin suggests that an int e r p r e t a t i o n need not be consistent with past j u d i c i a l a ttitudes or opinions, with how judges saw what they were in fac t doing. . . . [ I ] t seems more reasonable to regard that kind of f i t as one desideratum that might be outweighed by others i n deciding whether an in t e r p r e t a t i o n f i t s well enough. So we cannot re j e c t the economic in t e r p r e t a t i o n on the sole grounds that i t would have amazed the judges whose decisions i t proposes to interpret. (LE, pp. 284-285) 79 account of the action required by the practice since i t f a i l s to include the reason why the man tipped h i s hat. Understanding the requirement that courtesy places on t h i s man depends on our learning why he tipped h i s hat - whether i t was because she was a female or, perhaps, because she was h i s s o c i a l superior or his boss. In other words, the reason for the behaviour constitutes the standard of behaviour required by the pra c t i c e . I t i s not, as Dworkin suggests, the prerogative of the interpreter to impute a reason which would show the practice i n i t s "best" l i g h t . A major reason for Dworkin's claim that p r a c t i t i o n e r s ' reasons are not co n s t i t u t i v e of the standards for proper practice i s that p r a c t i t i o n e r s often disagree about the standards. I f an interpreter i s not free to sel e c t the most meritorious account of the standards of a practice, how are disputes among p r a c t i t i o n e r s to be resolved? Before answering t h i s question we must remind ourselves that the issue i s with p r a c t i t i o n e r s ' authoritative, not speculative, accounts of practice. Furthermore, at t h i s stage we are concerned with p r a c t i t i o n e r s ' disagreements over the acceptable standards within a practice, and not with disputes about the app l i c a t i o n of those standards i n p a r t i c u l a r s i t u a t i o n s . (Understanding the standards required of judges when they apply the law aids i n understanding what the law requires in p a r t i c u l a r s i t u a t i o n s , but a formal theory of j u d i c i a l reasoning i s concerned with e x p l i c a t i o n of the standards themselves.)22 22 In chapter eight, Dworkin's conflation of leg a l standards with the app l i c a t i o n of those standards i n p a r t i c u l a r s i t u a t i o n s w i l l be discussed. 80 Dworkin i s correct that there w i l l not be unanimity among p r a c t i t i o n e r s about the requirements of a pra c t i c e . We can determine how these disputes should be dealt with once we understand the d i f f e r e n t explanations for p r a c t i t i o n e r s ' disagreements. Disagreements about standards a r i s e because some ind i v i d u a l s are mistaken, because of d i v i s i o n s i n the practice, and because of unsettled areas of practice. As indicated i n the previous chapter, i n d i v i d u a l p r a c t i t i o n e r s may be mistaken about proper standards. Individual p r a c t i t i o n e r s are mistaken when the reasons they o f f e r for t h e i r behaviour i n a p a r t i c u l a r s i t u a t i o n are at odds with the reasons provided by the general community of competent p r a c t i t i o n e r s or by an authorized regulatory body (e. g., the Supreme Court). Perhaps these indivi d u a l s have not c o r r e c t l y learnt the rules of the practice or perhaps they do not claim to adhere to a l l the recognized rules operating within a given s o c i a l practice.2 3 Only when i s o l a t e d p r a c t i t i o n e r s ' authoritative accounts of the standards are inconsistent with a widely shared consensus or a superior authority can t h e i r comments be leg i t i m a t e l y dismissed as mistaken. Disputes about proper standards also a r i s e because of widespread differences of opinion regarding i n t e r n a l d i v i s i o n s about the requirements of a practi c e . In other words, apparently 23 For example, i n chapter two i t was suggested that Lord Denning's account of the doctrine of stare d e c i s i s was mistaken. Superior judges have disapproved of Lord Denning's "heterodox views" (Davis, at p. 1139) and commentators have referred to him as a "strong-minded maverick" (MacCormick, 1978, p. 242). 8 1 equally authoritative factions within the p r a c t i c e w i l l accept r i v a l norms. For example, i n a given s i t u a t i o n , one body of judges may consistently apply a set of standards d i f f e r e n t from those applied by another body of judges. When opinions are divided i n t h i s way, i f the theory i s to be f a i t h f u l to the pr a c t i c e as currently conducted, i t must accommodate each faction's account of proper standards. I t may be that p r a c t i t i o n e r s w i l l eventually resolve these inconsistencies within t h e i r practice, but a t h e o r i s t cannot j u s t i f i a b l y dismiss standards recognized by a large group of p r a c t i t i o n e r s merely because these standards do not f i t with the t h e o r i s t ' s conception of the o v e r a l l point of the pract i c e . At times the d i s t i n c t i o n between mistakes and d i v i s i o n s w i l l not be obvious. For example, perhaps the Supreme Court has yet to consider the propriety of a p a r t i c u l a r j u d i c i a l standard or has provided an inconclusive answer, and there are no obvious patterns among the community of judges. In these si t u a t i o n s , i t would be appropriate to conclude that the requirements are unsettled - that i s , there i s no convincing i n d i c a t i o n of which standards regulating a p a r t i c u l a r area of practice are acceptable to competent p r a c t i t i o n e r s . While a theory purporting f a i t h f u l l y to represent practice w i l l often imply a p a r t i c u l a r resolution to unsettled areas of a practice, t h i s anomaly-resolving tendency i s not tantamount to Dworkin's claim that the interpreter determines what counts as good practi c e . A formal theory must f a i t h f u l l y account for the s e t t l e d requirements of a pract i c e . There i s no 82 slippage to instrumental representation by suggesting, once the most p l a u s i b l e theory of s e t t l e d practice i s established, that disputes over unsettled practice be resolved i n a manner consistent with that theory of proper prac t i c e . Another reason why Dworkin r e s i s t s accepting p r a c t i t i o n e r s ' intentions as authoritative indications of the requirements of a practice i s that p r a c t i t i o n e r s ' accounts of t h e i r conscious reasons for behaviour do not exhaust what can p l a u s i b l y be characterized as the reasons f o r t h e i r behaviour. Dworkin uses the example of an imagined conversation with F e l l i n i , about his f i l m La Strada. to draw a d i s t i n c t i o n between what an author consciously intends and "finding a purposeful account of his behaviour he i s comfortable i n ascribing to himself" (LE, pp. 56-58). In the f i c t i o n a l conversation F e l l i n i admits that a c l a s s i c a l legend, which he had not previously considered, captures feelings he had about a p a r t i c u l a r character while fi l m i n g . Dworkin suggests that F e l l i n i now recognizes t h i s f e e l i n g "as part of the f i l m he made" (LE, p. 56). In other words, "(a)n insight belongs to an a r t i s t ' s intention, on t h i s view, when i t f i t s and illuminates h i s a r t i s t i c purposes i n a way he would recognize and endorse even though he has not already done so" (LE, p. 57). Presumably, t h i s example confirms that what comes to be legi t i m a t e l y accepted as the " r e a l " intention i s not what an author (or judge) a c t u a l l y intended by a l i t e r a r y piece (or a decision), but what that i n d i v i d u a l should have 83 intended according to the interpreter's best reading of the outcome. As Dworkin says: This brings the interpreter's sense of a r t i s t i c value into hi s reconstruction of the a r t i s t ' s intentions i n at l e a s t an e v i d e n t i a l way, for the interpreter's judgment of what an author would have accepted w i l l be guided by h i s [the interpreter's] sense of what the author should have accepted, that i s , h i s sense of which reading would make the work better and which would make i t worse. (LE, p. 57) In short, Dworkin would have us believe that the most defensible in t e r p r e t a t i o n of an author's intention amounts to what the interpreter considers to be the most desirable i n t e r p r e t a t i o n of that author's intention. This conclusion glosses over the difference between asserting that an author "should accept" an explanatory account of his intentions and that an author "should accept" an evaluative account of h i s intention. An explanatory account addresses the accepted facts of the phenomenon, and provides the most plausible theory about the causes of, or i n t e r r e l a t i o n s among, those facts.24 We should accept an explanatory account of F e l l i n i ' s intentions only i f the account explains h i s actual feelings i n a more perspicuous way than any other account. On the other hand, we should accept an evaluative account of F e l l i n i ' s intentions i f accepting that way of construing the author's intentions serves some instrumental value.25 Of course, the more fundamental question - whether we 24 In deciding that we should adopt an i n t e r p r e t a t i o n attributed to F e l l i n i as an explanatory account of h i s intentions, we must determine that the suggested interpretation i s more consistent than p l a u s i b l e alternatives with what i s known about F e l l i n i ' s views on a r t generally, on the f i l m i t s e l f , and so on. 25 This type of interpretation might characterize the f i l m in a way that i s not p a r t i c u l a r l y f a i t h f u l to F e l l i n i ' s o r i g i n a l 84 should seek an explanatory or an evaluative account - depends upon the purposes for inquiring into F e l l i n i ' s intentions i n the f i r s t place. I t i s s i g n i f i c a n t that i n the f i c t i o n a l conversation F e l l i n i acknowledges that the legend i n s i g h t f u l l y explained feelings he a c t u a l l y had. I t would be a d i f f e r e n t matter - an evaluative account of his intentions - i f F e l l i n i acknowledged that the legend, while not depicting h i s actual feelings, represented what he should have intended i n creating the f i l m . An analogous d i s t i n c t i o n i s the difference between a judge accepting that a commentary explained h i s reasoning i n a more i n s i g h t f u l way than what he was able to a r t i c u l a t e at the time of h i s decision, and the judge admitting that he should have decided the case for the reasons s p e c i f i e d i n the commentary. The F e l l i n i example does not establish, as Dworkin implies i t does, that deciding upon p r a c t i t i o n e r s ' intentions and purposes i s l a r g e l y determined by the in t e r p r e t e r s ' sense of merit. As suggested e a r l i e r , i t may not matter to d i r e c t o r s or c r i t i c s whether there i s slippage from f a i t h f u l l y accounting for an author's intentions to improving upon them. However, i f we are serious about a formal theory of j u d i c i a l reasoning, we must avoid that slippage. To summarize the discussion thus far, I have agreed that there w i l l be ambiguities i n p r a c t i t i o n e r s ' reasons, that i n d i v i d u a l p r a c t i t i o n e r s can be wrong about the correct standards, that factions may legitimately disagree about what intentions. I ts value may be i n making the f i l m more compelling to North American audiences. 8 5 t h e i r p r a c t i c e requires, and that at times standards w i l l be unsettled. Accepting the l i k e l i h o o d of these disputes does not imply the view that Dworkin appears to hold - namely, that p r a c t i t i o n e r s ' intentions are r a d i c a l l y underdetermined i n the way that f i c t i o n a l characters' intentions are, and that accounts of p r a c t i t i o n e r ' s intentions are la r g e l y determined by int e r p r e t e r s ' senses of value. While i t i s possible that r i v a l formal theories w i l l account equally well for v i r t u a l l y a l l the recognized features of a practice, i t i s u n l i k e l y that t h i s w i l l t y p i c a l l y be the case with theories of j u d i c i a l reasoning. Therefore, the challenge facing t h e o r i s t s i s not inevit a b l y , or even l i k e l y to be, a choice between equally representative, complete accounts of j u d i c i a l practice. In fact, as we w i l l see, Dworkin r e a d i l y admits that the theory he proposes, and the other theories of j u d i c i a l reasoning he discusses, f a i l to account for s i g n i f i c a n t dimensions of what p r a c t i t i o n e r s generally recognize to be acceptable practice. The challenge w i l l then be to determine what t h e o r i s t s should do when there are discrepancies between what t h e i r theory indicates i s correct behaviour and what p r a c t i t i o n e r s claim the practice requires. 2.3 Equally representative, incomplete accounts Dworkin suggests that an inter p r e t a t i o n of a given practice may require t r e a t i n g paradigms of that practice - cle a r , dominant examples of acceptable practice - as "unrecognized anachronisms" (LE, p. 72). This claim i s ambiguous. Characterizing p r a c t i t i o n e r s ' opinion on some feature as an anachronism may 86 simply mean that a conception of j u d i c i a l reasoning explains what p r a c t i t i o n e r s were a c t u a l l y doing even though p r a c t i t i o n e r s had not f u l l y appreciated that they were reasoning i n that way. Consider a s i t u a t i o n where a number of judges r e f e r to the " l e g i s l a t i v e intention" i n enacting a statute i n a way that seems to imply that there was l i t e r a l l y a single meaning c o l l e c t i v e l y held by the body of l e g i s l a t o r s . In these s i t u a t i o n s , we could expect that, when these judges were apprised of the inappropriateness of t h i s characterization,26 they would acknowledge, when reconsidering the i n t e r p r e t i v e guidelines they had been using a l l along, that they had been t r e a t i n g " l e g i s l a t i v e intention" as a l e g a l f i c t i o n without appreciating that f a c t . These i n s i g h t f u l , but nevertheless f a i t h f u l , representations of p r a c t i t i o n e r s ' perceptions are to be expected. One might wonder whether developing a theory of j u d i c i a l reasoning was worth the e f f o r t i f i t did not r a i s e new insights about the p r a c t i c e . However, Dworkin does not l i m i t the notion of unrecognized anachronisms to t h i s type of explanation. He i n s i s t s that acceptance of a p a r t i c u l a r theory may require that p r a c t i t i o n e r s abandon an established practice because the theory shows the practice to be inconsistent with the theory's construct of good pr a c t i c e . As Dworkin says: No paradigm [a nearly u n i v e r s a l l y accepted requirement of the practice] i s secure from challenge by a new i n t e r p r e t a t i o n that accounts for other paradigms better and leaves that one i s o l a t e d as a mistake. (LE, p. 72) 26 The inappropriateness of regarding " l e g i s l a t i v e intention" in t h i s way i s discussed i n chapter f i v e . 87 No conception need j u s t i f y every feature of the p o l i t i c a l p r actices i t o f f e r s to interpret; l i k e any interpretation, i t can condemn some of i t s data as a mistake, as inconsistent with the j u s t i f i c a t i o n i t o f f e r s for the rest, and perhaps propose that t h i s mistake be abandoned. (LE, p. 99) Dworkin uses the notion of "a mistake" i n a d i f f e r e n t way than I have used i t . Dworkin believes that a standard the community of p r a c t i t i o n e r s or a superior regulatory body regards as acceptable may be a mistake i f i t i s seen to be inconsistent with what a theory of the practice holds to be the point of the pra c t i c e . Dworkin of f e r s the example of men standing up i n the presence of a woman as a longstanding paradigm of an imaginary community standard. Presumably t h i s behaviour would be required by the practice of courtesy u n t i l "one day women would object to men standing for them; they might c a l l t h i s the deepest possible discourtesy. Yesterday's paradigm would become today's chauvinism" (LE, pp. 72-73). The c r u c i a l issue overlooked i n t h i s example i s the grounds for deciding whether or not the norm that men should stand when women enter a room continues to be a bona f i d e norm. I f , a f t e r the chauvinism i s drawn to t h e i r attention, p r a c t i t i o n e r s continue to manifest what Hart c a l l s the "in t e r n a l aspect" towards t h i s norm - that i s , continue to expect adherence to the prescribed behaviour and to reprimand those within the community who f a i l so to adhere (CL, p. 56) - then the norm remains a requirement of that pract i c e . The norm's status within the practice does not d i r e c t l y depend on the norm re t a i n i n g i t s h i s t o r i c a l j u s t i f i c a t i o n . Even i f many p r a c t i t i o n e r s cease to accept the norm, i t s continued acceptance 88 by many others cannot be dismissed as mistaken merely because the norm i s inconsistent with what i s taken to be a j u s t i f i c a t i o n for that community's practice of courtesy. While unsettled areas of a practice w i l l t y p i c a l l y be decided i n l i g h t of what the most plausible ( i . e . , the most f a i t h f u l ) formal theory suggests, the c r i t e r i o n for acceptance of established requirements of a practice i s not consistency with the purposes that a t h e o r i s t imputes to the pra c t i c e as a whole. I t may be desirable that a l l norms within each s o c i a l p ractice be consistent with the most defensible j u s t i f i c a t i o n for the practice, however t h i s type of consistency can not be presumed to be a basic c r i t e r i o n for any theory. I f a formal theory i s sought, the j u s t i f i c a t o r y ideals that a t h e o r i s t imputes to a p a r t i c u l a r practice do not warrant dismissing as mistaken what competent p r a c t i t i o n e r s recognize as acceptable standards. For example, i n chapter six I i d e n t i f y a c o n s t e l l a t i o n of rules of app l i c a t i o n - including the doctrine of stare d e c i s i s - as con s t i t u t i n g a mode of j u d i c i a l reasoning c a l l e d "reasoning from p r i o r cases." I suggest that the general point of t h i s mode of reasoning i s to decide current cases i n a manner consistent with relevantly s i m i l a r p r i o r decisions. While t h i s j u s t i f i c a t i o n captures the o v e r a l l point, i t does not represent every p a r t i c u l a r j u d i c i a l norm within t h i s mode of reasoning. I t i s widely recognized, for example, that judges are not bound by decisions reached i n i n f e r i o r courts or i n courts of other j u r i s d i c t i o n s . Whether or not there are good reasons for these 89 exceptions to the general point of t h i s dimension of j u d i c i a l p r a c t i c e i s i r r e l e v a n t . U n t i l p r a c t i t i o n e r s abandon these rules about the authority of various l e v e l s of courts, any formal theory must recognize them for what they are - bona fide standards of j u d i c i a l p r a c t i c e . P r a c t i t i o n e r s may recognize p a r t i c u l a r rules as anachronisms and abandon them, but a t h e o r i s t cannot modify or dismiss p r a c t i t i o n e r s ' intentions merely because these intentions are inconsistent with the imputed point of the pra c t i c e . Judges have authority to overrule an e x i s t i n g rule i f i t would be required by law; a t h e o r i s t cannot ignore or dismiss an established practice merely because t h i s practice i s inconsistent with his theory of j u d i c i a l reasoning. In t h i s connection, we must be ca r e f u l not to confuse two questions. There i s an important difference between asking "What are the grounds judges use to j u s t i f y abandoning anomalous practices?" and "What are the grounds t h e o r i s t s use to j u s t i f y dismissing practices as anomalies?" The answer to the former question i s contingent upon the standards e x i s t i n g within the practice for dealing with anomalies. A formal theory of j u d i c i a l reasoning would endeavour to explain what standards judges employ when making these determinations. As I argue i n chapter seven, judges resort to a mode of reasoning c a l l e d "reasoning from p r i n c i p l e " when j u s t i f y i n g exceptions to seemingly established rules. I t i s true that attention to the o v e r a l l point of the area of a law (or some aspect of the practice) i s a fundamental consideration i n resolving these 90 anomalies; however, i t i s not the only consideration that judges entertain. I t i s a separate matter - a concern raised by the second question - whether a theory can continue to claim f i d e l i t y to a p r a c t i c e i f bona fide standards are dismissed because they do not f i t with the interpreter's sense of the most defensible o v e r a l l purpose of a practice. I t i s also worth noting that the interpreter's sense of the o v e r a l l purpose of a practice may be at odds with p r a c t i t i o n e r s ' conceptions.27 As Dworkin asks: Can the best j u s t i f i c a t i o n of the practices of courtesy, which almost everyone else takes to be mainly about showing deference to s o c i a l superiors, r e a l l y be one that would require, at the reforming [my emphasis] stage, no d i s t i n c t i o n s of s o c i a l rank? Would t h i s be too r a d i c a l a reform, too i l l - f i t t i n g a j u s t i f i c a t i o n to count as an in t e r p r e t a t i o n at a l l ? (LE, p. 67) The e f f e c t of Dworkin's view of theory building i s to reform s o c i a l practices by dismissing a l l requirements that are inconsistent with an imputed o v e r a l l purpose.28 As I have said, t h i s presupposes that a l l bona f i d e practices are consistent with these goals and that there are no c o n f l i c t i n g tensions and a r b i t r a r y or anomalous requirements. I f we remember that 27 Dworkin suggests that interpreters of l e g a l practice propose value or purpose (LE, p. 42) and o f f e r j u s t i f i c a t i o n s why the i n t e r p r e t e r believes the practice i s worth pursuing (LE, p. 66). 28 For example, Dworkin of f e r s a somewhat stere o t y p i c a l account of l e g a l positivism - he refers to i t as "conventionalism." Dworkin suggests that t h i s theory does not f i t j u d i c i a l practices very well - numerous aspects of practice cannot be accounted for by t h i s theory. He then inquires "whether that conception [conventionalism] would j u s t i f y these practices, by providing an a t t r a c t i v e picture of law's point, i f i t f i t well" (LE, p. 150). Apparently, conventionalism att r i b u t e s two basis purposes to law - c e r t a i n t y and f l e x i b i l i t y . Since conventionalism promotes f l e x i b i l i t y less e f f i c i e n t l y than another theory of law which Dworkin considers, he concludes that there i s "no reason to s t r a i n to make i t [conventionalism] f i t " l e g a l practice (LE, p. 150) . 91 j u d i c i a l practices have evolved over centuries, i t i s not obvious that t h e o r i s t s should expect, l e t alone require, complete i n t e g r i t y among standards.29 It i s possible that more than one formal theory could f a i t h f u l l y account for Anglo-American j u d i c i a l p r a c t i c e . More l i k e l y , no theory w i l l completely and adequately address a l l dimensions. In the event of discrepancies between the t h e o r e t i c a l account and what informed p r a c t i t i o n e r s recognize as acceptable l e g a l practice, t h e o r i s t s must modify t h e i r theories.30 Any l i n g e r i n g discrepancies with s e t t l e d practices 29 In speaking about the implications of Dworkin's requirement of o v e r a l l coherence, Mackie (1984, p. 169) suggests that Dworkin's theory would cause large areas of law, that p r a c t i t i o n e r s regard as s e t t l e d , to be reconsidered. Dworkin's response to t h i s c r i t i c i s m i s that i t i s questionable whether his theory allows more " s e t t l e d " law to be challenged. He says "(m)uch depends on the d e t a i l s of doctrine and practice i n p a r t i c u l a r j u r i s d i c t i o n s - for example, whether these allow overruling of undesirable precedents" (TRS, p. 3 62). This i s an unsatisfying response, since Dworkin holds that should a theory show law i n a better l i g h t were judges to overrule undesirable precedents, a t h e o r i s t could legitimately dismiss judges who f e l t compelled to adhere to undesirable precedents. 30 I t might be suggested that a contingent fact of Anglo-American l e g a l systems i s that the practice of j u d i c i a l reasoning i s neither homogeneous nor well understood by p r a c t i t i o n e r s . Therefore, no inter p r e t a t i o n can account for a l l p r a c t i t i o n e r s ' behaviour and many p r a c t i t i o n e r s ' explanations for t h e i r behaviour w i l l be inconsistent with what they r e a l l y do. The claim that there i s considerable confusion among p r a c t i t i o n e r s about many aspects of j u d i c i a l practice has considerable merit. Despite the apparent widespread confusion about p a r t i c u l a r matters i n j u d i c i a l reasoning, i t i s not obvious that these differences preclude assessing r i v a l theories for t h e i r f i d e l i t y to j u d i c i a l practices. Certainly, lawyers and judges disagree about the correct application of the law. In fact, i t i s un i v e r s a l l y agreed by p r a c t i t i o n e r s that i t i s not always cle a r what the law requires i n a p a r t i c u l a r case. Yet t h i s admission does not imply that there i s no general agreement about the grounds upon which most cases should be resolved; as we w i l l see, i t implies only that application of the law i s not a mechanical process, and that there are c o n f l i c t i n g understandings about the 92 are to be recognized as flaws i n the theory, i n the same way that the Mercator and Peters projections are each seen as presenting unrepresentative accounts of some dimensions of the world.31 In conclusion, we have seen that Dworkin's view i s that l e g a l theory building i s determined l a r g e l y by i n t e r p r e t e r s ' conceptions of desirable practice.32 This p o s i t i o n i s predicated on the questionable legitimacy of modifying, ignoring or dismissing judges' accounts of the requirements of t h e i r p r a c t i c e . Dworkin's objections to the claim that the reasons judges o f f e r for t h e i r decisions determine the standards of j u d i c i a l reasoning have been shown to be unconvincing. Having a r t i c u l a t e d the c r i t e r i a for (formal) theory b u i l d i n g about j u d i c i a l reasoning i n chapter two and, i n t h i s chapter/ having defended these c r i t e r i a against Dworkin's r i v a l account, we are now ready to begin e x p l i c a t i o n of the nature of j u d i c i a l reasoning i n Anglo-American j u r i s d i c t i o n s . correct standards to apply i n a some areas. In other words, recognition of widespread consensus about basic norms and standards, and considerable uncertainty about the law are not mutually exclusive. 31 Discrepancies does not r e f e r to features recognized by p r a c t i t i o n e r s to be contentious or i n a state of t r a n s i t i o n ; rather, i t ref e r s exclusively to differences between the theory and widely recognized tenets of l e g a l practice. 32 This does not imply that Dworkin believes that an interpreter i s free to impute any purpose the interpreter desires (CL, p. 52). Rather, Dworkin believes that several purposes " t y p i c a l l y " can be imputed to a practice and the interpreter must ultimately decide which of these show the practice i n i t s best l i g h t . 93 Chapter Four: A Rule-Guided Theory of J u d i c i a l Reasoning This chapter has two parts. The f i r s t part, which i s an introduction to a rule-guided account of j u d i c i a l reasoning, has four sections: (1) an examination of Hart's treatment of j u d i c i a l reasoning, (2) an outline of the basic elements of a rule-guided account of j u d i c i a l reasoning, (3) an overview of the types of rules c o n s t i t u t i n g the proposed model of rules, and (4) a discussion of several points of pote n t i a l confusion about r u l e -guided decision making. The second part - an excursus to the f i r s t part - consists of an extended account of the judges' reasoning i n Riggs v. Palmer. In the f i r s t section of t h i s chapter Hart's l i m i t e d treatment of j u d i c i a l reasoning i s explored. Explanations for his inattention to t h i s dimension of l e g a l practice are suggested, and reasons are offered for regarding an account of j u d i c i a l reasoning i n terms of secondary rules of a p p l i c a t i o n as an important supplement to Hart's conception of law as a union of primary and secondary rules. Also, i t i s suggested why po s i t i n g a rule-guided account of j u d i c i a l reasoning i s central to explaining fundamental features of our l e g a l system. The rule-guided nature of j u d i c i a l reasoning i s explicated i n terms of three elements: the basic structure of l e g a l 94 arguments, the modes of reasoning used to argue for the d i s p o s i t i o n of a given case, and the c r i t e r i a f or assessing the conclusions from these modes of reasoning. More s p e c i f i c a l l y , i t i s suggested that the structure of j u d i c i a l argumentation i s what has been termed "conductive argument" - that i s , judges and lawyers o f f e r independent arguments for and against a conclusion. These arguments are constructed i n the context of three general modes or forms of reasoning - reasoning from i n t e r p r e t i v e guidelines, reasoning from p r i o r cases and reasoning from p r i n c i p l e . The s p e c i f i c standards for assessing arguments are established by the c o n s t e l l a t i o n of rules comprising each of these forms of reasoning. The t h i r d section, which builds d i r e c t l y upon the p r i o r section, explicates the three general types of rules that e s t a b l i s h the standards which determine proper j u d i c i a l reasoning. These rules e s t a b l i s h c r i t e r i a for: (1 ) j u s t i f y i n g what counts as a l e g a l l y v a l i d argument, (2) v e r i f y i n g an argument's conclusions, and (3 ) determining the r e l a t i v e weight or force of arguments. In the f i n a l section of part one, an important confusion about the r e l a t i o n between controversial decisions and r u l e -guided decisions i s discussed. I t i s a truism that judges frequently disagree i n d i f f i c u l t cases and that there often appear to be no obvious, preexisting rules s t i p u l a t i n g the standards judges r e l y upon. These types of disputes are thought to challenge the adequacy of a rule-guided account of j u d i c i a l 95 reasoning. I argue that a rule-guided conception of j u d i c i a l reasoning i s consistent with contentious j u d i c i a l decisions for two reasons: (1) there are rule-guided standards by which judges resolve disputes over contested primary and secondary rules, and (2) while the need to exercise judgment i n applying rules i s i n e v i t a b l e given the complexity of the issues judges face, t h i s fact i s not inconsistent with the claim that rules control j u d i c i a l decisions. This l a t t e r claim, that controversial decisions may s t i l l be rule-guided, i s supported by drawing a d i s t i n c t i o n between exercising judgment and exercising d i s c r e t i o n . Part two of the chapter d e t a i l s a rule-guided reconstruction of the majority and dissenting judges' reasoning i n a celebrated case - Riggs v. Palmer. The issue facing the Court was whether or not a p p l i c a t i o n of statutory provisions on succession precluded persons convicted of murdering the testator from i n h e r i t i n g under the w i l l . The excursus i l l u s t r a t e s the capacity of the model of rules outlined i n the f i r s t part of the chapter to account for judges' reasoning i n an actual case. Also, a r i v a l rule-guided account of judges' reasoning i n t h i s case, offered by Coval and Smith (1986), i s discussed and c r i t i c i z e d . 1. Hart and j u d i c i a l reasoning The account of j u d i c i a l reasoning I propose builds upon Hart's conception of law as the union of primary and secondary ru l e s . That i s , the (formal) nature of our l e g a l system can be 96 explained f a i t h f u l l y i n terms of rules specifying c i t i z e n s ' obligations (primary rules) and rules as to how these primary rules are to be established, changed and enforced (secondary r u l e s ) . As I indicated i n the opening chapter, Hart offered what, at best, could be c a l l e d a lim i t e d account of the rules regulating j u d i c i a l reasoning. What he does say on the matter can be su c c i n c t l y outlined. According to Hart, i n easy or "core" cases, j u d i c i a l a p p l i c a t i o n of the law i s governed by the se t t l e d meaning of a determinate rule (CL, pp. 140-141). The s e t t l e d meaning of a rule i s e s s e n t i a l l y a function of the l e g a l and ordinary meaning of the language used i n the rule and the obvious purpose of the rule (PPL, p. 271). In controversial or "penumbra" cases, judges are expected to im p a r t i a l l y balance competing considerations - e.g., "i n d i v i d u a l and s o c i a l i n t e r e s t s , s o c i a l and p o l i t i c a l aims, and standards of morality and j u s t i c e " (PPL, p. 271). Or, as he says elsewhere, i t may only be possible to expect that the decision be a "reasoned product of impartial choice" (CL, p. 200). Hart's vague a r t i c u l a t i o n of standards i n penumbra situations leaves a s i g n i f i c a n t gap i n the a b i l i t y of his model of rules to explain j u d i c i a l decision making. For that matter, Hart recognizes that h i s e x p l i c a t i o n of j u d i c i a l reasoning does not concur, i n at i l e a s t one respect, with what p r a c t i t i o n e r s appear to accept as proper practice - he characterizes much of j u d i c i a l a p p l i c a t i o n of law i n d i f f i c u l t cases as rule-making (CL, p. 201) despite admitting that "the courts often disclaim any such creative function" (CL, p. 132). 97 I t i s somewhat surp r i s i n g that Hart would pay such scant attention to j u d i c i a l reasoning e s p e c i a l l y since he builds (secondary) rules of adjudication into h i s conception of law.l However, an examination of Hart's account of these rules reveals that they deal exclusively with procedures for adjudication (CL, pp. 94-96). They focus on establishing a mechanism - courts, j u r i s d i c t i o n s and judges - through which disputes about the v a l i d i t y and scope of laws are resolved (CL, p. 90). In discussing these adjudicative rules Hart makes passing mention of what he c a l l s "standards for correct j u d i c i a l decision" -c r i t e r i a f o r determining correct application of the law i n a p a r t i c u l a r case (CL, pp. 141-142). I t i s these standards that are the focus of any formal account of j u d i c i a l reasoning. Hart's inattention to secondary rules regulating j u d i c i a l decision making can be explained by examining his rationale for postulating secondary rules. Hart j u s t i f i e d the need for three types of secondary rules by considering defects inherent i n mythical, "pre-legal" communities regulated by primary rules alone. According to Hart, a lack of rules of recognition creates uncertainty i n a le g a l system, a lack of rules of change leads to a (near) s t a t i c set of laws, and a lack of rules of adjudication leads to i n e f f i c i e n t maintenance and enforcement of laws (CL, pp. 90-91). Each of these d e f i c i e n c i e s i n "immature" l e g a l systems 1 Hart describes two other types of secondary rules - rules of recognition dealing with the standards for i d e n t i f y i n g rules as v a l i d rules of a l e g a l system, and rules of change dealing with mechanisms for a l t e r i n g laws to keep pace with changing circumstances (CL, pp. 89 f f . ) . 98 i s corrected by establishing appropriate second-order rules. As indicated above, the defect that gives r i s e to Hart's rules of adjudication i s i n e f f i c i e n c y i n a l e g a l system where there i s no c e n t r a l i z e d voice establishing v i o l a t i o n s and authorizing sanctions. Hart's remedy i s to e s t a b l i s h a mechanism for resolving what might otherwise be unending disagreements about breaches of law. In short, the i n e f f i c i e n c y a r i s i n g from inconclusive determination of v i o l a t i o n s of the law i s remediated by creating f i n a l a r b i t e r s of law. However, in e s t a b l i s h i n g t h i s dispute resolution mechanism, Hart neglects to a r t i c u l a t e i n any depth the standards that a r b i t e r s must follow i n performing t h e i r r o l e . In other words, Hart's account of secondary rules i s incomplete because he overlooks an important defect i n l e g a l systems where there are no c l e a r standards c o n t r o l l i n g the a p p l i c a t i o n of primary rules i n p a r t i c u l a r cases. 1.1 Complementing Hart Hart's inattention to j u d i c i a l reasoning i s an important omission, although i t need not undermine a model of rules conception of law. The need for rules of a p p l i c a t i o n indicates a further possible defect i n immature l e g a l systems. Unlike the three defects inherent i n a primitive l e g a l order consisting e x c l u s i v e l y of primary rules, t h i s defect i s a d e r i v a t i v e problem occasioned by the delegation of adjudicative powers to bodies other than the p r i n c i p a l l e g i s l a t i v e agency. If the o f f i c e s authorized to adjudicate disputes were also authorized to l e g i s l a t e , i t would be less important that a l e g a l system 99 e s t a b l i s h c l e a r c r i t e r i a for application of laws. Hart, himself, refe r s to heightened concern over the indeterminacy of l e g a l rules " i n j u r i s d i c t i o n s i n which the separation of powers i s respected" (PPL, p. 270). This pot e n t i a l defect has been referred to as the danger of j u d i c i a l tyranny. I t arises i n le g a l systems where f i n a l authority to apply law i s vested with o f f i c i a l s other than the p r i n c i p a l l e g i s l a t o r s and when constraints on t h i s power are inadequate to curb unbridled d i s c r e t i o n (Tushnet, 1988, pp. 16-17). A somewhat exaggerated concern over the poten t i a l tyranny of j u d i c i a l power was voiced by Bishop Hoadly i n speaking before the English king i n 1717: Whoever hath an absolute authority to interpret any written or spoken laws, i t i s he who i s t r u l y the Law-giver to a l l intents and purposes, and not the person who f i r s t wrote or spoke them. (Gray, 1966, p. 195) Hart recognizes that i n Anglo-American law judges do not have absolute authority to interpret the law and, i n a l a t e r work, seems to have understood that secondary rules guiding j u d i c i a l reasoning constrain judges. However, i n The Concept of Law, there i s no recognition of t h i s type of secondary rule -what I w i l l c a l l "rules of application."2 Hart t a l k s as i f the 2 Occasionally, Hart appears to recognize that rules do not provide for t h e i r own application (CL, p. 123). For example, Hart seems to imply the need for secondary rules regulating the ambit of a primary rule when he states that, even i n the "pla i n case," laws "seem to need no int e r p r e t a t i o n " and t h e i r a p p l i c a t i o n i n s p e c i f i c instances "seems unproblematic or automatic" (CL, p. 123). I t i s not cle a r i f t h i s means that even i n c l e a r cases, there i s need for secondary rules governing the extension of a general term to a fact s i t u a t i o n . I t i s more l i k e l y , given what we have said about his account of rules of adjudication, that the potential for uncertainty over the precise scope of a rule, requires an o f f i c i a l voice to e s t a b l i s h d e f i n i t i v e l y whether or not a rule applies. As he says, "the 100 constraints on j u d i c i a l application of the law reside e n t i r e l y in the primary rules themselves.3 Primary rules come with a "core of c e r t a i n t y " - a s e t t l e d range of application (CL, p. 119). When discussing the duty of an o f f i c i a l scorer i n a game to apply the scoring r u l e as best he could, Hart envisions constraints emerging from mere acceptance of the scoring rule as v a l i d . S i m i l a r l y i n law, i f judges sincerely accept the primary rules i d e n t i f i e d by the rule of recognition, they i n h e r i t constraints on t h e i r a b i l i t y to interpret - rules "are determinate enough at the centre to supply standards of correct j u d i c i a l decisions" (CL, pp. 141-142). In fact, t h i s l a s t remark i s offered as Hart's defense against the argument r e f l e c t e d i n the Hoadly quote. In other words, i n the Concept of Law. Hart appears to deny the need for d i s t i n c t secondary rules of a p p l i c a t i o n on the grounds that any p o t e n t i a l defect presented by the danger of j u d i c i a l tyranny i s avoided by the inherent meaning of the primary rules. Waluchow (1980, pp. 48-52; 1985, pp. 68-70) argues that Hart introduces i n "Problems i n Philosophy of Law" an important dimension into his model of rules account. Not only does Hart recognize that the scope of a rule i s not l i m i t e d to the "shared conventions of language" but also that "the meaning of words may be c l e a r l y controlled by reference to the purpose of a statutory enactment which i t s e l f may either be e x p l i c i t l y stated or r u l e i t s e l f [cannot] step forward to claim i t s own instances" (CL, p. 123). 3 According to Moles (1987, pp. 116-119), Hart creates the impression that primary rules s e t t l e the judges' work. 101 generally agreed" (PPL, p. 271). In other words, the application of law i n p a r t i c u l a r instances i s not controlled e x c l u s i v e l y by each rule's inherent meaning. In addition, Hart makes the following observation: I t i s of c r u c i a l importance that cases for decision do not a r i s e i n a vacuum but i n the course of the operation of a working body of rules, an operation i n which a m u l t i p l i c i t y of diverse considerations are continuously recognized as good reasons for a decision. These include a wide var i e t y of i n d i v i d u a l and s o c i a l i n t e r e s t s , s o c i a l and p o l i t i c a l aims, standards of morality and j u s t i c e ; and they may be  formulated i n general terms as p r i n c i p l e s , p o l i c i e s , and  standards (PPL, p. 271; emphasis added). This statement strongly suggests Hart's emerging recognition of the need for second-order rules c o n t r o l l i n g j u d i c i a l decision making.4 Whether or not Hart actually acknowledges t h e i r need i s , to a large extent, immaterial. The more relevant issue i s whether rules of a p p l i c a t i o n warrant acceptance as an a d d i t i o n a l , necessary element of a mature le g a l system. I contend that, i f Hart's model of rules account of law i s to redress the defects r e s u l t i n g from j u d i c i a l tyranny, the model must incorporate secondary rules that provide standards regulating j u d i c i a l a p p l i c a t i o n of primary rules i n p a r t i c u l a r cases. F u l l consideration of the a b i l i t y of secondary rules of a p p l i c a t i o n to control j u d i c i a l decision making awaits a more extended discussion of the nature and basic modes of j u d i c i a l 4 I t i s unclear whether or not Hart intended that these rules be understood as l e g a l rules - i . e . , that they meet the c r i t e r i a for v a l i d i t y required by rules of recognition. 102 reasoning. However, several preliminary points w i l l be made about the a b i l i t y of secondary rules of application to explain important features of Anglo-American l e g a l systems. 1.2 The need for secondary rules of a p p l i c a t i o n Positing the notion of secondary rules of application explains important features of j u d i c i a l reasoning both i n easy or core cases, and i n d i f f i c u l t or penumbra cases. F i r s t , I w i l l j u s t i f y the claim that secondary rules control a p p l i c a t i o n of the law i n easy cases. This w i l l be done i n the context of an actual case whose conclusion, at l e a s t according to one l e g a l philosopher, can be explained without recourse to secondary rules. I w i l l then consider the role of secondary rules i n explaining key features dealing with the application of law in d i f f i c u l t cases. In h i s book on j u d i c i a l reasoning, MacCormick (1978, pp. 19-37) o f f e r s a case which he believes establishes that the syllogism i s the basic structure of j u d i c i a l decision making in easy cases.5 In other words, the application of the law i n an easy case can be deduced d i r e c t l y from the primary rule and the facts, without recourse to secondary rules of a p p l i c a t i o n . The example involves the Sale of Goods Act (1893) which holds vendors l i a b l e to purchasers for damages r e s u l t i n g from the sale of goods that are not of "merchantable q u a l i t y . " (This i s the primary rule.) In the case at issue, a pub owner sold a b o t t l e of 5 Daniels and Daniels v. White & Sons and Tarbard [1938] 4 A l l E.R. 258. 103 contaminated lemonade to Mr. Daniels. (These are the facts.) The pub owner was found g u i l t y of s e l l i n g goods of non-merchantable qua l i t y . (This i s the v e r d i c t and the conclusion of the syllogism.) MacCormick (1978, p. 24) argues that the j u s t i f i c a t i o n for application of the primary rule to the facts of the case can be reduced to the form: "In any case, i f p then q; i n the instant case p; therefore, i n the instant case, q." Let us examine the adequacy of t h i s account of the reasoning i n the case. In order to complete the syllogism, MacCormick builds into h i s major premise an interpretation of "goods of non-merchantable q u a l i t y " that corresponds to descriptions of the agreed facts . In other words, although the primary rule s t i p u l a t e s simply that vendors are l i a b l e i f the goods are "non-merchantable," MacCormick interprets that term to mean goods that are not f i t for proper use, which would obviously include contaminated drinks. MacCormick (19.78, p. 22) c i t e s a p r i o r case establishing t h i s i n t e r p r e t a t i o n as j u s t i f i c a t i o n for accepting t h i s t r a n s l a t i o n of the primary rule as an "equivalent proposition." But t h i s i s p r e c i s e l y the crux of j u d i c i a l reasoning - i n j u s t i f y i n g whether or not a party i s g u i l t y of breach of law, a judge must demonstrate that the accepted facts meet the conditions established by the relevant l e g a l r u l e . Characterizing contaminated lemonade as a good of non-merchantable q u a l i t y must be j u s t i f i e d , and t h i s requires accepting further assumptions. Relying on a decision i n a p r i o r 104 case as h i s reason for t h i s characterization presupposes that an i n t e r p r e t a t i o n of the Sale of Goods Act arrived at i n a p r i o r case i s binding on subsequent applications of the Act. This inference i s warranted only i f we accept a further rule authorizing (perhaps requiring) use of p r i o r interpretations of primary rules i n subsequent applications of those rules.6 (A l e g a l system that did not r e l y on precedent could not accept the e a r l i e r decision as s u f f i c i e n t j u s t i f i c a t i o n for the characterization.) In short, a secondary rule i s required to j u s t i f y the i n t e r p r e t a t i o n ascribed to non-merchantable goods. While I have focused on j u s t i f y i n g the l e g a l denotation of "non-merchantable goods," other secondary rules are required to j u s t i f y subsumption of the other material facts of the case within the primary ru l e . For example, a p p l i c a b i l i t y of the rule might require j u s t i f y i n g that Mr. Daniels was a "purchaser" under the l e g a l meaning of the term. While there i s a recognized rule to the e f f e c t that words are to be presumed to carry t h e i r ordinary language meaning, i t i s possible that p r i o r cases or an i n t e r p r e t i v e provision i n the Act had determined a s p e c i f i c l e g a l meaning for the term "purchaser." For example, there could be an i n t e r p r e t i v e rule distinguishing personal and commercial buyers and, i f Mr. Daniels had been acting on behalf of a company, he might not have q u a l i f i e d as a "purchaser." A l t e r n a t i v e l y , "goods" under the meaning of the Act may r e f e r s o l e l y to nonedible products. In short, disguised i n MacCormick's 6 The exact formulation of the rule i s immaterial. Clearly, i t i s an implication of the doctrine of stare d e c i s i s . 105 reduction of rule application to a syllogism are assumptions about the d e f e n s i b i l i t y of subsuming the s p e c i f i c facts of the case within each of the categories contained i n the r u l e . Postulating rules of application explains why these extensions are warranted. Gottlieb (1968, p. 17) concurs with t h i s view: "the heart of the question i n l e g a l reasoning i s the c l a s s i f i c a t i o n of p a r t i c u l a r s . I f one gives a term a c e r t a i n i n t e r p r e t a t i o n , then a conclusion follows but l o g i c cannot help c l a s s i f y p a r t i c u l a r s . " And l a t e r on, remarking on the i r r e d u c i b i l i t y of rule application to a syllogism, G o t t l i e b (1968, p. 166) explains: I t i s possible to formulate a major premise (rule) and a minor premise (facts) of a j u d i c i a l syllogism so that i t e n t a i l s a necessary conclusion but t h i s conceals the heart of the l e g a l decision which consists i n the adoption and formulation of such premises.7 As Hart recognized: "[a]11 rules involve recognizing or c l a s s i f y i n g p a r t i c u l a r cases as instances of general terms" (CL, p. 119). Admitting that a l e g a l rule i s recognized as c o r r e c t l y covering a set of p a r t i c u l a r situations - i . e . , has a s e t t l e d meaning - i s i m p l i c i t acceptance of second-order rules regulating the denotation of the primary ru l e . The f a i l u r e to appreciate the i n e v i t a b l e r o l e of secondary rules i n deciding whether or not a given case f a l l s within the authorized meaning of law encourages a naive b e l i e f about the 7 In defending h i s example, MacCormick (1978, pp. 34-36) discusses an objection that Gottlieb raises, namely that an act -the v e r d i c t - cannot be the l o g i c a l l y entailed conclusion of a syllogism. Clearly, t h i s objection i s neither the thrust of Gottlieb's remarks c i t e d above nor the objection I r a i s e . 106 inherent denotation of a r u l e . Any number of actions can be subsumed under, or excluded from, a rule depending on the understandings ascribed to the categories created by the rule.8 For example, i n one case9 a telephone was considered to be a telegraph and a telephone message was considered a telegram because the law regulating telegraphs was intended to "include a l l apparatus for transmitting messages or other communications by means of e l e c t r i c s i g n als." Raz's (1985a, p. 321) example of the implications of introducing a statutory rule s t i p u l a t i n g that a foetus w i l l thereafter be understood to be a "person" o f f e r s further evidence of how secondary rules control the a p p l i c a t i o n of primary rules. Although the formulations of a l l primary rules r e f e r r i n g to persons remain unchanged, the range of t h e i r a p p l i c a t i o n i s s i g n i f i c a n t l y altered to include foetuses. These examples suggest why one writer remarked that "[t]he meaning of the terms of a l e g i s l a t i v e provision does not inhere i n the provision i t s e l f . Judges do not discover meaning for the words; \^  they assign meaning to the words" (Peck, 1987, p. 12). The assignation of meaning, i f i t i s not to be a r b i t r a r y , must be regulated by further standards, conventions, p r i n c i p l e s , and so on. Thus, the fact that we are c l e a r about the a p p l i c a t i o n of rules i n easy cases i s not a repudiation, but an affirmation, of the existence of rules of application that control the denotation of the r u l e (Gottlieb, 1968, pp. 99-101). 8 The fact that the meaning does not inhere i n a rule admits the p o t e n t i a l for what Wittgenstein c a l l e d the "anarchy of i n t e r p r e t a t i o n " (Postema, 1982, p. 188). 9 A.G. v. Edison Telephone Company [1881] 6 Q.B.D. 244. 107 The discussion of MacCormick's example suggests two central features of j u d i c i a l reasoning: (1) the p r i n c i p a l task i n j u d i c i a l decision making i s rule application - determining whether or not the accepted facts of a case f a l l within the categories created by a primary r u l e ; and (2) secondary rules of a p p l i c a t i o n provide the grounds for j u s t i f y i n g the subsumption of p a r t i c u l a r facts under a r u l e . A t h i r d feature which MacCormick's example does not r e f l e c t , since he has raised an "easy" case, i s the p o s s i b i l i t y of rules of a p p l i c a t i o n j u s t i f y i n g c o n f l i c t i n g conclusions about the a p p l i c a b i l i t y of a r u l e to a given set of f a c t s . Rules of application are not merely i m p l i c i t features of agreed understandings about the content of laws, these rules play an e s s e n t i a l r o l e i n c o n t r o l l i n g j u d i c i a l reasoning i n d i f f i c u l t cases. A common tendency i s to regard the denotation of rules as c l e a r and uncontroversial, and to view uncertainties over the a p p l i c a t i o n of law as evidence of a breakdown in a rule-guided e x p l i c a t i o n of the application of law. Dworkin characterizes the p o s i t i v i s t ' s conception of j u d i c i a l decision making as comprising "mechanical jurisprudence" and interpretation according to actual intentions. As he says, p o s i t i v i s t i c judges are not "licensed" to conclude that a case i s decided by a rule unless the rule i s e x p l i c i t - i . e . , "competent lawyers and judges w i l l a l l agree" about what i t covers (LE, p. 114). No doubt, the perception of rules as r i g i d norms i s f u e l l e d by the importance that positivism places on the need for certainty i n law. However, a model of 108 rules account of law i s not incompatible with variable standards and l e g a l responsiveness to s o c i a l change.10 In fact, as I s h a l l b r i e f l y i l l u s t r a t e , secondary rules help to explain how t h i s f l e x i b i l i t y i s possible. One reason for r e s i s t i n g the i n c l i n a t i o n to reduce the content of l e g a l rules to a pre-established range of application i s the i n a b i l i t y of t h i s view to explain why many laws are d e l i b e r a t e l y cast i n vague or general terms. If the only s i t u a t i o n s that are controlled by a rule are s i t u a t i o n s that are expressly i d e n t i f i e d by the rule, then why would l e g i s l a t o r s d e l i b e r a t e l y enact vague laws? Yet, i t i s generally understood that constitutions, e s p e c i a l l y c o n s t i t u t i o n a l b i l l s of r i g h t s , are d e l i b e r a t e l y l e f t general to avoid the consequences of a narrow reading. Freund's famous quip that the courts should not "read the provisions of the Constitution l i k e a l a s t w i l l and testament l e s t i t become one" captures the dangers of excessive s p e c i f i c i t y and interpretations r e s t r i c t e d to e x p l i c i t d e n o t a t i o n . i l A l l laws have what I w i l l c a l l a s p e c i f i c i t y 10 Positivism has s t e r e o t y p i c a l l y been accused of exaggerated emphasis on p r e d i c t a b i l i t y and certainty i n law (Waluchow, 1986, p. 199) . 11 Cited i n Hunter v. Southam [1984] 2 S.C.R. 145 at p. 158. The F i f t h Amendment of the U.S. Constitution i l l u s t r a t e s the disadvantages of excess s p e c i f i c i t y . I t states, i n part, that: "In s u i t s at common law, where the value i n controversy s h a l l exceed twenty d o l l a r s , the r i g h t of t r i a l by jury s h a l l be preserved." In 1791, when the amendment was r a t i f i e d , twenty d o l l a r s represented a s i g n i f i c a n t amount of money; c l e a r l y , i t now i s a t r i v i a l sum. The need for f l e x i b i l i t y i s not l i m i t e d to c o n s t i t u t i o n a l documents. I t has frequently been noted that the strength of the common law, where the e x p l i c i t wording of i t s rules are not binding, l i e s i n i t s a b i l i t y to adapt to changing s i t u a t i o n s . 109 threshold - an equilibrium where the advantages of further s p e c i f i c a t i o n of what would f a l l within the ambit of the rule i s o f f s e t by the disadvantages of r i g i d i t y . L e g i s l a t i v e drafters must balance the benefits of precise rules (e.g., p r e d i c t a b i l i t y , uniformity, certainty, consistent application) against the counterproductive consequences of r e s t r i c t i v e rules (e.g., becoming dated, applying r i g i d l y i n situ a t i o n s that are undesirable or self-defeating, increased volume of rules needed). In point of fact, many laws are l e f t vague because, contrary to what Dworkin and others allege, vague rules can regulate unanticipated or novel s i t u a t i o n s . The Supreme Court's r u l i n g i n Hunter v. Southaml2 i s a good example of the way i n which secondary rules control a p p l i c a t i o n of primary rules beyond the e x p l i c i t denotation of a rule . In t h i s case, as authorized by statute, a d i r e c t o r at the Combines Investigation Branch had authorized a search at one of Southam's o f f i c e s . The question confronting the Court was whether or not the d i r e c t o r ' s actions v i o l a t e d Charter protections against "unreasonable search and seizure." The resolution of t h i s question hinged on the meaning of the admittedly vague term "unreasonable" (at pp. 154-155). In an opinion that Gibson (1986, p. 49) characterizes as an "excellent i l l u s t r a t i o n " of t h i s i n t e r p r e t i v e approach, Ju s t i c e Dickson (as he then was) a r t i c u l a t e d three c r i t e r i a , not e x p l i c i t l y mentioned i n the Charter, for determining whether or not searches were 12 [1984] 2 S.C.R. 145. 110 unreasonable. The three c r i t e r i a - "objective standards" regarding the timing of an authorization, the degree of i m p a r t i a l i t y of the authorizing o f f i c i a l , and the degree of proof required to warrant issuing an authorization (at pp. 160ff.) -were explicated and j u s t i f i e d by resorting to an accepted i n t e r p r e t i v e guideline. This i n t e r p r e t i v e rule permitted appeals to the recognized purposes of the law - i n t h i s case, to the reasons for protecting individuals against government searches -i n applying c o n s t i t u t i o n a l provisions. Thus, the secondary rule of a p p l i c a t i o n , and not the e x p l i c i t denotation of the primary rule, provided the Court with the j u s t i f i c a t i o n for concluding that the Charter prohibited searches of the kind authorized by the d i r e c t o r of the Combines Investigation Branch. This case i s i l l u s t r a t i v e of an apparent paradox i n j u d i c i a l decision making - i n Anglo-American law, where we recognize a d i v i s i o n of powers between the j u d i c i a l and l e g i s l a t i v e branches (Zander, 1980, p. 49), judges are expected to decide cases i n accordance with the law and yet our laws cannot be i n f l e x i b l e . In other words, there i s a tension between avoiding the problem of j u d i c i a l tyranny and reaping the benefits of open-ended provisions. In discussing t h i s problem, Tushnet ( 1 9 8 3 , p. 784) concludes that the solution l i e s with second-order standards that control j u d i c i a l decision making: Our system, however, provides no way to enforce c o n s t i t u t i o n a l theory coercively; and i f i t did, the problem of how to constrain the constrainers would merely s h i f t up one l e v e l . In consequence, c o n s t i t u t i o n a l theory can constrain judges only by creating standards for c r i t i c i s m I l l and, to the extent that the standards are i n t e r n a l i z e d by the judges, for s e l f - c r i t i c i s m . I m p l i c i t i n t h i s reference to the need for accepted standards of c r i t i c i s m i s recognition of Hart's notion of the i n t e r n a l aspect of rules - rules whose existence and force depends on t h e i r acceptance as grounds for j u s t i f i c a t i o n and c r i t i c i s m by the community of judges (CL, pp. 111-113). I t i s suggested that therein l i e s the key to understanding the nature of the balance struck between j u d i c i a l tyranny and mechanical jurisprudence. The perception that either j u d i c i a l reasoning i s a matter of mechanical jurisprudence ( i . e . , a straightforward matter of deciding whether or not a case f a l l s within the e x p l i c i t ambit of an established primary rule) or i t i s not, i n which case i t i s extra-regulatory ( i . e . , resolution of the s i t u a t i o n cannot be decided i n l i g h t of established r u l e s ) , i s a f a l s e one. This view f a i l s to appreciate the guidance and f l e x i b i l i t y possible within a l e g a l system where secondary rules e s t a b l i s h grounds for j u s t i f y i n g the subsumption of a p a r t i c u l a r s i t u a t i o n under a primary rul e . Thus, i n a fundamental way, a p p l i c a t i o n of law i s a union of primary and secondary rules. The more complete account of the nature of these secondary rules i s the focus of the next sections and the following three chapters. 2. The basic elements of a rule-guided model I t has variously been suggested that j u d i c i a l reasoning consists i n one or more of the following forms of l o g i c : 112 deduction,13 induction,14 analogous reasoning,15 p r i n c i p l e d reasoning,16 or " h o l i s t i c " reasoning.17 While more w i l l be said about the appropriateness of p a r t i c u l a r suggestions, there i s a general problem with sorting through which form(s) of reasoning best account for j u d i c i a l decision making. These forms of reasoning overlap,18 and i t i s not cle a r whether these accounts describe how l e g a l p r a c t i t i o n e r s t y p i c a l l y construct arguments or whether they o f f e r a reconstruction of the l o g i c of p r a c t i t i o n e r s ' arguments. I t may be useful, i n sorting through these c o n f l i c t i n g recommendations, to draw three i n t e r r e l a t e d d i s t i n c t i o n s - to d i s t i n g u i s h between (1) the general structure of j u d i c i a l argumentation, (2) the mode(s) of reasoning employed i n constructing i n d i v i d u a l arguments, and (3) the standards for assessing an argument's a c c e p t a b i l i t y . For example, imagine an Oxford s t y l e debate where the basic structure consists i n presentation and rebuttal of arguments for and against a given resolution. Competing arguments may be offered in the form of analogies or syllogisms, and the a c c e p t a b i l i t y or soundness of 13 MacCormick (1978, pp. 19-52) argues that t h i s i s the basic form of ru l e a p p l i c a t i o n i n easy cases. 14 Hart suggests that a number of writers including, presumably, G.W. Patton characterize some elements of j u d i c i a l reasoning in terms of t h i s form (PPL, p. 269). 15 Levi (1964, p. 267) emphasizes t h i s form of reasoning. 16 Weschler (1959) i s the most prominent, early advocate of t h i s form of reasoning i n hard cases. 17 This i s the term Mackie (1984, p. 169) uses to describe Dworkin's conception of j u d i c i a l decision making. 18 For example, i n assessing the soundness of a deductive argument whose major premise i s a value p r i n c i p l e i t would be appropriate to t e s t the a c c e p t a b i l i t y of the major premise by applying considerations involved i n reasoning from p r i n c i p l e . 113 these arguments may be challenged by competing analogies or by attacks on the v a l i d i t y of the conclusions or the truth of the premises. Notice the standards for assessing c r e d i b i l i t y may depend on the int e r n a l l o g i c of the p a r t i c u l a r form of argument used or they may be drawn from other forms of argument. Viewing j u d i c i a l reasoning through t h i s loose typology allows us, for example, to accept the appropriateness of standards of deductive l o g i c i n assessing the soundness of j u d i c i a l decision making without accepting that i t i s a mode of reasoning lawyers and judges use i n constructing t h e i r arguments ( i . e . , i n j u s t i f y i n g t h e i r decisions) or, for that matter, that i t exhausts the appropriate standards for appraising j u d i c i a l decisions. Distinguishing between the structure, modes and standards of j u d i c i a l reasoning also helps i d e n t i f y and organize d i f f e r e n t elements i n suggested accounts of j u d i c i a l reasoning. For example, Dworkin (1986) of f e r s an account of j u d i c i a l reasoning where the general structure of j u d i c i a l argumentation involves j u s t i f i c a t i o n of propositions of law i n l i g h t of an o v e r a l l coherence theory of law, the p r i n c i p a l mode of reasoning employed i s characterized as " a r t i s t i c " interpretation, and the dominant standards of assessment are " f i t " and "best l i g h t . " 1 9 As I have indicated, the conception of j u d i c i a l reasoning that I propose builds on Hart's conception of law as the union of primary and secondary rules. Let us now examine each of the elements of t h i s account of j u d i c i a l reasoning. 19 Dworkin's account of j u d i c i a l reasoning w i l l be considered in chapter eight. 114 2.1 The structure of j u d i c i a l arguments In a p a r t i c u l a r l y i lluminating manner, Quebec Chief J u s t i c e Deschenes' opinion i n Quebec Association of Protestant School  Boards v. Attorney-General of Quebec (No. 2)20 captures the basic structure of j u d i c i a l reasoning. The case involved the c o n s t i t u t i o n a l i t y of statutory r e s t r i c t i o n s on the ri g h t s of parents to send t h e i r children to English-speaking public schools. In that portion of the opinion dealing with the reasonable l i m i t s provision of the Charter, the Chief J u s t i c e summarized the p l a i n t i f f s ' nine arguments against and the respondent's eleven arguments for the c o n s t i t u t i o n a l i t y of the r e s t r i c t i o n (at pp. 79-88). These arguments were based on a var i e t y of grounds including the nature of c o n s t i t u t i o n a l documents, Parliamentary intentions, basic rights of c i t i z e n s h i p , the legitimacy of the statutory purpose, and the l i k e l y consequences i f the r e s t r i c t i o n s were rescinded. While most arguments presented independent reasons for a conclusion, others were i n t e r r e l a t e d arguments and some were offered to counter opposing arguments. In weighing the arguments, the Chief J u s t i c e raised two considerations: whether the arguments warranted the conclusions they purported to es t a b l i s h and whether the c o l l e c t i v e force of one set of arguments j u s t i f i e d deciding the case i n favour of one of the parties (at pp. 88-90). The Chief J u s t i c e concluded that the respondent's arguments were both inadequate to sustain the contention that the r e s t r i c t i o n was 20 [1982] 140 D.L.R. (3d) 33. 115 necessary and of i n s u f f i c i e n t force to meet the burden of proof required of them by the Charter provision. This case i s c h a r a c t e r i s t i c of the structure of j u d i c i a l reasoning. Numerous writers have portrayed t h i s structure as the assessment of independent reasons for and against a p p l i c a t i o n of a rule.21 As Hart suggests, i n d i f f i c u l t cases: judges marshal i n support of t h e i r decisions a p l u r a l i t y of such considerations [ p o l i c i e s , p r i n c i p l e s , standards] which they regard as j o i n t l y s u f f i c i e n t to support t h e i r decision, although each separately would not be. Frequently these considerations c o n f l i c t , and courts are forced to balance or weigh them and determine p r i o r i t i e s among them. (PPL, p. 271) This type of j u s t i f i c a t i o n has been referred to as "conductive arguments." Its name derives from the fact that arguments provide relevant, and often d i s t i n c t , reasons for a conclusion - they are conducive to a conclusion - but do not deductively e n t a i l i t (Govier, 1985, p. 260).22 This structure i s not l i m i t e d to contentious cases. In fact, i t suggests a basic s i m i l a r i t y of reasoning i n d i f f i c u l t and r e l a t i v e l y straightforward cases. An easy case would simply be one where eit h e r there are no l e g a l l y v a l i d reasons to support a decision i n favour of one of the sides, or the v a l i d reason(s) are c l e a r l y outweighed by arguments for the opposing side. Of course, judges 21 See, for example, Bodenheimer (1969, pp. 378ff); Farrar (1984, pp. 52-53); Gottlieb (1968, p. 71); Holmes (1966, p. 184); Levenbook (1984, p. 16); Lloyd (1981, pp. 268-269); Lyons (1985, pp. 327-328); MacCormick (1978, pp. 11-12); Sartorius (1968, p. 178); and Stone (1964, p. 327). 22 The cumulative e f f e c t of discrete reasons j u s t i f y i n g a legal decision have been characterized as "the legs of a chair not the l i n k s of a chain" (Farrar, 1984, p. 52). 116 are r a r e l y asked to consider cases when one side has no reasons, or r e l a t i v e l y weak reasons, for contesting a case. I t i s also i n t e r e s t i n g to note that counsel for each side has primary r e s p o n s i b i l i t y for providing the arguments that judges must assess and weigh (MacCormick, 1978, pp. 122-123). In fact, judges are generally reluctant to address an issue that has not been argued before them (MacCormick 1978, p. 123; Weiler, 1968, p. 416)23 and they are expected to adjudicate disputes by resolving only that which i s required to reach a conclusion given the arguments presented (Read, 1986, p. 163). 2.2 The modes of j u d i c i a l reasoning A second element of j u d i c i a l reasoning i s the form i n which arguments are constructed. I suggest that three modes of reasoning or general types of arguments are used by lawyers and judges. Reasons for a given d i s p o s i t i o n of a case w i l l be: (1) based on interpretations of the meaning of the relevant primary rule, (2) derived from precedents established i n previous decisions, and (3) based on evaluations i n the l i g h t of broader l e g a l standards of the p r i n c i p l e s implied by the suggested a l t e r n a t i v e resolutions of the case.24 These modes w i l l be referred to as reasoning from in t e r p r e t i v e guidelines, reasoning 23 For example, i n Hunter v. Southam Inc. [1984] 2 S.C.R. 145 at p. 169, the Supreme Court of Canada refused to consider whether the provisions of the Combines Investigation Act could be salvaged under the reasonable l i m i t s section of the Charter because the Crown had not argued the point. 24 A l l modes of reasoning r e l y on preexisting p r i n c i p l e s i n deciding cases; reasoning from p r i n c i p l e receives i t s name from the fa c t that i t provides standards by which the consequences of adopting a new p r i n c i p l e are assessed. 117 from p r i o r cases, and reasoning from p r i n c i p l e . While there i s general agreement that the courts entertain the f i r s t two forms of reasoning, there i s disagreement about what each involves and l i t t l e recognition that they are rule-guided. The t h i r d mode of reasoning i s less widely recognized although i t has been i d e n t i f i e d i n various forms by many writers including Gottlieb (1968), MacCormick (1978), Weiler (1974), and Weschler (1959). These modes of reasoning are discussed i n d e t a i l i n the following three chapters. 2.3 The standards for assessing arguments The modes of reasoning comprise constellations of secondary rules that control the application of laws by regulating the grounds upon which decisions are j u s t i f i e d . While the c r i t e r i a for assessing, say, int e r p r e t i v e arguments w i l l d i f f e r i n d e t a i l from those used to assess reasons based on precedent, there are three general categories of c r i t e r i a common to a l l three modes of reasoning. F i r s t , judges must know what counts as a good argument for applying the law i n a p a r t i c u l a r s i t u a t i o n . This implies that the modes of reasoning must provide c r i t e r i a that d i f f e r e n t i a t e those reasons that are l e g a l l y acceptable reasons from among the universe of possible reasons for a decision. I f app l i c a t i o n of rules i s not to be a r b i t r a r y or simply discretionary, judges must not be at l i b e r t y to choose any reason as a reason for a decision - the reason must be a l e g a l l y sanctioned reason. This set of 118 standards establishes the v a l i d i t y of a l e g a l argument.25 In addition to establishing the v a l i d i t y of a p a r t i c u l a r kind of argument, there must be standards for v e r i f y i n g the claims that are a t t r i b u t e d to the argument. For example, while i t i s l e g a l l y permissible i n applying the law for judges to appeal to the statute's purpose - i . e . , i t i s a v a l i d reason for a l e g a l decision - not any manner of speculation about that purpose w i l l be accepted.26 Judges must es t a b l i s h what defensibly can be taken to be the purpose of the statute - that i s , what would constitute evidence of that purpose. This set of standards establishes c r i t e r i a for v e r i f y i n g the claims of a l e g a l argument. A further set of standards i s implied by characterizing the structure of j u d i c i a l reasoning i n terms of conductive arguments. Since judges w i l l be confronted with arguments for and against a p a r t i c u l a r decision, c r i t e r i a for weighing the r e l a t i v e force of opposing sets of arguments must be provided. This set of standards establishes the weight of l e g a l arguments. I w i l l now consider the nature of these three sets of standards and t h e i r r e l a t i o n to secondary rules of a p p l i c a t i o n . 25 V a l i d i t y i s used to r e f e r to the legitimacy of o f f e r i n g a p a r t i c u l a r kind of argument as a l e g a l argument. This sense of v a l i d i t y i s the same as what i s meant when a rule i s i d e n t i f i e d as a l e g a l l y v a l i d rule. V a l i d i t y does not r e f e r to claims about the formal l o g i c of an argument (e.g., that a conclusion i s necessarily implied by the premises of a deductive argument). 26 For example, i n B r i t a i n and to a lesser extent i n Canada, p o l i t i c i a n s ' statements about what they were attempting to achieve by a p a r t i c u l a r piece of l e g i s l a t i o n are,not accepted as r e l i a b l e indicators of a statute's purpose. 119 3. Secondary rules of application While I suggested that a rule-guided account of j u d i c i a l reasoning need not imply that application of law i s l i m i t e d to the e x p l i c i t l y designated extension of preexisting rules, there i s an important sense i n which j u d i c i a l decisions must be grounded i n preexisting, generally accepted rules. I f leg a l standards f a i l to control j u d i c i a l decision making, then judges are free to make up arguments for applying a law as they go along or, at least, they have wide d i s c r e t i o n i n t h e i r decisions. However, there i s a widely shared view that judges are authorized only to resolve cases according to the law. As Weiler (1968, p. 420) suggests, the adversarial model of adjudication " i s meaningless unless the parties can know before t h e i r preparation and presentation of the case the p r i n c i p l e s and standards which the a r b i t e r i s l i k e l y to fin d relevant to his d i s p o s i t i o n of the dispute." And as B e l l (1985, p. 230) c l e a r l y recognizes: " i t i s a central feature of a legal system that the decisions made by a judge have to be j u s t i f i e d i n terms of standards and reasons accepted within that system." This requirement i s analogous to the need for public c r i t e r i a by which to recognize primary rules as v a l i d l e g a l rules. If a theory of j u d i c i a l reasoning i s unable to explain how legal standards control j u d i c i a l decisions then the theory has inadequately accounted for a c r u c i a l dimension of acceptable j u d i c i a l practice. The account of j u d i c i a l reasoning I propose accounts for the standards that 120 control j u d i c i a l decision making i n terms of a c l a s s of secondary rules which I c a l l rules of application. Secondary rules of application, l i k e others of Hart's classes of rules, depend for t h e i r v a l i d i t y on secondary rules of recognition and ultimately on a master ru l e of recognition. In other words, rules of recognition s t i p u l a t e c r i t e r i a that other rules must meet i f these other rules are to be l e g i t i m a t e l y recognized as v a l i d rules of the l e g a l system. Paraphrasing Hart, to say that a secondary rule of a p p l i c a t i o n " i s v a l i d i s to recognize i t as passing a l l the tests provided by the rule of recognition and so as a rule of the system" (CL, p. 100). The forms of these "t e s t s " include "reference to an authoritative text; to l e g i s l a t i v e enactment; to customary prac t i c e ; to general declarations of s p e c i f i c persons, or to past j u d i c i a l decisions i n p a r t i c u l a r cases" (CL, p. 97). Therefore, we should expect to f i n d secondary rules of application i n c l a s s i c l e g a l works such as Maxwell on the Interpretation of Statutes, in the statutes themselves, i n conventions of j u d i c i a l practice, and i n j u d i c i a l opinions. In the balance of t h i s section, I o f f e r a sampling of the rules of application that e s t a b l i s h standards for argument v a l i d i t y , v e r i f i c a t i o n and weight; i n the following three chapters these rules are discussed i n the context of p a r t i c u l a r modes of reasoning. 121 3.1 Rules of argument v a l i d a t i o n If j u d i c i a l reasoning i s rule-guided, judges and lawyers require secondary rules providing c r i t e r i a for recognizing reasons as v a l i d l e g a l reasons for deciding a case. I w i l l r e f e r to these rules as argument v a l i d a t i n g rules. Several Continental writers, most notably Perelman, have recognized t h i s feature of j u d i c i a l reasoning (Stone, 1964, pp. 327-331; Bodenheimer, 1969, pp. 381-384). Following A r i s t o t l e ' s account of "topoi" and Cicero's notion of " l o c i , " they characterize l e g a l reasons as proceeding from accepted "seats of argument" - agreed s t a r t i n g points from which v a l i d arguments are developed. In other words, an accepted rule provides the le g a l anchor for, or establishes the l e g a l v a l i d i t y of, an argument. Unless grounded i n law, judges cannot entertain an argument - cannot consider i t as a reason for deciding a case one way or another ( B e l l , 1985, pp. 23, 27, 35; Levenbook, 1984, pp. 4-5; MacCormick, 1978, pp. 11-12). For example, as was suggested when discussing the case c i t e d by MacCormick, the interpretation given "non-merchantable l goods" i n the p r i o r case i s a reason for accepting the pub owner's c u l p a b i l i t y only because i t i s agreed that interpretations reached i n p r i o r cases are appropriate grounds for resolving disputes i n subsequent cases.27 This rule of argument v a l i d i t y i s part of the doctrine of stare d e c i s i s . 27 As I w i l l explain l a t e r i n t h i s chapter and i n subsequent chapters, the need for rules of argument v a l i d i t y does not preclude the p o s s i b i l i t y of new secondary rules of ap p l i c a t i o n being introduced into a l e g a l system i n the course of deciding a case. 122 Another rule, also related to the doctrine of precedent, recognizes the v a l i d i t y of appeals to p r i o r decisions i n other j u r i s d i c t i o n s . For example, i n Clarkson v. Canadian Indemnity  Co. 28 i t was accepted that *'[I]n the absence of binding authority i n one's own j u r i s d i c t i o n , assistance should be sought where i t can be found, whether from the Courts of other provinces of Canada or from the Courts of other countries." As has been suggested, there are three general types of v a l i d arguments: arguments based on int e r p r e t i v e guidelines, p r i o r cases and p r i n c i p l e . Each of these modes of reasoning i d e n t i f i e s a wide range of potential arguments that can be marshaled i n support of a j u d i c i a l decision. For example, i n interpre t a t i o n , judges are authorized to appeal to the statute's purpose as a reason for deciding the meaning of the rule i n a given s i t u a t i o n (Frankfurter, 1947, p. 538). One of Dworkin's important contributions to our understanding of j u d i c i a l reasoning i s his emphasis on the role of leg a l p r i n c i p l e s i n providing reasons for and against application of a rule i n a given s i t u a t i o n (TRS, p. 26). While Dworkin rejects the existence of e x p l i c i t c r i t e r i a that sharply d i s t i n g u i s h l e g a l and moral p r i n c i p l e s , even he recognizes the notion of v a l i d l e g a l argument.29 I w i l l consider the extent to which these rules of 28 [1979] 101 D.L.R. (3d) 146. 29 In c r i t i c i z i n g U.S. Supreme Court J u s t i c e candidate Robert Bork, Dworkin (1985, p. 39) i n s i s t s that judges "should use the normal s t y l e of leg a l analysis" and accuses Bork of exhib i t i n g "blatant d i s t a s t e for ordinary l e g a l argument" (1984, p. 27) and of "judging by f i a t because he made no serious l e g a l argument at a l l " (1985, p. 40). 123 argument v a l i d i t y e s t a b l i s h the necessary pedigree for a l l acceptable l e g a l arguments throughout the three succeeding chapters and i n chapter eight. 3.2 Rules of argument v e r i f i c a t i o n A second type of c r i t e r i o n for rule-guided adjudication deals with v e r i f y i n g the claims implied by a le g a l argument. The secondary rules of application providing these standards w i l l be c a l l e d argument v e r i f i c a t i o n r u l es. In the example involving the sale of contaminated lemonade, MacCormick's account of the judges' reasoning implied two rules: (1) a rule (of argument v a l i d i t y ) establishing the v a l i d i t y of arguing from interpretations decided i n p r i o r cases, and (2) a rule (of argument v e r i f i c a t i o n ) establishing c r i t e r i a for v e r i f y i n g that the s p e c i f i c a l l y mentioned p r i o r case established the d e f i n i t i o n that MacCormick attributes to i t . The l a t t e r rule derives from the doctrine of precedent: the r a t i o decedendi - the rule established by a p r i o r case - i s r e s t r i c t e d to what i s considered necessary for reaching the decision. I f the p r i o r case c i t e d by MacCormick had been decided on grounds that did not require acceptance of the d e f i n i t i o n ascribed to non-merchantable goods, then that d e f i n i t i o n would not have been necessary to the p r i o r decision and appeal to the p r i o r case would not e s t a b l i s h the d e f i n i t i o n for the present case. 124 The a d m i s s i b i l i t y i n appellate courts of Brandeis briefs30 to e s t a b l i s h claims about s o c i a l and economic conditions i s another example of rules of argument v e r i f i c a t i o n . So too i s the authority to take " j u d i c i a l notice" - to recognize c e r t a i n propositions as true because they are assumed to be generally accepted facts (e.g., the laws of the state, international law, h i s t o r i c a l events, geographical features). The reluctance i n B r i t a i n and i n Canada to accept statements made by p o l i t i c i a n s as evidence of the l e g i s l a t i v e purpose i s not that these j u r i s d i c t i o n s consider arguments from l e g i s l a t i v e purpose as i n v a l i d . Rather, p a r t i c u l a r l y i n B r i t a i n and to a lesser extent i n Canada, p o l i t i c i a n s ' statements are considered un r e l i a b l e indicators of the purpose.31 It should be noted, that while judges r e l y upon and are bound by these rules, the rules are not always posited or expressly mentioned. That i s , i n any given case judges w i l l not c i t e a l l the rules that t h e i r arguments r e l y upon and a l l the implied rules need not have been expressly formulated p r i o r to t h e i r usage i n j u d i c i a l argument. Certainly many ordinary language conventions and d e f i n i t i o n s are implied i n determining the " p l a i n meaning" of words and yet they are often not e x p l i c i t l y c i t e d . I f pressed, judges would l i k e l y c i t e s p e c i f i c l i n g u i s t i c conventions as evidence for t h e i r claim, or they might 3 0 This type of b r i e f , named a f t e r J u s t i c e Louis Brandeis, contains economic and s o c i a l surveys and studies. 31 This point i s discussed i n chapter f i v e . 125 r e f e r to t h e i r authority to take j u d i c i a l notice of noncontroversial facts.32 3.3 Rules of argument weight A t h i r d dimension of a rule-guided account of j u d i c i a l reasoning are rules establishing standards for weighing the strength of competing positions. This weighting involves assessing the cumulative force of i n d i v i d u a l arguments on each side and deciding whether the required onus of support for a decision has been meet. By and large, a v e r d i c t i n favour of a p o s i t i o n i s warranted i f that p o s i t i o n i s more strongly supported than any other. Therefore, most rules of argument weight specify c r i t e r i a for assessing the r e l a t i v e weight of competing arguments. These rules w i l l be referred to as rules of argument force.33 However, before discussing these rules, I w i l l mention b r i e f l y a less common type of rule of argument weight which I w i l l r e f e r to as rules of argument onus. Rules of argument onus are required because, on some occasions, a greater onus of proof i s required to j u s t i f y a finding i n favour of one of the parties.34 For example, the Charter requires that p a r t i e s 32 I take i t that j u d i c i a l notice i s often i m p l i c i t v a l i d a t i o n of j u d i c i a l appeals to "common sense." While t h i s appeal i s often misused or i n c o r r e c t l y used when judges dubiously assert a proposition that i s far from obvious, i t does not challenge the suggestion that judges are authorized to accept c e r t a i n uncontested claims implied i n t h e i r arguments as " f a c t s " ( B e l l , 1985, p. 36). 33 V a l i d i t y refers to i t s status as a l e g a l argument, while force r e f e r s to the extent of influence i t i s accorded. Arguments that are not l e g a l l y v a l i d can not c o r r e c t l y be ascribed any legal force (Read, 1986, p. 133). 34 The Crown's onus i n criminal cases to e s t a b l i s h the facts beyond a reasonable shadow of doubt i s a well known example of an 126 seeking to place l i m i t s on c o n s t i t u t i o n a l r i g h t s e s t a b l i s h that t h e i r p o s i t i o n be "demonstrably j u s t i f i e d . " In the Protestant  School Boards case referred to e a r l i e r , Quebec Chief J u s t i c e Deschenes noted that there were numerous s i g n i f i c a n t arguments supporting both the parents' English language righ t s and the government's r i g h t to protect the province's francophone heritage. However, the absence of a c l e a r preponderance of support for the government's po s i t i o n j u s t i f i e d upholding the parents' p o s i t i o n . As indicated above, most rules of argument weight specify c r i t e r i a for establishing the r e l a t i v e weight of competing positions. Assessing the strength of each side's positions requires establishing the r e l a t i v e force of i n d i v i d u a l arguments. At l e a s t four factors determine t h i s calculus: (1) the weight or l e g a l importance of the rule upon which the argument i s grounded, (2) the weight or l e g a l importance of the standard implied i n the underlying rule, (3) the magnitude of the implications i n the given case for the implied standard, and (4) the degree of conviction about the truth of claims supporting an argument. (1) Weight of the r u l e . I t was suggested i n the section dealing with argument v a l i d i t y that the v a l i d i t y of every argument i s established by a secondary rul e . The i n t e r p r e t i v e presumption against i n t e r f e r i n g with personal l i b e r t y , for example, holds that in situations where l e g i s l a t i o n i s ambiguous, exception to the general rule that i t i s s u f f i c i e n t that one side provide stronger support than the other. 127 the courts should lean towards the interpretation that protects the freedom of the i n d i v i d u a l . I m p l i c i t i n t h i s r u l e of argument v a l i d i t y i s a weighting of the importance of t h i s type of reason. The presumption against i n t e r f e r i n g with personal l i b e r t y i s a less compelling reason for an interpretation than a reason derived from the "plain-meaning" rule - an in t e r p r e t a t i o n of a statute based on the unambiguous meaning of the terms would t y p i c a l l y override an interpretation based on an i n t e r p r e t i v e presumption. Similar weighting occurs i n other modes of reasoning. For example, i n reasoning from p r i o r cases, the r a t i o of a case may be binding on subsequent judges whereas obiter  d i c t a merely have persuasive authority, the l e v e l of the court i n the j u d i c i a l hierarchy determines the authority i t s decisions carry, an unanimous court opinion c a r r i e s more weight than a s p l i t decision, and so on. An i m p l i c i t rule of argument force i s the "Practice Statement on J u d i c i a l Precedent"35 issued by the English House of Lords which announced that that Court was no longer (absolutely) bound by p r i o r decisions. (2) Weight of the standard. Another factor a f f e c t i n g the force of an argument i s the weight attached to the standard i m p l i c i t i n the rule underlying the argument. For example, in a case involving ambiguity over parental rig h t s to exempt t h e i r c h i l d r e n from school a c t i v i t i e s , the i n t e r p r e t i v e presumption against i n t e r f e r i n g with personal l i b e r t y might imply an appeal to r e l i g i o u s freedoms. That i s , i t might be suggested that 35 [1966] 1 W.L.R. 1234. 128 i n t e r p r e t i n g an educational exemption clause i n a p a r t i c u l a r way-would c u r t a i l parents' freedom of r e l i g i o n . Since r e l i g i o u s freedoms are considered to be "fundamental freedoms," the argument would carry greater weight than i f the presumption i m p l i c i t l y appealed to other personal l i b e r t i e s , such as those dealing with ri g h t s to engage i n ce r t a i n l e i s u r e a c t i v i t i e s . The weight of implied standards i s a function of the h i e r a r c h i c a l ordering of leg a l values - the fact that the law punishes murderers more severely than thieves indicates that human l i f e i s considered a more important l e g a l value than personal property.36 Weightings are also implied by our c o n s t i t u t i o n a l structure. For example, the p r i n c i p l e of l e g i s l a t i v e supremacy means that, i n general, standards established by statutory provision w i l l supersede those embedded i n j u d i c i a l decisions,37 and co n s t i t u t i o n a l paramountcy means that c o n s t i t u t i o n a l provisions w i l l be afforded even greater weight than statutory provisions. Notice, for example, that r e l i g i o u s freedoms had less weight p r i o r to the Charter when t h e i r protection was not entrenched i n the c o n s t i t u t i o n . Often the respective weight of c o n f l i c t i n g standards i s i m p l i c i t i n p r i o r court decisions. For example, the U.S. r u l i n g that personal freedom would y i e l d only i f there was "clear and present danger" to public security establishes a ranking of those two values (Lloyd, 1981, p. 165). 36 In Steel v. Glasgow Iron and Steel Co. Ltd. [1944] S.C. 237 at pp. 248-249, the Court expressly recognized the greater value attached to saving a l i f e than to protection of property. 37 This e f f e c t of t h i s weighting p r i n c i p l e i s moderated by the nonderogation presumption that a statute s h a l l not be interpreted i n a manner that s u b s t a n t i a l l y a l t e r s the common law unless there i s c l e a r i n d i c a t i o n i t was so intended (Johnson, 1978, p. 417). 129 (3) Implications for the standard. A t h i r d factor a f f e c t i n g the force of an argument i s the magnitude of the implications for the standard implied i n a given argument38 -that i s , an agrument's weight depends on the degree to which the implied standard i s v i o l a t e d or respected i n a given situation.39 For example, an argument based on the presumption against i n t e r f e r i n g with personal l i b e r t y would be more compelling i f the interference involved extensive denial of r e l i g i o u s freedoms for large sectors of society than i f i t presented a minor l i m i t on a small group. Imp l i c i t i n t h i s d i s t i n c t i o n i s a rule of argument force to the e f f e c t that, other things being equal, judges should prefer the a l t e r n a t i v e that most advances le g a l values.4 0 I t i s important to appreciate that t h i s does not imply a simple maximization p r i n c i p l e (MacCormick, 1978, p. 115). The greater weight attached to some standards, s p e c i f i c a l l y c o n s t i t u t i o n a l r i g h t s , means that in d i v i d u a l r i g h t s may be upheld despite implying s i g n i f i c a n t negative consequences for other groups. Consideration of consequences i n l i g h t of l e g a l values also implies, as i s authorized by the Charter's reasonable l i m i t s clause, that c o n s t i t u t i o n a l rights can be overridden provided there i s s u f f i c i e n t j u s t i f i c a t i o n for doing so. As we w i l l see 38 Unlike the two previous weighting factors, which are established independent of t h e i r application i n a given case, t h i s factor i s t i e d to the p a r t i c u l a r s of a case. 39 The determination of the consequences of, or implications for, a p a r t i c u l a r standard are lar g e l y regulated by the rules of argument v e r i f i c a t i o n . 40 Vlastos (1962, pp. 60-62) claims that maximization of protected in t e r e s t s and rights i s a requirement of j u s t i c e : "given any two l e v e l s of production of goods known to be possible i n given circumstances, then, other things being equal, the higher should be preferred on grounds of j u s t i c e . " 130 l a t e r i n t h i s chapter, weighing competing arguments of v a r y i n g f o r c e i s o f t e n v e r y d i f f i c u l t , and t y p i c a l l y r e q u i r e s t h a t judges e x e r c i s e judgment i n determining the r e l a t i v e w e i g h t i n g of standards and the magnitude of the i m p l i c a t i o n s f o r those standards i n p a r t i c u l a r s i t u a t i o n s . The d i s t i n c t i o n between the i m p l i c a t i o n s f o r the standard and the importance of the standard i s o f t e n confused. J u d i c i a l d e c i s i o n s based on the former are o f t e n e r r o n e o u s l y c o n s t r u e d t o imply a r a n k i n g of the standards themselves. For example, suppose a case where a reason f o r a p a r t i c u l a r i n t e r p r e t a t i o n of a s t a t u t e i m p l i e d an appeal t o r e l i g i o u s freedoms, and a reason a g a i n s t t h a t i n t e r p r e t a t i o n i m p l i e d an appeal t o economic freedoms. Assume, f o r the sake of argument, t h a t both freedoms were c o n s t i t u t i o n a l l y entrenched and regarded t o be of approximately equal weight. I t would be most a p p r o p r i a t e t o assess the r e l a t i v e f o r c e of the two arguments by c o n s i d e r i n g t h e i r i m p l i c a t i o n s f o r each standard. I f i t was d e c i d e d t h a t the e x t e n t of i n f r i n g e m e n t t o r e l i g i o u s freedoms would be s i g n i f i c a n t l y l e s s than the i n f r i n g e m e n t t o economic freedoms, the l a t t e r argument would have g r e a t e r f o r c e . However, t h i s d e c i s i o n would not imply t h a t the judges determined t h a t economic freedoms per se are more important i n law than r e l i g i o u s freedoms. I t would merely mean t h a t , i n t h i s case, the n e g a t i v e i m p l i c a t i o n s f o r one standard was judged t o be l e s s severe than the i m p l i c a t i o n s f o r another, e q u a l l y important standard. Occasions o f t e n a r i s e where a s m a l l a f f r o n t t o a fundamental 131 principle w i l l be outweighed by the significance of the consequences for an admittedly less fundamental standard.41 This occurs because no standard, regardless of how fundamental a right i t involves, has absolute force (Mackie, 1984, p. 164). (4) Degree of certainty. A fourth factor affecting the weight of an argument is the degree of certainty about the implications for the standard in the given case. If i t i s questionable whether or not a particular consequence follows or an inference i s implied, then an argument is less compelling than i f these conclusions are clearly supported.42 For example, a claim that the legislators' intentions may be assumed to exclude interference with religious freedom has less force than an argument that convincingly establishes that intention. The ju s t i f i c a t i o n for this criterion of weight is apparent - other things being equal, i t would not be rational to attach equivalent weight to two sets of consequences when i t is uncertain i f one set of consequences w i l l actually arise. Before leaving this discussion of secondary rules, a further c l a r i f i c a t i o n i s warranted. It i s potentially misleading to 41 In International Fund for Animal Welfare v. The Queen [1987] 3 0 C.C.C. (3d) 80, the Federal Court ruled that the limited restrictions to freedom of information imposed by curtailing access to the ice flows during the seal hunt were offset by the significant disruption to the seal harvest. (Concern for the safety of participants to the seal hunt was also a reason for limiting access.) 42 Justice Learned Hand wrote in Dennis v. United States [1951] 341 U.S. 494 at p. 501: "In each case [courts] must ask whether the gravity of the " e v i l " , discounted by i t s improbability, j u s t i f i e s such invasions of free speech as is necessary to avoid the danger." 132 d i s t i n g u i s h three types of rules of application since, i n actual practice, accepted secondary rules often specify a l l three types of standards. Consider, for example, the i n t e r p r e t i v e rule known as the "golden r u l e . " An early formulation of the rule stated that, the grammatical and ordinary sense of the words i s to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistentcy with the rest of the instrument, i n which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistence, but no further. (Grey v. Pearson [1857] 6 H.L.Cas 61 at p. 106.) Imp l i c i t i n t h i s master rule are at lea s t f i v e sub-rules of argument v a l i d i t y . In interpreting law, judges are authorized to appeal to: the accepted grammatical use of words, the ordinary meaning of words, possible absurd consequences, possible repugnant consequences, and possible inconsistency with the rest of the statute. In addition, i t can be infer r e d that grammatical and l i n g u i s t i c conventions would be accepted as rules of argument v e r i f i c a t i o n . F i n a l l y , the e x p l i c i t p r i o r i t y of absurdity, repugnancy, or inconsistency arguments over ordinary meaning arguments, and the i m p l i c i t p r i o r i t y of ordinary meaning arguments over other forms of argument (e.g., arguments from l e g i s l a t i v e intention) constitute two rules of argument force. 4. Controversy and rules of application The preceding discussion of secondary rules should not be taken to imply that disputes over the v a l i d i t y , v e r i f i c a t i o n and force of arguments are infrequent. Often there i s no obvious 133 secondary rule c o n t r o l l i n g a p a r t i c u l a r s i t u a t i o n , or i t s appl i c a t i o n i n a given s i t u a t i o n i s controversial. However, these controversies are not, as some c r i t i c s suggest, inconsistent with a rule-guided account of j u d i c i a l reasoning. I propose to defend t h i s p o s i t i o n by exploring b r i e f l y (1) how judges resolve disputes over contentious primary and secondary rules i n a rule-guided manner, and (2) how controversial decisions about the application of rules may s t i l l be controlled by l e g a l standards. 4.1 Disputes over v a l i d i t y In many cases, j u d i c i a l decisions hinge on the v a l i d i t y of a contested secondary rule of argument v a l i d i t y , v e r i f i c a t i o n or force. In other words, i t may often be uncertain whether or not a p a r t i c u l a r rule of application i s acceptable. Controversies over acceptable standards of j u d i c i a l reasoning are not a n t i t h e t i c a l to a model of rules account of j u d i c i a l reasoning as long as there are v a l i d c r i t e r i a for resolving these disputes. As we w i l l now see, Anglo-American law provides these sorts of c r i t e r i a . In fact, disputes over the v a l i d i t y of secondary rules of application, l i k e disputes over the v a l i d i t y of primary rules, are resolved by application of c r i t e r i a embodied i n other secondary rules of recognition i n accordance with the sanctioned modes of reasoning. 134 The Supreme Court of Canada's decision i n R. v. Big M Drug  Mart Ltd43 i s a c l e a r example of reliance on accepted l e g a l standards and modes of reasoning to e s t a b l i s h the v a l i d i t y of disputed primary and secondary rules. In t h i s case, the v a l i d i t y of a primary rule - provisions of the Lord's Day Act -depended, i n part, on the a c c e p t a b i l i t y of a p a r t i c u l a r l e g a l argument which, i n e f f e c t , required determining the v a l i d i t y of a secondary rule of application. More s p e c i f i c a l l y , a c r u c i a l issue i n deciding the c o n s t i t u t i o n a l i t y of the Lord's Day Act was the v a l i d i t y of an established American rule of a p p l i c a t i o n known as the " s h i f t i n g purpose" theory. The American rule held that the purpose that an act.could be taken to serve could change s i g n i f i c a n t l y i f s u f f i c i e n t amendments had been made. The Lord's Day Act, which required the c l o s i n g of r e t a i l stores on Sunday, was o r i g i n a l l y enacted to promote observation of the C h r i s t i a n holy day. Acceptance of t h i s sectarian objective meant that the Act f a i l e d to meet a Charter requirement that l i m i t s placed on ri g h t s be consistent with the p r i n c i p l e s of a "free and democratic society." I f the Act could be shown to have subsequently acquired a secular e f f e c t - say, to safeguard a uniform day of rest for employees - then i t would be less l i k e l y to v i o l a t e the Charter. The Crown defended t h i s argument by appealing to several United States decisions as evidence for the v a l i d i t y of the s h i f t i n g purpose theory. The v a l i d i t y of the Crown's argument was challenged and ultimately rejected by the Supreme Court i n the face of counter-arguments based on reasoning 43 [1985] 18 D.L.R. (4th) 321 at p. 352. 135 from p r i n c i p l e and an i m p l i c i t rule of argument force. The