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Function of purpose in the legal system Skonieczna, Vanda 1977

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THE FUNCTION OF PURPOSE IN THE LEGAL SYSTEM by VANDA SKONIECZNA L.L.B., U n i v e r s i t y of E x e t e r , 1975 A THESIS SUBMITTED IN PARTIAL ITJLFILMENT OF THE REQUIREMENTS FOR THE DEGREE DP MASTER OF LAWS i n THE FACULTY OF GRADUATE STUDIES (School of Law) We accept t h i s t h e s i s as conforming to the r e q u i r e d standard THE UNIVERSITY OF BRITISH COLUMBIA October, 1977 6 Vanda Skonieczna, 1977 In presenting th i s thes is in pa r t i a l fu l f i lment of the requirements for an advanced degree at the Univers i ty of B r i t i s h Columbia, I agree that the L ibrary sha l l make it f ree ly ava i l ab le for reference and study. I fur ther agree that permission for extensive copying of th i s thesis for scho lar ly purposes may be granted by the Head of my Department or by his representat ives. It is understood that copying or pub l i ca t ion of this thes is for f inanc ia l gain sha l l not be allowed without my writ ten permission. Department of law The Univers i ty of B r i t i s h Columbia 2075 Wesbrook Place Vancouver, Canada V6T 1W5 Date 2 4 August 1977 ABSTRACT Most social practices nave some purpose or another to f u l f i l that justifies their existence. Indeed, we explain many formal and informal rules by reference to their particular raison d'etre. The reason for doing something, then, is clearly of major importance in considering the nature of the relevant practice as a whole. If this is true of informal social practices i t must also follow for the legal system. The thesis of this essay, therefore, is that law is a purposeful activity and that such purposes have a very significant function within the system of law. Particular emphasis is placed upon the role that purpose plays in the decision-making process. It is argued to be a part of the law itself as opposed to some extra-legal criterion that may he taken into account. The law is not, in fact, neutral as to goals. The first chapter constitutes a study of the major theories of law in relation to their respective interpretations of the function of goals in the legal system. The schools of Positivism and Natural Law are examined as representing the polar positions in the debate. Then the intermediate standpoints of the Sociological jurisprudents and other writers are discussed. The basic issue here is whether i t is at a l l possible to attribute an important role to purpose in this field. In chapter 2 a classification of goals is presented with a discussion of how i t was derived and the problems that arose in doing so. If we are able to use goals in some way in the decisionmaking process i t is necessary to look at various methods by which this can be done. This ( i ! i i ) task is the subject of the final chapter. The problems involved in using goals and especially the fundamental difficulty of identifying the goals are examined. Some of the theories discussed in the fi r s t chapter are re-examined and evaluated. The possible limits upon the practicality of using purpose in the ways discussed have not yet become clear. However, i t does appear that there is great potential for using purpose in the decision process. It offers a means for resolving many disputes and, frequently, even hard cases may be settled by looking to the purposes of the rules concerned. The exercise of drawing up a classification of goals has proved to be a practical method of assessing the viability of using purpose and a valuable indicator as to the major drawbacks to doing so successfully. ( i v ) TABLE OF CONTENTS Page-I. INTRODUCTION 1 II. THE ROLE OF PURPOSE IN THE TRADITIONAL THEORIES OF LAW 3 1. Natural Law and Positivism 3 A. The Traditional Doctrine of Natural Law 3 B. Fuller and the Teleological Viewpoint 10 C. Positivism 14 D. Hart's Positivist Model of Law 15 2. The Sociological Jurisprudents 18 A. Pound and Stone 18 B. Lasswell and McDougal: A Theory About Law 25 C. Relsman 30 D. Hartzler 34 3. Alternatives 38 A. Dworkin 38 B. Hughes 41 C. Summary 45 4. The Causal Theory of Law 46 A. General 46 B. The Nature of the Goals 49 C. The Exceptions to Rules 50 D. Comment 53 III. THE CLASSIFICATION OF GOALS 56 1. The Method of Formulation of the Classification 56 2. The Goal Classification 61 3. Comment 95 (v) Page IV. THE FUNCTION OF PURPOSE 98 1. Introduction 98 2. Purpose as i t operates i n the J u d i c i a l 103 D e c i s i o n 3. The problem of i d e n t i f y i n g goals • 104 4. How purpose may be used i n p r a c t i c e . 113 A. G o t t l e i b 113 B. Dworkin Re-examined 117 5» A summary of the use of goals 124 6. Examples 131 V. CONCLUSION 143 BIBLIOGRAPHY 149 I . INTRODUCTION - 1 -In the m a j o r i t y of t h e o r i e s o f law th a t e x i s t some c o n s i d e r a t i o n has u s u a l l y been given to the r o l e purpose o r purposes i n the l e g a l system. The d i f f e r e n c e between those t h e o r i e s l i e s i n the way i n which purpose i s seen to operate w i t h i n t h a t system. I n most cases purposes are regarded as c r i t e r i a extraneous to the law which form g u i d e l i n e s o r signposts to decision-making, but which are n o t , themselves, a spart of the law. There seems to be scope f o r examining the r o l e of purpose anew i n the l i g h t o f these t h e o r i e s and e s p e c i a l l y w i t h reference to i t s f u n c t i o n i n the decision-making process. I f our laws are formulated and enforced i n order to f u l f i l some go a l i n s o c i e t y i t i s l o g i c a l to presume that that goal p l a y s an important r o l e i n the o v e r a l l system of the law and, moreover, that i t i s i t s e l f a c o n s t i t u e n t of th a t system. Thus, i f we can o b t a i n a d e t a i l e d and comprehensive f o r m u l a t i o n of the major goals prevalent i n our l e g a l system i t may become c l e a r e r as to how we may use them. I t i s , t h e r e f o r e , the aim of t h i s essay to examine the f u n c t i o n of purpose i n the l e g a l system and to attempt a c l a s s i f i c a t i o n of goals t h a t e x i s t i n the system. No such c l a s s i f i c a t i o n can he exhaustive and i t may be open to debate i n r e l a t i o n to the categ o r i e s of goals adopted. However, attempting the c l a s s i f i c a t i o n w i l l g i v e us some impression of the d i f f i c u l t i e s inherent i n the e x e r c i s e and of the p o t e n t i a l u t i l i t y of l o o k i n g a t purpose i n t h i s way. In the f i r s t chapter the various t h e o r i e s o f law are examined i n r e l a t i o n to t h e i r r e s p e c t i v e views o f the r o l e o f purpose i n the law. The emphasis - 2 -in this part of the essay is upon whether we can attribute at a l l a significant role to purpose as part of the law. The alternative view is that purpose, however useful i t may be in determining judicial decisions, is s t i l l an extra-legal consideration. In the "hard cases" that come before the courts the judge is often presented with the alternatives of either f u l f i l l i n g the ends of certainty in following rigidly the dictates of the rule, or of satisfying a desire for a just result. Purpose, i t will be seen, may offer a method of avoiding this dilemma. In chapter 2 the classification of goals is presented with a discussion of how i t was formulated. The problems that arose in drawing up the classification are considered. The final chapter of the essay takes up from the previous chapter the discussion of the problems involved in using purpose. If i t is accepted that goals do play an important part in the law then the next question must relate to exactly how we may use them and what difficulties may face us in doing so. Some of the theories mentioned in the fi r s t chapter are re-examined and an attempt is made to discover whether the same indeterminacy that was faced by those theories is resolved by the use of purpose or whether purpose itself is subject to areas of vagueness where a choice between goals is forced upon us. The fundamental problem is thus one of identifying goals with sufficient clarity. There may be a number of difficulties inherent in taking an expanded view of purpose as a part of the law, nevertheless i t appears to have considerable potential in explaining how marginal, and even hard cases should be decided. - 3 -IT• THE ROLE OF PURPOSE IN THE TRADITIONAL THEORIES OP LAW. In many of the theories of or about law that exist to date varying degrees of significance have been placed upon the role played by goals in the legal system. Essentially though, where goals have been considered by commentators, their relevance has been viewed more in an abstract, theoretical light than in terms of their practical u t i l i t y . The classification to be proposed in this thesis constitutes a move towards a different perspective regarding the structure of goals in a legal system, and the basic theory behind this concept is to be distinguished from previous approaches that have been taken. However, in order to be able to appreciate this distinction i t is important to obtain a clear idea of the positions adopted by writers in this field and of the relationship between them. To this end the present chapter takes the form of a survey of the various theories and discusses each in the context of the perspective that i t gives on the relationship between laws (as embodied in rules) and the purposes or goals of those laws. 1. NATURAL LAW AND POSITIVISM A. THE TRADITIONAL DOCTRINE OF NATURAL LAW These theories of Natural Law and Positivism represent what may be described as the polar positions in the debate on law. Natural law has its origins in Greek philosophy and, to the Greeks, i t was seen as the law governing the universe. However, the Greeks were not interested in natural law embodied in the form of normative rules and so the ambit given to the concept was so wide as to be almost devoid of juristic significance. Under the Stoics natural law as a philosophy gained its ascendancy and great stress was placed on the universality of law and hence the basic equality of a l l men. - 4 -The basis for natural law was seen as being a person's sense of reason, that i s , reason would point out to an individual those rules which were necessary for existence in society. Cicero stated that "True law is right reason in accordance with nature"^". Alternatively, the foundation 2 of natural law is seen as being the commands of God. The obvious problem with this view is that i t presupposes the existence of some Divine Being and necessitates a belief in that Being for the concept to have any meaning. From another viewpoint Thomas Aquinas sought to combine the "theological" interpretation of natural law with the Greek element of reason and propounded a kind of unified theory. Again, this view presupposes a belief in God. Aquinas stated that God created the universe to f u l f i l some overall plan and this plan Aquinas entitled Eternal law. He amplifies this by saying that there are parts of this plan that would be comprehensible even to a limited intelligence such as that of human beings and, as reasoning beings, we should be able to work out those parts of the plan for ourselves. This Aquinas calls natural law. Further, he sees that there will be parts of God's plan that we shall not be able to grasp unaided and these God must communicate to us via the media of the Scriptures and the teachings of the Church. This aspect encompasses the traditional Divine law concept of St. Augustine and other theologians. Finally J&uinas envisages a fourth category of law that he calls Human law, (in effect, we regard this as positive law). 1. Cicero, De Re Publica, 211; III 22. 2. St. Augustine, Celestial City. - 5 -He acknowledges that the principles of Divine law and natural law are rather vague and that the details must be elaborated. It is the duty of human legislators to do this and although the positive law may vary from 5 time to time and from place to place the differences with the "higher law" should never be too great. It is in this area concerning the nexus between the precepts of natural lav: and the actuality of positive law that the problems arise. Natural law may be defined in teleological terms, that is, it is the embodiment of certain rules that regulate human conduct that man, as a rational being, can appreciate as being necessary to enable man to attain the particular state or end designated by God or Nature. However, the difficulty is to determine just what are those rules and, in addition, what are the ultimate purposes served by them. Positive laws vary with time and locality and i f , as proponents of natural law argue, the relationship between those laws and natural law is contingent, are we to evaluate positive law according to its degree of conformity with natural law? If this is so i t would seem to follow that natural law guarantees absolute goals, ihat is goals that are valid for a l l time and, plainly, this cannot be accepted. Normally positive law is merely an approximation of natural law. There are a vast number of rules of positive law that can be enunciated but relatively few principles of natural law can he stated with any degree of certainty. It is not contended that natural law should be as detailed as positive law but i t should not be too vague or abstract or i t would be impossible to maintain any significant relation between them. The concept of natural law is of small practical use unless we are able to compare the laws of a particular state with natural law goals in order to ascertain their conformity or contradiction. 3. The fundamental conception of natural law is that i t is a transcendent kind of law that is eternal and immutable. - 6 -On close reflection on the problem there appear to be very'few "rules" of natural law that can truly be said to be of universal application* Differences of culture and locality are plainly going to narrow down the area of laws that are accepted as being of overriding priority. Indeed, it is an important point that priorities of different societies and cultures can and do differ and i t is possible that we might find a lack of consensus on what constitutes the fundamental principles of natural law. In fact, i t has been suggested ^  that i t is inaccurate to talk of fundamental "principles" at a l l as this involves circularity. For example, the precept "Thou shall not k i l l " is not valid for a l l circumstances, though competing values may be recognised. Most societies have at some time condoned or legitimized killing by the institution of capital punishment and similarly, most are prepared to engage in warfare. Possibly, i t is preferable to talk in terms of fundamental "areas" of legal concern, that i s , areas of human behaviour that must be guided by positive rules for the minimal functioning of society. Many natural law theorists have used the decalogue as a basis for natural law and argue that i t possesses the qualities of "certainty, universality and immutability" but, to use the previous example, the simple injunction "Thou shall not k i l l " can have far reaching consequences. For instance, how are we to deal with such questions as the position of the executioner, the issue of abortion and of euthanasia? Such a principle gives no guidance on the latter and on the formulation of exceptions to the rules that must be accounted for such as the defences of provocation, automatism and self-defence, to name but a few. Of course, i t is a good general precept that most societies would endorse but, as a practical rule 4« D.L. Perrott, The Logic of Fundamental Rightsf Fundamental Rights. Essays to Commemorate the 50th. Anniversary of the founding of the Law School in Exeter. (London: Sweet and Maxwell, 1973). - 7 -i t is l i t t l e better than a starting point from which to evolve a more complex system of rules. Alternatively, another form of basic principle that has been suggested is the one that states;"What is good is to be done and what is evil is to be avoided". But a definition such as this is open to a very broad manner of interpretation and can involve intricate etymological debate on the meaning of the word "good". As one writer concluded such a principle seems to be tantamount to saying "one ought 5 to do what one ought to do". However, this is not to demean the importance of the natural law philosophy. The works of John Locke and Tom Paine and their ideas which were based on natural law became the highest positive law in the United States through their incorporation in the Constitution. Similarly, at the Nuremburg trials of Nazi war criminals the doctrine of natural law played a very significant role. The point that must be emphasised is that because of the inherent vagueness of natural law i t is very difficult to deduce a concrete set of goals or purposes that can be referred to in a systematic way. Although the doctrine i s , in essence, teleologically oriented we are presented with a serious problem in trying to crystallize the goals. Considerable problems have also arisen in relation to the doctrine of natural law as a result of a much discussed confusion between law as i t " i s " and 6 law as i t "ought to be". This was briefly mentioned at an earlier stage. Frequently natural law has been regarded as a higher law which invalidates any inconsistent positive law; thus bad law is. denied the status of law at a l l . On the other hand, modern theories tend to view natural law as an 5. G. Goble, The Dilemma of Natural Law, ( l 9 7 l ) 6. D. Hume, Treatise of Human Nature' ed. 1777. Hume questioned the validity of deriving an "ought" from an " i s " premise. - 8 -ideal to which positive law should conform without its legal validity being affected. A.P. d'Entreves is one writer who takes the latter view. He accepts that to contemporary society natural law appears to involve superimposing a moral content on laws and writes, "The theory of natural law is the outcome of a very old conviction, which goes back to the sources of our civilizations the conviction that the purpose of law is not only to make men obedient, but to help them to be virtuous" 7-d'Entreves is concerned to avoid speaking of natural law as a confusion between law and morals. He accepts that the very notion of law implies their close association as does a definition of law as an "ethical minimum". Natural law is a vindication of that minimum but i t is not a denial of a distinction between the two fields. Yet, the dividing line between them is almost indistinguishable for d'Entreves and he reaches the conclusion that, "This point where values and norms coincide, which is the ultimate origin of law and at the same time the beginning of moral life proper, i s , I believe, what men for over two thousand 9 years have indicated by the name natural law." It is not the purpose of this study to undertake a discussion of law as i t "is " and law as i t "ought to be". The material point is that although natural law posits certain goals towards which law should direct itself i t is a very problematic task to ascertain precisely what those goals are with any degree of clarity. It is acknowledged that there are some purposes of paramount importance that can be stated as natural law "rules" but the question is; how do we cope with cases where other considerations arise that must be taken care of? Most rules are not absolute for if they were the system would be highly inflexible and static. It seems reasonable 7. A.P.d'Entreves, Natural Law (London: Hutchinson 1951) 83. 8. ID. at 94, 9. ID. at 122. - 9 -to assume that not a l l goals are of equal value and so there must he some form of ordering of those goals, hut natural law does not furnish us with the tools to tackle this task. There is another criticism that can be levelled at the doctrine of natural law that indicates its inadequacy for our present purpose. Natural law is supposed to possess some kind of "transcendent" validity and yet its doctrines have been used to support many different kinds of rights and regimes. It has been both conservative and revolutionary, equalitarian and e l i t i s t , democratic and dictatorial. For example, Thomas Hobbes, in "Leviathan" used natural law to justify a regime of absolute power.^ John Locke took a more utilitarian view in his "Second Treatise of Civil Government" but seems to give great priority to the protection of property interests.^"'" Many examples could be cited but the point to note is that i t is difficult to extract many consistent principles from such doctrines. Alf Ross has attacked natural law on this basis and states that, "The historical variability of natural law supports the interpretation that metaphysical postulates are merely constructions to buttress emotional attitudes and the fulfillment of certain needs." 12 He sees natural law as a convenient way for people to shift the burden of responsibility for their actions by claiming that, as they are simply obeying the commands of God, they are blameless. In the political arena Ross sees natural law as the ideology used by the dominant group in many societies to clothe itself with an aura of legitimacy. This is an 10. Hobbes, Leviathan (ed. Michael Oakeshott,Oxford,B.Blackwell, 1957)., 11. Locke, Second Treatise of Civil Government (ed.J.W.Goush,Oxford, B.Blackwell, 1948). ~ ~ 12. Alf Ross, On Law and Justice (London: Stevens & Sons 1958) 261. - 10 -extreme viewpoint which may or may not he v a l i d hut, the basis of the argument serves to emphasise once again, the fundamental d i f f i c u l t y of d e r i v i n g many c l e a r rules form the body of the doctrine of natural law. B. FULLER AMD THE TELEOLOGICAL VIEWPOINT. At t h i s point some discussion must be included on the work of Lon F u l l e r . In recent years F u l l e r has been a notable exponent of a n a t u r a l law philosophy and has put forward arguments to counter the p o s i t i v i s t p o s i t i o n . F u l l e r sees law i n t e l e o l o g i c a l terms, that i s , as a purposeful a c t i v i t y . F u l l e r draws a d i s t i n c t i o n between two concepts that he r e f e r s to as the m o r a l i t e 3 of duty and a s p i r a t i o n . He sees the l e g a l system as complex system of r u l e s that are designed to maximise mans' a b i l i t y to be purposeful and c r e a t i v e . The morality of duty r e l a t e s to the things that we are bound to do or r e f r a i n from doing i n order to ensure the conditions necessary f o r a r a t i o n a l human existence. The morality of a s p i r a t i o n , on the other hand, represents the ultimate standard of excellence that men seek to achieve. F u l l e r f eels that i t i s impossible to pinpoint a c l e a r d i v i d i n g l i n e between law and morality. He believes that f o r anything that we c a l l a l e g a l system there are c e r t a i n i n t e r n a l requirements of morality and j u s t i c e that must be f u l f i l l e d . Thus, even the most elementary system must achieve a minimum l e v e l . o f morality and j u s t i c e . These requirements constitute what F u l l e r c a l l s an " i n t e r n a l morality" of law ^ and amount to eight prerequisites f o r a l e g a l system. They are as f o l l o w s : 13. Lon F u l l e r , The Morality of Law (New Haven: Yale U n i v e r s i t y Press 1964) (Hereinaf ter F u l l e r (1964).) 14. ID a t 33 1. The need to generalise. 2. The need to pu b l i c i s e the rules thus formulated. 3. There must be no abuse of r e t r o a c t i v e l e g i s l a t i o n . 4. The rules must he coherent and understandable. 5. Contradictory r u l e s should not be enacted. 6. The ru l e s should not require conduct beyond the power of the aff e c t e d p a r t i e s . 7. There should not he frequent changes and a l t e r a t i o n of the r u l e s . 8 . There should not be incongruence between the r u l e s as announced and the rules as administered. A f a i l u r e to comply with one of these does not merely mean that the system i s a bad system of law; i t r e s u l t s i n something that cannot p r o p e r l y be c a l l e d a l e g a l system at a l l . This i n t e r n a l morality i s conceived of by F u l l e r as being l a r g e l y a morality of a s p i r a t i o n and yet, i n many respects, these requirements appear to be procedural i n nature and n e u t r a l as to content. In South A f r i c a we have an example of a regime that f u l f i l s a l l of F u l l e r ' s e i g h t requirements and yet the laws are inherently e v i l ones. These c r i t e r i a are undoubtedly very important goals i n a l e g a l system but they are rather d i f f e r e n t i n nature from such concepts as freedom and e q u a l i t y and other values important to s o c i e t y . This i s an important p r a c t i c a l d i s t i n c t i o n that we w i l l return to i n due course."'"^ 15. The d i s t i n c t i o n i s made between (a) and (b) - type goals : see, S. C. Coval and J . C. Smith, The Causal Theory of Law (1977) 36(1) Cambridge Law Journal 110. (Hereinafter Coval and Smith, The Causal Theory of Law) - 12 -P u l l e r equates the p r i n c i p l e s he has described not with some "higher" law, but with the "natural laws of carpentry" that form the basis of the system. 1^ Thus, h i s i n t e r n a l morality purports to be a procedural version of natural law. The external morality of law i s found i n the s p e c i f i c r u l e s of a system which F u l l e r sees as a p r a c t i c a l r e f l e c t i o n of the morality of a s p i r a t i o n . ".... lav/ i s the enterprise of subjecting human conduct to the governance of r u l e s . Unlike most modern theories of law, this view treats law as an a c t i v i t y and regards a l e g a l system as the product of a sustained, purposive e f f o r t . " 17 In t h i s passage F u l l e r i s d i s t i n g u i s h i n g h i s p o s i t i o n from the a n a l y t i c a l approach o f the p o s i t i v i s t s . But although he regards law i n terms of the aims i t i s direc t e d towards achieving he goes l i t t l e further i n elaborating on that point. I t i s c l e a r that he understands the nature of the c o n f l i c t s that a r i s e but he can o f f e r no concrete method of re s o l v i n g such problems. Much s t r e s s i s l a i d upon the importance of g i v i n g due regard to teleology but i n the sense that i t i s a yardstick by which to measure the l e g a l i t y i f a rule and not a part of the rule i t s e l f . This seems simply to be another way of s t a t i n g the t r a d i t i o n a l natural law proposition that p o s i t i v e laws are to be judged by some abstract standard of a higher law. F u l l e r c l e a r l y perceives the r e a l i t y of the s i t u a t i o n i n seeing law as a purposeful p u r s u i t and he appreciates the causal r e l a t i o n between a goal and the means of a t t a i n i n g i t . But, i n detaching the goal of a rule from the corpus of that r u l e he leaves us with the usual problem associated with n a t u r a l law theories; that of ascertaining the p r i n c i p l e s i n any c l e a r form. He says, 16. F u l l e r (1964) a t 96. 17. ID a t 106. - 13 -"It i s , then, precisely because law is a purposeful enterprise that i t displays structural constancies which the legal theorist can discover and treat as uniformities in the factually given". 18 However, just what iiiese "structural constancies" are is not described. In fact, fuller then proceeds to talk in terms of "weighing and balancing" 19 the various claims running through the legal system. In terms of exactly what those values and claims are, he has lit t l e to say. He 20 refutes the suggestion that "survival" is our base value and believes that the chief objective of human aspiration is to maintain communication 'with our fellows in order to reach understandings and agreement. As a statement of his central idea of substantive natural law Fuller says that our aim should be to, "Open up, maintain and preserve the integrity of the channels of communication by which men convey to one another what they perceive, feel and desire." 21 Obviously, this is desirable but the question remains of how the law, in fact, manages to do this or attempts to do i t . On this point Fuller offers no guidance. Fuller seems to feel that i t is impossible to give his teleology any structural basis and makes an error in assuming that in order to do this i t is necessary to assign a uniform particular purpose to each rule. This is not 1he case. If the goals of a law are seen as a vital part of that law and the goals are then ordered in a hierarchy, i t will be seen that the picture is more complex and rich than Fuller would seem to indicate. 18. ID. at 151. 19. ID. at 179. 20. H.L.A. Hart, The Concept of Law (Hereinafter Hart (1961).) 21. Fuller (1964) 186. (Oxford: Clarendon Press 1961) 188. - 14 -Fuller sees the problems that will arise when justice demands that a dispensation is made from strict compliance with the rules but has no adequate explanation of how the law can deal with this situation. He states that there is a particular kind of "justice" that allows for exceptions when the rules work hardship in special "hard cases" and thus 22 the law will be "bent" in the interests of fairness. This seems a very arbitrary manner in which to deal with such an important aspect of law and, again, emphasises the inadequacy of natural law in relation to many matters fundamental to any cohesive theory of law. C. POSITIVISM At the other end of the spectrum we have positivism which adopts a completely different emphasis to doctrine of natural law. The positivist school of jurists are concerned with the law as i t " i s " and seek to avoid the confusion caused by imposing the moral order on the legal one. In this approach the role of goals in law is a very peripheral one as positivists tend to regard considerations of the purposes of laws as inclining towards the inference that law has a necessary moral content. Thus, in the positivist model we are not confronted by the problem arising in natural law theories of trying to extract firm principles upon which to act, for only the means are important, the end is a separate matter. It is important to note that this does not mean that a positivist is indifferent to the content of law and looks on evil and good laws alike -as manifested social authority. What i t does mean however, is that the positivist, like the natural lawyer, does not view rule and purpose as being inextricably linked and i t is this fact that contributes to the unsatisfactoriness of both viewpoints. 22. Fuller, The Anatomy of Law, (New York: Britannica Perspective Series 1968) 57. - 15 -We have seen that natural law is unable to be of much help in resolving legal disputes at a practical level but, to date, the purely analytical approach is not much more constructive. The rules of a system, as considered by the positivists, can furnish guidance in only a limited number of cases. D. HART'S POSITIVIST MODEL OF LAW H.L.A. Hart recognises this fact in his classic exposition of the positivist model of law. He talks of a rule in terms of the core and penumbra. Most rules will have a limited core area of meaning, that i s , an area where the meaning and ambit of the rule's operation are clear. Hart realises that in most cases there are several conflicting rules that could equally apply and a given case can f a l l in the penumbra of both. Clearly, as both cannot be applied, the judge is faced with a choice and must place the case within the core area of one rule and exclude i t from the sphere of the other. Initially this is a useful model. However, there are some serious problems that i t fails to resolve. Fuller highlights one of these in that he points out that Hart's model is too simplistic. It is very difficult to ascribe "core" meaning to individual words. When we look at statutes we interpret them in the light of the overall sense of the rule embodied therein and not on an analysis of the meaning of each word. It is almost impossible to determine where the core ends and the penumbra begins and simply examining the rule itself is not going to clarify this. Surely involvement in debates over definitions of words and then on what comes within the decided definition is quite unproductive for our purposes. It is also unnecessary. Both lawyers and, for example, the medical profession are unable, as yet, to formulate a satisfactory definition of 23- Hart, (1961). - 16 -death and, similarly, of the stage at which life can be said to exist, so i t seems that discussion in this field is not particularly illuminating. Another point to observe about Hart's core/penumbra concept is this. How does the judge decide which rule applies and which does not in any particular instance? It seems that this must be, in the main, a matter of the exercise of judicial discretion. According to Hart's scheme i t is a rule of adjudication that directs the judge in reaching his decision. These rules of adjudication are secondary rules that identify the people 24 who adjudicate and set out the procedure to be followed, "Again these rules, like the other secondary rules, define a group of important legal concepts: in this case the concepts of a judge or court, jurisdiction and judgement." 25 Certainly, the rules of adjudication may do a l l of this, but they s t i l l do not provide a meaningful criteria for accounting for the outcome of a case. This is because the conflict situations that generally arise are goal-conflicts and Hart's construction of primary and secondary rules and the rules of recognition, adjudication and change does not take account of this factor, It seems illogical that judges should be attempting to decide cases according to the rules but, at the.same time, ignoring the purposes or goals of those rules. To follow Hart's example, we can say that in the case of a game the rules of that game are directed towards fu l f i l l i n g a purpose and i t would be ridiculous to ignore this fact in interpreting those rules. If the rules are infringed or a dispute arises then the referee will decide in such a way that preserves the idea inherent in the rules of the way that we intend that 24. Hart, (1961) at 94. The system that Hart describes of primary rules which may be termed "duty imposing" and secondary rules which confer powers on people in order that they may be able to regulate their affairs. 25. ID. at 94. - 17 -game to be played. For instance, in any physical game there are usually rules against "fouling" one's opponents because, presumably, the purpose of the game is to win without violence and not merely to win at any cost. However, Hart does set out a few precepts that he regards as fundamental aims of human beings. These he terms "the minimum content of natural law". Hart sees the basic aim as that of survival, "even at the cost of hideous misery", and the five truisms that he puts forward are the basic necessities 27 for survival. They may be summarized as follows:-(a) The first is the manifest fact of human vulnerability. Clearly, we need rules restricting- the use of violence or we would find ourselves living in a situation akin to the "nastiness and brutishness" of a Hobbesian state of nature. (b) The approximate equality of human beings necessitates that we have a system which will promote mutual forbearances and balancing of interests in order that no individual can predominate and coerce the others. (c) The third principle of limited altruism is linked to this. People are by nature egocentric and, therefore, we must have a system of forbearances to maintain this balance. (d) We are faced by the fact -that our resources are limited and so we must act to preserve what we have - in conjunction with -the necessity for some system of private property. Hart also talks of "dynamic" rules by which he means the kind of rules that enable men to create and discharge obligations and that try to ensure a minimum form of confidence in the future conduct of others. (e) The final category concerns what Hart calls limited understanding and strength of will. 26. ID. at 189 27. ID. at 190 - 18 -In any system there will be people who attempt to take advantage of the benefits of that system whilst avoiding the obligations and sanctions must be provided to deal with such persons. Hart calls these truisms the "core of good sense" in the doctrine of natural law and, indeed, this is probably correct but the question remains unanswered as to how these truisms feature in the judgement on a case. Positivism, in disassociating the goal of a law from the rule itself and natural law, in i t s basic vagueness, fails to explain the mystical input that causes a judge to decide one way or another. However, there are other viewpoints to be evaluated and these will now be examined in terms of their relevance to this problem. 2. THE SOCIOLOGICAL JURISPRUDENTS What has been called the "law, science and policy" approach to law very largely concerns the work of Myres M. McDougal and Harold D. Lasswell in recent years. But, before embarking on a discussion of their writings some consideration will be given to their progenitors in the field of sociological jurisprudence - most notably Roscoe Pound and Julius Stone. A. POUND AND STONE For the sociological jurists the real source of law is not to be found in statutes or reported cases but in the activities of society its e l f . In making a decision the judge should be integrating the formal rules of the legal system with the reality of what is going on in society; that i s , the "living law". Legal rules are seen as the embodiment of social fact although i t is possible for law to establish goals that represent an - 19 -attempt to bring about a change i n the s o c i a l climate; i n the United 28 Kingdom the Race Relations Acts 1965 and 1968 would be an example of l e g i s l a t i o n of th i s kind. Roscoe Pound saw law as a form of s o c i a l c o n t r o l that should be u t i l i s e d i n society to s a t i s f y j u s t claims and desires and should r e f l e c t trends i n the s o c i a l sciences. Pound advocated " s o c i a l engineering" and placed much emphasis on f a c t u a l determinations and the creative r o l e of the j u d i c i a r y . In his view, any approach to law should be f u n c t i o n a l and purpose-oriented i n modern soc i e t y . Law i s concerned with s a t i s f y i n g claims that e x i s t i n society, independently of the law, and that are "pressing f o r recognition and s e c u r i t y " ; i t gives e f f e c t to some of these claims, within l i m i t s , and Pound puts forward a l i s t of claims that he believes abound i n a modern democratic s o c i e t y . However, a problem with this kind of approach i s that of determining exactly what are the claims that e x i s t i n any given society at any p a r t i c u l a r time. With modem methods of advertising and propaganda through a l l forms o f media i t may be very d i f f i c u l t to assess a genuine i n t e r e s t as d i s t i n c t from one that has been, as i t were, manufactured or imposed from without? There i s a danger of confusing what people a c t u a l l y do want with what any person or persons i n power or authority believe that they ought to want. And, i n the extreme, such a p o l i c y could be analagous to the concept of "fo r c i n g " people to be free as was described by Rousseau. Merely by examining the cases that come into court we do not have a r e l i a b l e method of ascertaining i n t e r e s t s , as only the most complex cases are l i t i g a t e d and the f i n a n c i a l costs of l i t i g a t i o n may deter many people from going to 28. Race Relations Act 1965 C .73. Race Relations Act 1968 C.71. - 20 -court. There i s no way of proving that Pounds interests do e x i s t -they are merely postulated and also we are not t o l d how such i n t e r e s t s may he evaluated and ordered i n terms of t h e i r p r i o r i t y . The general idea i s that law should be viewed i n i t s wider s o c i a l context and should e f f e c t a balancing of the competing i n t e r e s t s within that s o c i e t y . 29 Broadly, Pound divides h i s c l a s s i f i c a t i o n of i n t e r e s t s into three groups, J i n d i v i d u a l i n t e r e s t s , which are claims or demands looked at from the point of view of the i n d i v i d u a l ; public i n t e r e s t s , which are the claims asserted by i n d i v i d u a l s involved i n or regarded from the perspective of p o l i t i c a l l i f e . F i n a l l y , there are s o c i a l i n t e r e s t s , which are claims some of T/hich may be found i n the previous groups looked at i n terms of s o c i a l l i f e and from the point of view of the s o c i a l u n i t as a whole. These groupings break down into various sub-sets i n this way: Individual Interests A. Personality B. Domestic Relations C. I n t e r e s t of Substance Public Interests A. Interests of the state as a j u r i s t i c person. B. Interests of the state as a guardian of s o c i a l i n t e r e s t s . S o c i a l Interests A. S o c i a l i n t e r e s t i n the general s e c u r i t y . B. S o c i a l i n t e r e s t i n the s e c u r i t y of s o c i a l i n s t i t u t i o n s . C. S o c i a l i n t e r e s t i n general morals. D. S o c i a l i n t e r e s t i n the conservation of s o c i a l resources. E. Social i n t e r e s t i n general progress. F. S o c i a l i n t e r e s t i n the i n d i v i d u a l l i f e . 29. YCL. I T T Pound, Jurisprudence, (St.Paul: West Pub.1959) 25. - 21 -Pound goes into great d e t a i l i n amplifying these c l a s s i f i c a t i o n s . B a s i c a l l y , his aim i s to "at a l l times s a t i s f y as much of the total 30 amount as we can". The l e g a l system should recognise the above in t e r e s t s and should define the l i m i t s within which they s h a l l be recognised and a u t h o r i t a t i v e l y given e f f e c t . A l s o , i t should attempt to secure the i n t e r e s t s within the defined l i m i t s . Pound maintains that these i n t e r e s t s precede the l e g a l order and are not created by_ the law. C o n f l i c t s are to be resolved by a balancing or weighing of i n t e r e s t s and Pound i n s i s t s that the i n t e r e s t s should be weighed on the same plane, that i s , i f one i s expressed as an i n d i v i d u a l i n t e r e s t then so must the other i n t e r e s t involved. S i m i l a r l y , with s o c i a l i n t e r e s t s - otherwise there i s a r i s k of pre-judging the issue. Generally, Pound f e e l s that i t i s preferable to t r a n s f e r the i n t e r e s t s to the s o c i a l plane i n order to compare them i n a more generalised form and i n d i v i d u a l i n t e r e s t s should be subsumed under s o c i a l ones to weigh them as such. The r o l e played by r u l e s i n Pound's scheme i s l i m i t e d . They are seen as precepts attaching d e f i n i t e consequences to d e f i n i t e f a c t u a l s i t u a t i o n s and are supported by a number of other types of l e g a l i n s t i t u t i o n s such as p r i n c i p l e s , conceptions, doctrines and standards that give the l e g a l system i t s richness and complexity. The problem with Pound's plan i s that i t seems to lack a c e r t a i n f l e x i b i l i t y as the i n t e r e s t s are, to some degree, predetermined by Pound and this f a i l s to take account of the f a c t that laws should be dynamic. A l s o , Pound gives l i t t l e i n d i c a t i o n of how h i s i n t e r e s t should be evaluated. In most 30. ID. at 16. - 22 -s o c i e t i e s there are p a r t i c u l a r goals, as we noted before, that take precedence (in most cases), over other goals i n society and i f a c o n f l i c t a r i s e s then e f f e c t w i l l normally be given to the rule (or i n t e r e s t ) that i s most l i k e l y to achieve that. Of course, there may be exceptions but these can be dealt with as part of the goal of the r u l e . Thus, we can achieve f l e x i b i l i t y but with c e r t a i n t y , unlike Pound's system which may not guarantee e i t h e r . Another very important question that a r i s e s i n connection with any attempt to define l i s t s of i n t e r e s t s i s t h i s : v/e must decide whether i t i s preferable to draw up a l i s t of i n t e r e s t s that are thought to be pressing f o r r e c o g n i t i o n i n s o c i e t y or whether a more accurate method i s to l i s t the i n t e r e s t s a c t u a l l y represented and acknowledge by the law. C l e a r l y , i t i s possible to argue that e i t h e r method w i l l prove to be misleading and incomplete and, once again, i t should be noted that i t would be u n r e a l i s t i c to claim that any catalogue i s exhaustive. However, i t seems that the f i r s t method i s more open to subjective i n t e r p r e t a t i o n than the second. Also, i f the object of drawing up any such c l a s s i f i c a t i o n i s to t r y and obtain some idea of the cause/effect r e l a t i o n s h i p between various goals of the system i n order to explain j u d i c i a l decisions i n the sense of the input that a judge receives, then i t i s necessary to have a catalogue of the goals a c t u a l l y postulated i n the lav/. Simply having a l i s t of i n t e r e s t s i s not of much use alone. There i s no point i n having a purely a b s t r a c t l i s t of i n t e r e s t s or goals because i t i s only when such goals come in t o question i n p r a c t i c a l disputes that we need to consider them. I t i s the judge who has to evaluate competing i n t e r e s t s or goals and what we want to know i s i f there are any c r i t e r i a that should guide h i s d e c i s i o n . - 23 -J u l i u s Stone i s a d i s c i p l e of Pound but one who has developed h i s own brand of s o c i o l o g i c a l jurisprudence and who has c r i t i c i s e d Pound's theories. Stone f e e l s that Pound r e l i e d on the use of case law and statutory materials rather than on s o c i a l investigations s t r i c t u sensu. He also appreciates the problem of deciding whether we are i n t e r p r e t i n g a p r e - e x i s t i n g harmony of i n t e r e s t s or are attempting to produce a desired harmony of i n t e r e s t s . In general, Stone f e e l s that de facto claims a r i s e and are made independently of the e x i s t i n g content of the l e g a l order although they are important as to the subject matter on which the law must operate. A l l claims which bear on a p a r t i c u l a r issue must be taken into account i n determining what p o s i t i o n the law should take. Stone sees Pound's category of public i n t e r e s t s as being redundant i n that i t r e f l e c t s the human i n t e r e s t s ( i n d i v i d u a l or s o c i a l ) that are r e a l l y involved. C e r t a i n l y , t h i s i s a v a l i d c r i t i c i s m . I f , when i t comes to balancing competing claims, those claims have to be reduced to the same category and that i s usually the category of s o c i a l i n t e r e s t s , then the d i s t i n c t i o n made by Pound i s of small s i g n i f i c a n c e . Stone comments, "The.truth i s that a l l i n t e r e s t s , i n d i v i d u a l and s o c i a l , are so mutually entangled and interlocked i n genesis, operation and consequences, that any s i n g l e , exclusive basis of c l a s s i f i c a t i o n would obscure and even f r u s t r a t e many other equally i l l u m i n a t i n g bases o f c l a s s i f i c a t i o n . " In f a c t , as Stone r e a l i s e s , to d i s t i n g u i s h between i n d i v i d u a l and s o c i a l goals too i s somewhat a r b i t r a r y . Society as a whole has a v i t a l i n t e r e s t i n protecting the r i g h t of the i n d i v i d u a l to such things as freedom of speech and conversely, i t could be s a i d that, i n c e r t a i n circumstances, the i n d i v i d u a l as part of the society i n which he l i v e s has an i n t e r e s t i n the general security such that freedom of speech, ( i n the sense of matters 31. Stone, S o c i a l Dimensions of Law and J u s t i c e . (Stanford: W . w f . (Jaunt 1966) 176. - 24 -of state defence, o f f i c i a l "secrets") might have to he c u r t a i l e d . Stone makes some i n t e r e s t i n g remarks about the nature of pu b l i c p o l i c y . He believes that when pu b l i c p o l i c y i s seen as a ground f o r l e g a l d ecision i t should be seen as being as much a l e g a l ground as the ru l e i t purports to overthrow. In th i s area of pu b l i c p o l i c y i t i s not the j u d i c i a l task to weigh a po l i c y against an e x i s t i n g rule of law, but one p o l i c y against another. This i s quite true but could f i t as w e l l into a goal matrix as into the "balancing of i n t e r e s t s " scheme. Stone f e e l s that when a new case a r i s e s where s e t t l e d rules do not apply, then l e g a l r i g h t s or rules are not involved at a l l : -"What i s rather involved, and on both sides, i s a c o n f l i c t of de facto i n t e r e s t s , which the court i s required to adjust by creative d e c i s i o n . " 32 But i t i s not usually the case that there are no l e g a l r u l e s i n point; what generally occurs i s that there are several rules which may lead to quite d i f f e r e n t r e s u l t s . In such circumstances i t i s obvious that the c o n f l i c t i n g i n t e r e s t s have to be adjusted but, again, on the question of how this i s to be done we are given l i t t l e guidance. So, Stone's l i s t of i n t e r e s t s d i f f e r s from Pound's and i s , b r i e f l y , 33 as f o l l o w s : -Individual Interests A. Interests of Personality B. Interests of Substance S o c i a l Interests The l i s t i s very d e t a i l e d and comprehensive and w i l l be considered more f u l l y at a l a t e r stage. However, though t h i s c l a s s i f i c a t i o n i s very 32. ID a t 18? 33. ID Chapter IV. - 25 -i l l u m i n a t i n g and of much i n t e r e s t , i t must be pointed out that i t was compounded from a s o c i o l o g i c a l perspective rather than a l e g a l one and thus has a d i f f e r e n t emphasis. This difference i s brought out very-c l e a r l y i n the following passage: "Closely r e l a t e d to the r i s e of administrative a p p l i c a t i o n of law, and to the increasing awareness of the non-mechanical aspect of j u d i c i a l a c t i v i t y , i s the r i s e of the l e g a l standard, f o r example of "reasonableness", " f a i r n e s s " , or "adequacy". Standards are devices as t y p i c a l of the recent " s o c i a l i z a t i o n " of law as r u l e s are of the s t r i c t law of an emergent p o l i t i c a l s o c i e t y . While any l e g a l system makes use of both, undeveloped systems of law tended to meet new s i t u a t i o n s by new r u l e s , whereas today we are inc r e a s i n g l y seeking to meet them by applying standards. Behind t h i s changed modern approach l i e s the increased d i f f i c u l t y of framing exhaustive bodies of norms applicable (as a rule must i n i t s nature be) to c a r e f u l l y enumerated sets of f a c t s . The standard i s e s s e n t i a l l y an individualisjung device, a mediator between rule and absence of r u l e . I t i s a means whereby the search may be free of d i c t a t i o n , and the f a c t s of p a r t i c u l a r cases given weight, and yet not allowed to l o r d i t over l a t e r s i t u a t i o n s . " 34 Stone obviously sees l e g a l rules i n a s i m i l a r l i g h t to the p o s i t i v i s t s , that i s , without reference to any kind of teleology and, consequently, sees rules as only being applicable to such " c a r e f u l l y enumerated sets of f a c t s " . Thus he uses the standard as the device whereby tie purposes of law i n i t s expanded s o c i a l context may be given e f f e c t without undue r e s t r i c t i o n i n the form of precedents. The i n t e r e s t s or claims being asserted i n society are viewed as being completely separate and d i s t i n c t from the l e g a l r u l e s . B. LASSWELL AND McDOUGALt A THEORY ABOUT LAW At t h i s stage the work of Lasswell and McDougal must be introduced into the discussion. 34. ID. a t 348. - 26 -Their work can be regarded as an extension o f the "grand theory" of Pound but they place the emphasis on the process of decision-making. They claim that they are postulating a theory about law rather than a theory of law. Law, they argue i s being studied too often as a body of doctrine or r u l e s , divorced from concepts of power and the s o c i a l processes. "In few of the h i s t o r i c emphases have the standpoint and purposes of the s c h o l a r l y observer been c l e a r l y distinguished from those of the more active p a r t i c i p a n t s i n the s o c i a l processes being subjected to i n q u i r y : much too often, instead of creating theories about law which might f a c i l i t a t e comparisons through time and across community boundaries, scholars have been content to frame t h e i r own studies i n terms of t e c h n i c a l theories of law, mere shadowy and ambiguous fragments of the data under observation." 35 To conceive of law i n n a t u r a l law terms or as a body of r u l e s does not admit of empirical inquiry and tends to ignore the actual operations of l e g a l process. There i s l i t t l e c l e a r focus on the process of a u t h o r i t a t i v e decision-making and the many v a r i a b l e s that exert an influence on that process. . They see l i t t l e p o s i t i v e e f f o r t made to r e l a t e decisions to basic community values or, when discrepancies are noted, to c l a r i f y values and adopt a creative a t t i t u d e i n the invention and adaptation of new means. P o l i c y i s to be value-oriented since i t i s only meaningful when seen as a deliberate search f o r the maximisation of valued goals. Lasswell and McDougal believe that an attempt should be made to c l a r i f y basic community p o l i c i e s from sources beyond the rules and that e x i s t i n g r u l e s should be given a contextual i n t e r p r e t a t i o n . To look at law as a system of rules alone, to them, gives a s t e r i l e and s t a t i c idea of the system. They view the ideas of the American R e a l i s t s 35. Lasswell and McDougal} C r i t e r i a f o r a Theory About Law (1971) 44 Southern C a l i f o r n i a Law Review 364' - 27 -as being the most f r u i t f u l approach to date i n that they looked beyond systems of r u l e s alone to the f a c t o r s that a c t u a l l y influence d e c i s i o n . But the R e a l i s t s ' theory too proves inadequate as they f a i l e d to develop a comprehensive set of value categories or systematic set o f procedures f o r goal c l a r i f i c a t i o n . The i n i t i a l impression given by Lasswell and-McDougal, therefore, i s that they are going to produce a f a i r l y d e t a i l e d l i s t of these "values" as the c r i t e r i a f o r appraising d e c i s i o n s . However, as we s h a l l see, t h i s i s not the case. They regard t h e i r jurisprudence as^a "man-centred, u n i v e r s a l i s t and e q u a l i t a r i a n perspective", with human dign i t y postulated as the ultimate goal to be att a i n e d . The values r e f e r r e d to by Lasswell and McDougal seem to be analogous to the i n t e r e s t s set out by Pound. I t i s these values that are an es s e n t i a l part of the s o c i a l process and that prompt people to res o r t to the decision-making procedures. They recommend a c l a s s i f i c a t i o n of eight v a l u e - i n s t i t u t i o n categories drawn from contemporary s o c i a l science. These are:-Power: government, law, p o l i t i c s . Wealth: production, d i s t r i b u t i o n , consumption. Respect: s o c i a l c l a s s and caste. Well-being: health, safety, comfort arrangements. A f f e c t i o n : family, f r i e n d s h i p c i r c l e s , l o y a l t y . S k i l l : a r t i s t i c , v ocational, professional t r a i n i n g and a c t i v i t y . Rectitude: churches and r e l a t e d a r t i c u l a t o r s and a p p l i e r s of standards of responsible conduct. Enlighten ment: mass-media, research. The s o c i a l process i s characterised as human beings i n t e r a c t i n g with one another and with resources. This flow of i n t e r a c t i o n i s described i n two sets of categories, as seen above, values and i n s t i t u t i o n s . 36. ID. at 388, 19 F l o r i d a Law Review at 486. - 28 -Under this view law i s seen on a global scale - a "larger community context", and one more important feature of this community i s a process of e f f e c t i v e power that has a very considerable e f f e c t on decisions. In a d d i t i o n , within t h i s process of e f f e c t i v e power there i s a continuous flow of decisions that r e f l e c t the value-processes o f s o c i e t y . The emphasis i s very markedly on i n t e r n a t i o n a l law, however, and i n this context the question i s posed of what basic goals the c i t i z e n of the larger community (and of his own smaller community) would be w i l l i n g to propose as the fundamental bases of public order. The answer that Lasswell and McDougal suggest i s that the greatest trans-national co-operation i s found i n the aim of promoting human dig n i t y and that the values posited should contribute towards t h i s major goal. I t i s suggested that these goal-values admit of great f l e x i b i l i t y as between d i f f e r e n t cultures and national communities with d i f f e r i n g i n s t i t u t i o n a l p r a c t i c e s , but t h i s may be as a r e s u l t of t h e i r inherent vagueness rather than t h e i r comprehensiveness. The most s i g n i f i c a n t thing to note about the theory of Lasswell and McDougal i s that i t does not see law as having an independent existence or i d e n t i t y : i t i s e s s e n t i a l l y seen as part of the power process i n society. I t i s , therefore, i n e v i t a b l y linked to p o l i t i c s and power-broking and involves the lawyer i n i n v e s t i g a t i n g what Hughes c a l l e d the "explanation" f o r decisions rather than the j u s t i f i c a t i o n . I f what we are concerned to discover i s how judges operate within the framework of p o l i t i c s and manifested authority then law, i n the sense of rules and precedents, i s of minimal importance. Indeed, Lasswell and McDougal argue that t h i s i s p r e c i s e l y the case. How, then, i n p r a c t i c a l terms, does t h e i r analysis of the system function? - 29 -We have already seen that Lasswell and McDougal regard t h e i r eight "desired events" as the basic categories of values and they ask whether, for each of these c l a s s i f i c a t i o n s the l e g a l .process i s achieving a maximum sharing of the p a r t i c u l a r value. But this puts the nature of the i n q u i r y into h i g h l y generalised terms that may be adequate f o r the purposes of p o l i t i c a l science but are inappropriate f o r describing more concrete l e g a l concepts. Furthermore, although Lasswell and McDougal purport to be concerned with values, t h e i r c a t e g o r i s a t i o n appears, strangely, to be value f r e e . The eight values are not given any k i n d of ordering and no consideration appears to have been given to the p o s s i b i l i t y , indeed, i n e v i t a b i l i t y , of a c o n f l i c t a r i s i n g between d i f f e r e n t value categories. Thus, the judge has p r a c t i c a l l y no concrete guidance as to how to determine disputes i n accordance with these values. Presumably, he i s to make the d e c i s i o n that responds to the demands made by "authority" i n the p a r t i c u l a r s i t u a t i o n a t hand. But, i f t h i s i s so, there seems to be l i t t l e point i n having any categorisation of values at a l l i f a l l that dispute settlement eventually b o i l s down to i s something ' that amounts to j u d i c i a l hunch. In this context too, j u d i c i a l hunch would appear to be what the judge i n t u i t s i s p o l i t i c a l l y a proper d e c i s i o n rather than what i s l e g a l l y c o r r e c t or j u s t . In f a c t , i t i s questionable whether the theory of Lasswell and McDougal r e a l l y gives us a system of values at a l l . Any attempt to discover a fundamental set of postulates v a l i d f o r a l l communities must s u f f e r from the same deficiences as the natural law theories that we noted e a r l i e r . I t could be argued that the y a r d s t i c k by which to measure the e f f e c t i v e n e s s of the eight values i s the primary goal of human d i g n i t y , but t h i s i s open - 30-to a myriad of diverse interpretations and i s f a r too indeterminate a standard to "be of much p r a c t i c a l use. Conceivably, i t could be used to j u s t i f y apartheid, genocide, Nazism and any numiber of e v i l (and, of course, benevolent) regimes or acts. Lasswell and McDougal claim that t h e i r system provides f o r law to be dynamic and s e n s i t i v e to the changing needs and cfemands i n soci e t y , whereas a system which gives prevalence to r u l e s above a l l else i s not. However, there i s a subtle difference between the needs of society as a whole and the claims expressed by those who have the power i n a s o c i e t y . This dichotomy is a very r e a l one and places the judge i n a dilemma that Lasswell and McDougal do not seem to recognise. This point may be i l l u s t r a t e d by taking the example of the U.S.S.R. In that state there i s a d e t a i l e d C o n s t i t u t i o n that t h e o r e t i c a l l y protects a l l forms of c i v i l l i b e r t i e s and r i g h t s . In r e a l i t y , however, judgements are made a r b i t r a r i l y , according to the dictates of a r u l i n g e l i t e rather than according to the law. No doubt, most judges would argue that they are acting to further an awesome catalogue of "values" i n Sovietysociety which may we l l include some or a l l of the eight v a l u e - i n s t i t u t i o n s of Lasswell and McDougal, but i n r e a l i t y , the judge i s merely a facet of the power-broking that goes on i n society. A l l this i s consonant with an analysis of p o l i t i c a l processes but these are not synonymous with l e g a l ones. C. REISMAN Michael Reisman has made an i n t e r e s t i n g statement of th i s kind of standpoint. Reisman is a follower of the Lasswell/McDougal approach - 31 -to law. Reisman denies that a necessary d i s t i n c t i o n e x i s t s between law and p o l i t i c s . He comments, "I do not f i n d t h i s d i s t i n c t i o n r e a l i s t i c , cogent or u s e f u l . The contemporary lawyer, as I see him, i s a s p e c i a l i s t i n advising, making or appraising s o c i a l choices or decisions. He views both the regular flow of decisions or choices as w e l l as the e n t i r e environment that he c a l l s " l e g a l " as a complex of p o l i c y choices, sustained by e f f e c t i v e power i n a community." 38 Thus, he f e e l s that a f a i l u r e to see the a c t u a l i t y of the r e l a t i o n s h i p between the two means that i t i s impossible to obtain a true perspective on what i s a c t u a l l y happening with l e g a l decisions. As an example he takes the case of the United Kingdom and agreements that i t has made with f o r e i g n companies r e l a t i n g to North Sea gas and o i l development. He says that i t i s impossible to assess possible B r i t i s h conduct without taking a broader view of things than that afforded by the law or courts. This i s , of course, true i n t h i s case. I t i s i n t h i s area of i n t e r n a t i o n a l a f f a i r s that the theory i s most e f f e c t i v e . In t h i s f i e l d the i n t e r - p l a y of many p o l i t i c a l economic and s o c i a l - as w e l l as l e g a l forces i s very important and cannot r e a l i s t i c a l l y be ignored. On the other hand, i t i s very much more d i f f i c u l t to apply t h i s theory i n the area of domestic l e g i s l a t i o n . A w i l l or t r u s t i s not open to i n t e r p r e t a t i o n from the aspect of power bases and p o l i t i c s as i s an i n t e r n a t i o n a l agreement. I f law i s , as Reisman stat e s , "....a process of making decisions i n conformity with the expectations of appropriateness of those who are 39 p o l i t i c a l l y relevant..." then large parts of ordinary, domestic law are 37. Reisman, A Theory About Law From the P o l i c y Perspective, (1974/75) Law and P o l i c y : Osgoode H a l l Law School Annual Lecture S e r i e s . 38. ID. at 7.5.. 39. ID. at 81. - 32 -v i r t u a l l y i n e x p l i c a b l e , at l e a s t i n t h i s theory's elevated terms. Most of the subject matter of the law i s of a f a i r l y mundane, routine nature i n which power and p o l i t i c s play l i t t l e or no part. Indeed, i n many areas o f law those who are " p o l i t i c a l l y relevant" do not have any great concern in decisions and so a judge could gain small guidance from such sources. Also, Reisman appears to have a very c y n i c a l conception of "lawfulness" i t s e l f . He acknowledges that not every exercise of power can he lawful but says that lawful a c t s , i n order to be such, must e x h i b i t a minimum degree of effectiveness and that, i n time, e f f e c t i v e acts can a t t a i n the status of l e g a l i t y . This has the appearance of saying that "might i s r i g h t " which i s a very extreme notion of law. Under the Lasswell/McDougal c l a s s i f i c a t i o n law, government and p o l i t i c s are placed together under the general heading of power. Inev i t a b l y , then, law must be regarded as merely another aspect of government rather than as an independent e n t i t y . By g i v i n g deference to p o l i t i c a l process i n t h i s way some very valuable advantages of law are surrendered. For one thing i t would be very d i f f i c u l t to maintain the u n i v e r s a l i t y of law i f each s i t u a t i o n i s to be determined i n accordance with predominantly p o l i t i c a l considerations. And, i f , as Reisman suggests, power can " l e g i t i m i s e " i t s e l f then the Rule o f Law would be redundant and the general population could have l i t t l e confidence i n the law as a source of j u s t i c e or c l a r i t y . The very vagueness of t h i s kind of system means that there would be very great uncertainty and u n p r e d i c t a b i l i t y i n the law and any e x i s t e n t values could be manipulated and mutated without much d i f f i c u l t y . - 33 -There appears to he a c e r t a i n c o n tradiction i n Reisman's approach. He deprecates the idea of discovering the "man with the guns" that i s , the source of e f f e c t i v e power and, instead, advocates a system whereby each person undertakes a personal goal c l a r i f i c a t i o n and p a r t i c i p a t i o n i n the processes of authority i n a community as a means of achieving those goals. This system, he says, "... demands that a l l o f the i n s t i t u t i o n a l i s e d processes of s o c i a l choice themselves approximate those p o l i c i e s which contribute to human d i g n i t y . " 40 As we have seen before, "human d i g n i t y " i s open to very broad i n t e r p r e t a t i o n and some d i s t o r t i o n . Also, i t i s d i f f i c u l t to r e c o n c i l e the idea of i n d i v i d u a l g o a l - s e l e c t i o n with, on the other hand, power-broking i n the p o l i t i c a l arena. Reisman states the necessity f o r g o a l - c l a r i f i c a t i o n or the establishment of preferences but, seemingly, f a i l s to achieve e i t h e r . He says that the problem should be approached from the standpoint of personal g o a l - c l a r i f i c a t i o n and that an i n d i v i d u a l should not openly or t a c i t l y accept the goals of a commander, God, or any other e n t i t y , as h i s own and thereby shelving h i s own r e s p o n s i b i l i t y . However, the same c r i t i c i s m can be made here as was made of Pound; namely, of how we are to determine what are t r u l y a person's i n d i v i d u a l goals as opposed to ones superimposed upon him by various methods of "hidden persuasion" and "subliminal" suggestion. Reisman c r i t i c i s e s "natural goals", as adopted by A r i s t o t l e and others as being merely subjective choices but i t i s possible to apply t h i s same c r i t i c i s m to Reisman himself. 40. ID. at 92. - 34 -The major problem with this whole approach i s that i t l a r g e l y concerns i t s e l f with "observing" processes and the functioning of law i n the s o c i a l framework. This i s , of course, a u s e f u l way o f proceeding but i t does have serious l i m i t a t i o n s . Merely observing any s o c i a l p r a c t i c e from the outside w i l l t e l l you c e r t a i n things about what i s going on hut i t w i l l not t e l l you very much about the basic r a t i o n a l e behind i t . To take the analogy o f the game of chess; i f a detached observer who knew nothing of the game watched a hundred games of chess he would have a reasonable idea of the kind of moves that are made. However, he would not be able to d i s t i n g u i s h between "ru l e s " that are desirable to f o l l o w from the point of view of winning the game and rules that i t i s necessary to f o l l o w as a part of the game known as chess. Power processes do not give a system of values and are not a r e l i a b l e guide as to the goals of the majority of people. By adopting the approach of s o c i o l o g i c a l observation the way i s barred to obtaining a s a t i s f a c t o r y explanation of ordinary aspects of private law l e g a l procedures on a less grandiose scale. However, th i s approach does a l e r t us to the s i g n i f i c a n c e of p o l i c y i n law that the predominantly rule-governed view tends to regard as periphera.1 or within the "penumbral" area of j u d i c i a l d i s c r e t i o n . What i t does not t e l l us i s j u s t how this p o l i c y notion operates as a f a c t o r i n deciding p a r t i c u l a r cases. D. HARTZLER On t h i s question the work of H. Richard H a r t z l e r i s of some i n t e r e s t . H a r t z l e r takes j u s t i c e as h i s primary concept. ^ He states that i f there are obstacles to achieving primary goals then a sense of i n j u s t i c e w i l l r e s u l t . If there are no such obstacles, a l l w i l l experience a sense 41. H. Richard H a r t z l e r , J u s t i c e , Legal Systems And S o c i a l Structure, (Port Washington. New York: Kennikat Press 1976) (hereinafter H a r t z l e r (1976).) - 35 -of j u s t i c e . Thus, we see that H a r t z l e r does d i f f e r e n t i a t e between types of primary and secondary goals. He sees lav; as an instrument f o r creating and regulating regularized interactions i n society which may f a c i l i t a t e o r block primary and instrumental goal achievement and hence, the achievement of j u s t i c e . He says, "The s o c i a l engineer attempts to use law to provide systems of operational r a t i o n a l i t y wherein de c i s i o n techniques, appropriate to circumstances and goals, a i d i n problem s o l v i n g . " 42 I t seems, therefore, that the law and goals are again regarded as being separate e n t i t i e s . H a r t z l e r takes the example of the development of the law r e l a t i n g to consumer protection and manufacturers* l i a b i l i t y where, over the past century, r i g h t s of consumers have been much increased as an instance where the s o c i a l engineer has e f f e c t e d a change i n ideas i n favour of progress as opposed to maintenance of the status quo and s t a b i l i t y . Ttois implies that law i t s e l f i s e s s e n t i a l l y a s t a t i c system and that change has to be imposed from without. H a r t z l e r has drawn up a l i s t of primary and instrumental goals ^ which he integrates with Pound's j u r a l postulates and s o c i a l i n t e r e s t s , but i t seems simply to be an elaboration on the eight values of Lasswell and McDougal. As f a r as d e c i s i o n processes are concerned he has characterised four basic modes: the f i r s t i s the "formal i r r a t i o n a l " method of d e c i s i o n -making where for m a l i t y i t s e l f constitutes the d e c i s i o n process and reason and judgement play no part - "Obedience by recognised o f f i c i a l s to the 44 formality of the law makes the d e c i s i o n " 42: ID. a t 32 43« Hartzler's c l a s s i f i c a t i o n of goals i s as follows: see Hartzler (1976) at 56. Primary Goals: 1. E x i s t and survive; 2. P h y s i o l o g i c a l g r a t i f i c a t i o n ; 3. Love and a f f e c t i o n ; 4» Respect; 5» Self-respect; 6. Power and c o n t r o l ; 7. S k i l l ; 8 . Enlightment; 9. Prestige; lO.Aesthetic s a t i s f a c t i o n ; 11. Novelty; 12. Others. Instrumental Goals: 1.Freedom; 2 . R a t i o n a l i t y ; 3-Democracy; 4 . E q u a l i t y ; 5. Security; 6. Progress; 7* Appropriate i n c l u s i o n . 44. at 59. - 36 -The "formal rational" process is generally what actually goes on, that is, a system that allows for judicial discretion hut constrained by rules. The "substantive rational" type of decision-making is teleologically oriented and the rules are the servants of various policies. Judicial discretion, in this category, is fairly elastic in that a judge's decision must aim to f u l f i l some aspect of social policy and reflect current trends in precedent. This is the equivalent of the Lasswell/McDougal approach. Finally, Hartzler describes the "substantive irrational" process which is typified by the arbitrariness and unpredictability of the whim of an o f f i c i a l . He points out that in most "law-government" systems the second or third methods are the usual decision processes but in both instances the input for the exercise of that discretion s t i l l remains unexplained. Also, there is no logical reason why the two modes should be mutually exclusive and, as we shall see later, an amalgam of the two may be a more fruitful way of proceeding. To adopt Hartzler's terminology then, in a typical hard case the judge is faced with the alternative of using the formal rational method, which will probably ensure such objectives as certainty, predictability and clarity in the law, or of acting in a substantive rational manner and exercising his discretion to attain a result that will satisfy the ends of justice. Such an end would be the extension of the ambit of manufacturer product l i a b i l i t y . ^ This exemplifies the usual conflict between the (a) and 45. Hartzler cites the cases of Johnson v. Cadillac and MacPherson v. Buick as instances where the court held to the established law and acted in a substantive rational manner respectively. In the latter case the court took notice of contemporary values, interests and other factors and effected a change in the law on manufacturers' liability. Cadillac Motor Car Co. v Johnson, 221F801 (1915). MacPherson v. Buick Motor Co., 217 N.Y. 382, N.E. 1050 (1916) 111. - 37 -(b) - type goals but i s d i s j u n c t i v e i n that i t implies that one of those goals must be s a c r i f i c e d i n order to achieve the other. Wo explanation i s o f f e r e d as to why t h i s should be so and as to how we should decide which goal i s to predominate. I f law i s t r u l y an integrated system t h i s seems somewhat strange. A median formula of the two approaches can avoid t h i s s i t u a t i o n . In addition, as Hartzler r e a l i s e s , i f we have a s i t u a t i o n where some o f f i c i a l s decide cases on the basis of one method on some occasions, and others on d i f f e r e n t occasions p r e d i c t a b i l i t y and c e r t a i n t y w i l l be v i r t u a l l y impossible. In one case before a court the members of that court too can take d i f f e r e n t standpoints. H a r t z l e r sees the whole problem of uncertainty as being vexed even more by the factor of how the r u l e s of a system are used to s e t t l e disputes. He concurs with what appears to be the general consensus that r u l e s only apply to a l i m i t e d number of concrete (core) s i t u a t i o n s and, therefore, large areas of a c t i v i t y are s u b s t a n t i a l l y unregulated. So, he draws on p r i n c i p l e s , standards and concepts to f i l l t h i s v o i d . P r i n c i p l e s allow f o r greater human d i s c r e t i o n and judgement i n decision-making and standards are a form of "authoritative g e n e r a l i s a t i o n " even vaguer than rules or p r i n c i p l e s . The standard of the reasonable man i s an example of t h i s . Concepts are the broadest generalisations and permit of the widest exercise of d i s c r e t i o n . But t h i s thesis suffers from the same weaknesses as the theories of Dworkin and Hughes. I t gives no idea of how these p r i n c i p l e s , standards and concepts are to be evaluated or ranked. We are not t o l d what to do i f a p r i n c i p l e urges us to overthrow a r u l e or i f a standard i s more important than a concept. Indeed, these theories probably cannot do t h i s because they do not conceive of the purposes of r u l e s being fundamental and operative parts of r u l e s . - 38 -3. ALTERNATIVES We have looked a t the two most divergent arguments on law - Natural Law and P o s i t i v i s m , hut there are several writers who have off e r e d a l t e r n a t i v e s to these views. A. DWORKIN Ronald Dworkin has made an attack on p o s i t i v i s m . He states h i s p o s i t i o n i n t h i s way: "My strategy w i l l be organised around the f a c t that when lawyers reason or dispute about l e g a l r i g h t s and o b l i g a t i o n s , p a r t i c u l a r l y i n those hard cases when our problems with these concepts seem most acute, they make use of standards that do not f u n c t i o n as r u l e s , but operate d i f f e r e n t l y as p r i n c i p l e s , p o l i c i e s and other sorts of standards." 47 I t i s the i n t r o d u c t i o n o f these " p r i n c i p l e s , p o l i c i e s and other sorts of standards" that mark a departure from the s t r i c t p o s i t i v i s t p o s i t i o n . A8 Dworkin makes a d i s t i n c t i o n between p r i n c i p l e s and p o l i c i e s , but this i s not of any great s i g n i f i c a n c e and Dworkin himself notes that nothing turns on that d i s t i n c t i o n . The point he emphasises i s that r u l e s operate i n an " a l l or nothing" fashion and can only apply i n a l i m i t e d number of cases. The exceptions are part of that r u l e and should be included i n a f u l l statement of that r u l e . P r i n c i p l e s , however, cannot f u n c t i o n i n t h i s manner and cannot be extended to encompass counter-instances of the p r i n c i p l e i n an expanded statement. 46. R. Dworkin, Is Law a System of Rules?, Essays i n Legal Philosophy, (ed.R.S.Summers Oxford: Blackwell 1970) 25 47. ID. at 34« 48. ID. at 34' Dworkin defines a p o l i c y as "...that k i n d of standard that sets out a goal to be reached, generally an improvement i n some economic, p o l i t i c a l or s o c i a l feature of the community..." - 39 -In a p a r t i c u l a r f a c t s i t u a t i o n Dworkin recognises that several p o l i c i e s can he relevant and can point towards d i f f e r e n t s o l u t i o n s . A p r i n c i p l e argues f o r one r e s u l t and may he decisive hut i n the next case i t may be rejected. So, although such p r i n c i p l e s are a part of the l e g a l system a l l that i s required i s that o f f i c i a l s take that p r i n c i p l e into consideration i n reaching a d e c i s i o n . I t i s not necessary that they should always act upon i t . Dworkin f e e l s that t h i s i s an aspect of the 'l o g i c a l d i s t i n c t i o n " between r u l e s and p r i n c i p l e s . He also adds that p r i n c i p l e s have another c h a r a c t e r i s t i c not shared by r u l e s - a dimension of weight. The judge, then, i s required to recognise the various p r i n c i p l e s involved i n a case where the rules have proved to be inadequate and to engage i n a process of balancing up the p r i n c i p l e s according to the r e l a t i v e weight of each i n order to a r r i v e at a d e c i s i o n . Dworkin states the matter i n t h i s ways "... one l e g a l r u l e may be more important than another because i t has a greater or more important r o l e i n reg u l a t i n g behaviour. But we cannot say that one rule  i s more important than another within the system of  r u l e s , so that when two rules c o n f l i c t one supersedes  the other by v i r t u e of i t s greater weight. If two rules c o n f l i c t , one of them cannot be a v a l i d r u l e . The decision as to which i s v a l i d , and which must be abandoned or recast, must be made by appealing to considerations beyond the rules themselves. A l e g a l system might regulate such c o n f l i c t s by other r u l e s , which pre f e r the r u l e enacted by the higher authority, or the r u l e enacted l a t e r , or the more s p e c i f i c r u l e , or something of that s o r t . A l e g a l system may also prefer the rule supported by the more important p r i n c i p l e s . (Our own l e g a l system uses both of these techniques)." 49 To the passage underlined i n the above excerpt we could ask the question "Why not?" Dworkin sees a rule merely as a p r e s c r i p t i o n f o r behaviour 49« He c a l l s a p r i n c i p l e , "... a standard to be observed, not because i t w i l l advance or secure an economic, p o l i t i c a l or s o c i a l s i t u a t i o n deemed de s i r a b l e , but because i t i s a requirement of j u s t i c e or f a i r n e s s or some other dimension of morality". I b i d , at 39. - 40 -of a certain kind but puts the question of why the rule requires that conduct, that i s , its purpose, as a completely separate issue. There does not appear to be any good reason for this and Dworkin notes that frequently, i t is hard to define the roles played by rules and principles. In the instance of a "hard case" then, i t is a principle that induces a judge to make some change or adaptation of the existing law. Dworkin 50 uses as examples the cases of Riggs v. Palmer and Henningsen v 51 Bloomfield Motors, Inc. where the courts gave consideration to so-called "principles" in order to achieve results that accorded with the demands of justice. He is thus trying to establish the character of principles as, though not being rules, yet also not being totally within the discretion of a judge. He must consider them, although he need not follow them. But this fact does not take us much further towards discovering how we may account for judicial "discretion". Certainly, Dworkin is correct in pointing out that positivism stops short of dealing with the hard cases that provide the greatest rest for a theory of law. Judicial discretion is not a mysterious void; on the contrary, i t is an area of great creativity but, as we have seen, the problem is to find an explanation for the input that gives us the decisions. If, as Dworkin says, we cannot l i s t principles as they are constantly changing and falling into conflict, and yet, these intangible principles are simultaneously binding we appear to have very muddied and uncertain criteria for justifying decisions. If 50. 115 N.Y. 506,22 N.E. 188 (1889). Here, the question was whether an heir under a will could benefit though he had murdered the testator. 51. 32 H.J. 358, 161 A.2d 69, ( i 9 6 0 ) . This case related to the way in which an automobile manufacturer could limit his lia b i l i t y in respect of defective products. - 41 -there i s no structure or c l a r i t y to the p r i n c i p l e s then how i s i t possible f o r them to be binding on a judge? In opposition to Dworkin i t w i l l be argued that r u l e s do have a hierarchy and structure and that this can guide a judge i n reaching h i s d e c i s i o n . The d e f i n i t i o n of a p r i n c i p l e offered by Dworkin i s c l e a r l y tantamount to a statement of a goal of society. In most cases that goal i s embodied i n a r u l e and i n that case surely i t i s sensible to regard the goal and the rule as one. B. HUGHES Another v a r i a t i o n the p o s i t i v i s t t r a d i t i o n has been described by 52 Graham-Hughes. He has found both the approaches of Professors F u l l e r and Hart to be unsatisfactory and makes an attempt to remedy the d e f i c i e n c i e s that he sees i n t h e i r theories. Of F u l l e r he says, "The p r i n c i p a l task of statutory i n t e r p r e t a t i o n f o r Professor F u l l e r i s thus always a search f o r purpose. How the search i s to be conducted and what r e l a t i o n s h i p there i s between the concepts of law and p o l i c y he does not discuss a t any length..." 53* This r e f l e c t s the d i f f i c u l t i e s we have already observed with F u l l e r ' s theory. As f a r as rules are concerned Hughes f i n d s the same k i n d of problems that Dworkin noted, i n that r u l e s only provide guidance i n a l i m i t e d number of clear-cut cases. 52. G. Hughes, Rules, Policy and Decision-Making (1968) 77 Yale Law Journal 411. 53• G. Hughes, Lav; Reason and J u s t i c e Essays i n Legal Philosophy (ed. Hughes New York: New York Uni v e r s i t y Press (1969). 110. - 42 -Hughes, however, also sees ( p r i n c i p l e s " as an important f a c t o r that the p o s i t i v i s t s f a i l to take i n t o consideration i n t h e i r account of j u d i c i a l decision-making. The essence of his thesis i s found i n the following passage: " P r i n c i p l e s are vague signals which a l e r t us to general considerations that should he kept i n mind i n deciding disputes under r u l e s . So we decide under rules but i n  the l i g h t of p r i n c i p l e s . A maxim i s a p r i n c i p l e that has been d i s t i l l e d i n a t r a d i t i o n a l , a p h o r i s t i c form. In marginal cases r u l e s may be applied i n the l i g h t of p r i n c i p l e s , but sometimes, when no concrete r u l e i s present and relevant, a case must be decided by a d i r e c t a p p l i c a t i o n of p r i n c i p l e or maxim to the facts without the i n t e r p o s i t i o n of a more concrete r u l e . " 54 This i s very much l i k e the p o s i t i o n taken by Dworkin and, s i m i l a r l y , Hughes attacks the weakness i n Professor Hart's theory of core and panumbra. Hughes r e a l i s e s that most c o n f l i c t s take place between the goals of consistency and p r e d i c t a b i l i t y and s i m i l a r notions, and more aesthetic goals such as those of freedom, e q u a l i t y and the l i k e . He argues that p r i n c i p l e s serve to illuminate the p o l i c y considerations f o r the judge that he should note i n coming to h i s d e c i s i o n . Again, though, the judge i s under no o b l i g a t i o n to follow one p r i n c i p l e rather than another. Hughes c r i t i c i s e s the p o s i t i v i s t attempt to d i f f e r e n t i a t e law and p o l i c y as being too s i m p l i s t i c . Everything Hughes says i s , so f a r , quite true, but the r e a l problem of how we use these materials (which i s r e a l l y the most important p r a c t i c a l question) i s not s a t i s f a c t o r i l y resolved. Hughes undertakes an argument that seeks to make the point that the reason f o r a judge's d e c i s i o n , i n the sense that he may have taken a bribe or be subject to blackmail, i s not the same as the j u s t i f i c a t i o n 54. ID. a t 111. - 43 -or explanation of that de c i s i o n , i n the sense of the l e g a l r a t i o that could he expressed i n written form. This i s p e r f e c t l y c o r r e c t but seems to be a d i f f e r e n t kind of an argument to that on the r e l a t i o n s h i p of law and p o l i c y . I f a cl e a r , p r a c t i c a l l i n k between law and goals can be seen, then the question of the corrupt judge i s seen as a v i t a l matter - but not one of a l e g a l character. A l s o , Hughes seems to think that a purely p r e s c r i p t i v e statement i s to be distinguished from a "general r u l e " , i n that the former may not be 55 influenced by p o l i c y notions. This i s a confusing argument f o r even an i s o l a t e d command such as an order given to a c h i l d , "Go to bed by 7 o'clock" provokes the response "Why?", ju s t as much as the laying down of a general r u l e that the c h i l d s h a l l go to bed by 7 every night. Such arguments are not p a r t i c u l a r l y relevant to the cent r a l problem and, we would suggest, confuse the issue. In expanding on P u l l e r ' s "overly 56 narrow and overly mysterious" perceptions of r u l e s and p o l i c y , Hughes notes that, frequently, the purposes or p o l i c y notions are to be found within the r u l e s i t s e l f , or within other rules or within p r i n c i p l e s , maxims or doctrines. C e r t a i n l y , t h i s i s so but why does Hughes f i n d i t necessary to r e s o r t to the d i s t i n c t i o n between rules and p r i n c i p l e s ? Possibly he does so because he f e e l s that some p o l i c i e s or goals are less important or less c l e a r and, therefore, are not encompassed by a r u l e and must, consequently, be sought i n some p r i n c i p l e less concrete and binding. But, as we have seen before, society regards c e r t a i n goals as more important i n c e r t a i n circumstances and, accordingly, i f the ru l e and 55- IB- a t 122. 56. ID. a t 123. - 44 -i t s goal are one we may discover the ordering given to r u l e s i n a way that may help us to resolve even the hard cases. By i n s i s t i n g on q u a l i t a t i v e l y d i f f e r e n t rules and p r i n c i p l e s the former of vAiich are binding and the l a t t e r are not, both Hughes and Dworkin render this impossible. In the writings of both Hughes and Dworkin there is an awareness of the causal r e l a t i o n s h i p between the r u l e and the behaviour that i t seeks to promote, but they do not develop t h i s idea i n any great d e t a i l . Hughes observes that: "... we are likewise interested i n a r u l e system pr i m a r i l y because i t has a s i g n i f i c a n t e f f e c t on behaviour and not merely because i t i s a c o l l e c t i o n of p r e s c r i p t i v e sounding utterances." 57' He elaborates on this point i n h i s attack on the approach of the p o s i t i v i s t s i n seeing law s o l e l y as a rule e d i f i c e . But, disappointingly, stops short of expanding on the p r a c t i c a l consequences of h i s own " p o l i c y " approach. Thus, once more we have a d i s j u n c t i v e choice between two sets of goals of d i f f e r e n t characters and must, apparently, s a c r i f i c e one type i n order to obtain the other. These sets of goals have been described as the (a) no and (b) - type goals. B a s i c a l l y , the (a) - type goals represent such objectives as c l a r i t y and consistency i n the law, while the (b) - type goals are t y p i f i e d by the d e s i r a b i l i t y of obtaining peace, freedom of actio n , s e c u r i t y and other ideals of j u s t i c e i n society. The f e e l i n g that we must give up one or the other r e s u l t s from a f a i l u r e to see both types of goal as an integrated part of the law i t s e l f . A s o l u t i o n to this 57 • n>j. at 126 58. Coval and Smith, The Causal Theory of Law, a t 111. - 45 -has been offered that attempts to formulate a theory that i s t e l e o l o g i c a l 59 but i n a regulated or s t r u c t u r a l manner. y We w i l l come to t h i s l a t e r C. SUMMARY A f t e r examination of the major theories to date the main f a c t o r that emerges i s that the "black box" mechanism of j u d i c i a l d i s c r e t i o n i s s t i l l somewhat mysterious i n terms of input. In general, we have the p o s i t i o n that rules are regarded as one matter and purpose or goals as another and any immediate nexus between the two i s , at l e a s t , tenuous. At some stage i n any decision-making process some reference must be made to the wider p o l i c y considerations by v i r t u e of the causal r e l a t i o n s h i p between law and i t s aims; the question i s , how should t h i s be done? If p o l i c y f a l l s to be considered as a feature i n a v a r i e t y of p r i n c i p l e s , standards and other c r i t e r i a i t i s very d i f f i c u l t to dis c e r n any structure or ordering to these values. This problem would be lessened i f the r e l a t i o n s h i p between r u l e s and t h e i r wider p r a c t i c a l e f f e c t i n the s o c i a l context were acknowledged. Lasswell and McDougal deserve much c r e d i t f o r emphasising that t h i s l a t t e r aspect i s not a secondary issue to be considered at a separate time, i f at a l l , from the body of r u l e s . Of th i s approach they say, "The consequence i s a high degree of i s o l a t i o n and abstraction of the i d e n t i f i e d r u l e s from the community and s o c i a l processes which must at l e a s t condition t h e i r p r e s c r i p t i o n , invocation and a p p l i c a t i o n , and upon which t h e i r a p p l i c a t i o n must have i t s e f f e c t s . " 60. The point i s w e l l taken. Nevertheless, the objection to the Lassw e l l / McDougal theory remains - i t i s fundamentally a s o c i o - p o l i t i c a l exercise 59. B i a t 110 60. Lasswell, McDougal, Trends i n Theories About Law; Maintaining  Observational Standpoint and Delimiting the Focus of Inquiry (1976) 8 Univ. Toledo Law Rev. - 46 -rather than a l e g a l one and thus, f a i l s to deal with many of the c r u c i a l issues that a r i s e i n law. Hoirever, a theory has now been put forward that attempts to deal with the issues discussed above and i s the one that forms the basis f o r t h i s t h e s i s . 4. THE CAUSAL THEORY OF LAW 61. A. GENERAL This theory marks a s i g n i f i c a n t departure from previous theories of or about the nature of law, as although i t i s t e l e o l o g i c a l l y oriented i t also sees law as a system of r u l e s . In e f f e c t , i n adopting aspects of the major theories we have considered i n t h i s chapter, the Causal Theory seeks to provide a s o l u t i o n f o r the deficiences i n those theories. The model of law offe r e d i s thus described: "The model which we o f f e r rests upon a number of assumptions about the nature of l e g a l systems. The f i r s t i s that law i s the kind of ru l e structure which cannot be viewed i n i s o l a t i o n from t e l e o l o g i c a l considerations (indeed, most structures of ru l e s w i l l be found to be of t h i s k i n d ) . The second i s that some of these t e l e o l o g i c a l factors are incorporated into the very f a b r i c of the law i t s e l f i n the form of higher-order or deep structure, p r i o r i t y s e t t l i n g r u l e s . The t h i r d assumption i s that at l e a s t some of these higher-order rules are generative i n the sense that they allow the l e g a l system i t s e l f to produce new rules without external input through the l e g i s l a t i v e process." 62 61. Coval and Smith, The Causal Theory of Law at 52. 62. J . C. Smith, Legal O b l i g a t i o n (Toronto: U n i v e r s i t y of Toronto Press 1976) 175. - 47 -As we noted i n the discussion of the theories of Dworkin and Hughes, having r e s o r t to such things as p r i n c i p l e s and standards i n order to explain the j u d i c i a l decision, although c o n s t i t u t i n g an advance on the s t r i c t l y p o s i t i v i s t p o s i t i o n , s t i l l leaves us with a large degree of uncertainty and u n p r e d i c t a b i l i t y i n the law. It i s t h i s that i s taken up by Smith and Coval. They argue that Dworkin f a i l e d to appreciate the "second-order nature" of the rules that he c a l l s " p r i n c i p l e s " . Thus, p r i n c i p l e s are regarded as a separate c r i t e r i a that merely have a weighting e f f e c t on a decision. However, Smith and Coval state that a p r i n c i p l e can be 63 expanded or extended i n the same way as a r u l e , and can, therefore, act to remove anomalies among the f i r s t - o r d e r r u l e s . As such i t i s not an independent e n t i t y but i s an i n t r i n s i c part of a r u l e . When rules c o n f l i c t one rule may, at f i r s t blush, appear to be as good'as another and so the problem i s to discover how the rules r e l a t e to each other and how we are to decide which rule w i l l p r e v a i l . The goals of the rules i n question are the source of the answer to t h i s . To date, we have been presented with the a l t e r n a t i v e of choosing between e i t h e r a goal or rule-dominated jurisprudence, but there i s no compelling reason f o r having to face this d isjunctivism. Smith and Coval make the point that, frequently, there i s no c o n f l i c t between two sets of laws i n the sense that a p a r t i c u l a r case i s equally w e l l covered by e i t h e r . The c o n f l i c t i s a c t u a l l y found a t a higher l e v e l , that i s , i n the goals of the laws involved. They say, "The extent to which c o n f l i c t e x i s t s between f i r s t -order r u l e s and i s resolvable within the law, i s the extent to which such h i e r a r c h i c a l matters are i n t e g r a l to the law." 64 63. For t h e i r argument on this point, see, Coval and Smith, Some S t r u c t u r a l Properties of Legal Decisions (1973) 3 2(i) Cambridge Law Journal 81. £A T T l 0 + Q / l - 48 -This h i e r a r c h i c a l feature i s highly important f o r the purposes of c o n f l i c t r e s o l u t i o n . If goals can he placed i n some kind of h i e r a r c h i c a l structure then we have at l e a s t some method of evaluating c o n f l i c t i n g rules and determining p r i o r i t i e s with regard to the f a c t s a t hand. I n f a c t , unless such an ordering of goals i s implied by the f i r s t - o r d e r r u l e s , the second-order r u l e s cannot be formulated. This formulation then, i s pr i m a r i l y a l e g a l matter and not a s o c i o l o g i c a l one. Obviously, sociology i s important i n i n f l u e n c i n g what goals a given society might wish to adopt but t h e i r subsequent operation within a l e g a l system i s a l e g a l matter. A judge can therefore make use of ordered goals to produce second-order rules i n r e s o l v i n g c o n f l i c t s . The i n t e g r a t i v e character of this system i s much emphasised by Smith and Coval and has another aspect i n what i s termed the generative capacity of the law to produce new laws. In this respect i t i s markedly d i f f e r e n t from the majority of the other models that we have examined which are predominantly s t a t i c i n nature and generally look to external agencies for innovation and change. Most theories tend to regard rules as being rather barren and one-dimensional and not dynamic and flexible;, 1 but; "The capacity to generaie new second-order rules i s a formal property of the i n s t i t u t i o n of law i t s e l f and not emergent from the d i s c r e t i o n of the judge." 65. Thus, the contention of the s o c i o l o g i c a l j u r i s t s that law i s not s e n s i t i v e to the prevalent needs and inte r e s t s existent i n society may be met. The law may take account of changed circumstances and opinions - but i t must do so i n a r u l e - l i k e manner. If i t does not, we f i n d ourselves i n a 65. ID. at 102. - 49 -s i t u a t i o n where the law i s indecisive and unpredictable and the judge becomes embroiled i n an intangible procedure of balancing or weighing i n t e r e s t s . This hierarchy of goals i s , at i t s base, highly s p e c i f i c as to the p a r t i c u l a r goals o f p a r t i c u l a r laws and becomes i n c r e a s i n g l y more generalised at higher l e v e l s . At the highest l e v e l the goals w i l l tend to approximate to the moral order and may well p a r a l l e l those higher i d e a l s that the nat u r a l law proponent would s e l e c t or that would be analogous to the Lasswell/McDougal precept of a pu b l i c order of human d i g n i t y . The r e l a t i o n between the various goals i n the structure i s a cause and e f f e c t one as the lower-level goals are instrumental to achieving the higher ones. Thus, i n any given case, i f no i n d i c i a as to the co r r e c t decision are immediately apparent, i t w i l l be possible to r e f e r to a higher l e v e l of goal orderings. There i s no need, therefore, to r e s o r t to a search f o r i l l - d e f i n e d and unstructured p r i n c i p l e s or p o l i c i e s f o r these w i l l be incorporated into the goal structure at various l e v e l s as are a p p l i c a b l e . B. THE MATURE OP THE GOALS We now come to a point that was mentioned e a r l i e r - that most of the c o n f l i c t s that a r i s e occur between the kin d of goals that include concepts such as consistency, p r e d i c t a b i l i t y and i m p a r t i a l i t y , (the (a) - type g o a l s ) , and those that feature peace, privacy, physical and mental well-being and many more accepted values. Other theories seem to presume that i n such a c o n f l i c t one of the types of goals must be given up. Smith and Coval - 50 -argue that no such d i s j u n c t i v e choice e x i s t s . A causal r e l a t i o n e x i s t s between the (a) and (b) - type goals i n that i n order to obtain (b), we must have (a). In f a c t , the two are not mutually exclusive but, on the contrary, are very c l o s e l y interdependent. The r e l a t i o n s h i p i s a t e l e o l o g i c a l one. As a consequence laws must he so formulated that instances where (a) and (b) are incompatible are excluded from t h e i r ambit. Most a c t i v i t i e s are purposeful and so there i s a causal l i n k between the performance of an a c t i o n and some desired r e s u l t . S i m i l a r l y , a causal chain e x i s t s or may he evoked f o r any rule to be operative. Smith and Coval put i t i n this way, "Practices have to be b u i l t upon what i t i s possible to achieve i n the world. In order to achieve (b) i n an (a) - type fashion, e.g., i n order to achieve the reduction of violence, (b), by means of a l i n e of a c t i o n regulated by r u l e with (a) - type p r o p e r t i e s , there must be a well-entrenched causal route r e a d i l y a v a i l a b l e to form the basis of the rule which w i l l take us to (b) i n an (a) - l i k e fashion. Otherwise the r u l e i s l i t e r a l l y without e f f e c t . " 66. C. THE EXCEPTIONS TO RULES This system also provides the mechanisms to take care of exceptions to r u l e s , that i s , when a breakdown occurs i n the causal chain. These exceptions f a l l under four categories which may be summarised as f o l l o w s : 1. The s i t u a t i o n s where the causal connection between the r u l e s and the prescribed behaviour breaks down. Where only a l i n k i n the causal chain i s missing the law w i l l not hold people responsible and a sanction w i l l be applied where i t i s possible f o r the l i n k to he restored. However, i n cases where i t i s 66. Coval and Smith, The Causal Theory-of Law. 67. For f u l l discussion see, Coval and Smith, The Causal Theory of Law. - 51 -impossible to achieve t h i s the law excuses people. I n f a n t s and the m e n t a l l y i l l , f o r example, are thus not held to be r e s p o n s i b l e and defences such as those of duress and undue i n f l u e n c e are p o s s i b l e . Such d o c t r i n e s as f r u s t r a t i o n o f c o n t r a c t where events render i t impossible to f u l f i l o b l i g a t i o n s are covered under t h i s p r o v i s o . I t i s not being denied t h a t c e r t a i n i n i t i a l " i n v o k i n g " a c t s , (such as promising to do something) took place i n a s e r i e s of events; i n s t e a d , we acknowledge t h a t somewhere i n the causal c h a i n something occurred that rendered the achievement of the d e s i r e d outcome impossible. 2. S i t u a t i o n s where the causal connection between the p r e s c r i b e d conduct and the goal of the r u l e breaks down: t h i s covers the s i t u a t i o n where a person does not do something t h a t he undertook to do because to do so would be p o i n t l e s s as i t could not achieve the d e s i r e d r e s u l t . 3. S i t u a t i o n s where, i n given circumstances, the c a u s a l l i n k w i l l g i v e you ( b ) , but a l s o something worse than (b). I t may happen that the doing of "x", though i t w i l l achieve "y" may a l s o , as a s i d e - e f f e c t , give us a negative r e s u l t " z " that was q u i t e unforeseen beforehand. I f t h i s e f f e c t " z " i s d e t r i m e n t a l to the a t t a i n i n g of another g o a l that we h o l d to be more important to us than' "y", then p l a i n l y i t would be i l l o g i c a l to i n s i s t on "y". The law a l l o w s f o r such s i t u a t i o n s by p r o v i d i n g "the defence of n e c e s s i t y , thus a l l o ? d n g one r u l e of the system to be i n f r i n g e d i n order to p r o t e c t a more h i g h l y valued g o a l . What emerges i s that when c o n f l i c t s a r i s e and - 52 -we are forced to choose what outcomes are preferred t h i s choice i s not "discretionary" or a matter of g i v i n g "weight" to c r i t e r i a but i s determined by an agreed ordering of our goals. The basic goals w i l l be f a i r l y stable but those of more equal value w i l l be somewhat f l u i d and the ordering may flu c t u a t e . This i s not a defect but, on the contrary, assures the dynamism of the system and i t s s e n s i t i v i t y to evolving s o c i a l needs. 4. Where the point of a rule or practice i s no longer a desired goal. C l e a r l y , i f we are no longer i n t e r e s t e d i n securing a p a r t i c u l a r and the r u l e directed towards that end becomes redundant and obsolete. The causal chain has t o t a l l y broken down. This problem of the enforcement of archaic or obsolete laws has taxed many writers, but under the Causal Theory may be dealt with quite simply: Coval and Smith say, "Our view i s that a l e g a l system may deal with obsolete laws by simply not enforcing them. This suspension should not be considered a matter o f d i s c r e t i o n , we b e l i e v e , but should be regarded as automatic once i t i s c l e a r that a p a r t i c u l a r piece of l e g i s l a t i o n no longer serves a (b) - type goa l " . 68 In such cases there i s no necessity f o r involvement i n debate on whether some provision i s or i s not a law. Instead, "we suspend the r e s p o n s i b i l i t y f o r compliance." Another important aspect of these four exception clauses i s that they enable the law to re-write i t s e l f i n a systematic way, but not i n such a manner that i t might overlap into unrelated areas where i t could have 68. ID. at 144 - 53 -unanticipated e f f e c t s . Change must occur without v i o l a t i n g the (a) - type goals. This system i s much more l i k e l y to s a t i s f y the requirements of j u s t i c e than the ones where a d i s j u n c t i v e p o s i t i o n i s regarded as an i n e v i t a b i l i t y . The f a c t that the (a) and (b) - type goals are seen as working i n the same d i r e c t i o n and not divergently means that we can have c e r t a i n t y plus whatever v i r t u e or value i s at stake. Thus, P u l l e r ' s concern i n r e l a t i o n to e v i l laws may be set at r e s t and Lasswell and McDougal's d i s t i n c t i o n between what may be termed "law" ( i n the sense of a system of r u l e s ) , and the " r e a l law" that a c t u a l l y emerges i n patterns of decisions i s blurred. Instead of decisions being dictated by p o l i t i c a l superiors i n a power-strueture, they w i l l be made according to structured c r i t e r i a furnished from within the law i t s e l f . When we are forced to make choices between (a) and (b) - type goals, j u s t i c e can appear to become a somewhat a r b i t r a r y matter as no system of p r i o r i t i e s can be established and acted upon i n future cases. If there i s no s t a b i l i t y i n a system then the d u r a b i l i t y and effectiveness of changes i s dubious. By the same token, a system that i s stable as f a r as change i s concerned may be hi g h l y predictable and c e r t a i n but i t w i l l be a barren structure that w i l l lose touch with the s o c i a l r e a l i t i e s . D. COMMENT I t i s p r i m a r i l y t h i s avoidance of d i s j u n c t i v i s m that recommends the Smith and Coval theory as being a more s a t i s f a c t o r y one than the others that we have examined. C l e a r l y , the f u l l extent to which i t can be u t i l i s e d i n determining outcomes of cases cannot yet be assessed. There w i l l always be great problems of determination where competing goals are - 54 -of approximately equal value but the suggestion is that the standards are there and i t is not a question of weighing or balancing principles or other criteria. What is particularly striking is that Smith and Coval have looked at what is actually involved in normal, everyday activities and practices in terms of cause and effect relationships and how these are constructed and have applied this to the practice of law. Since, in general, most people do "x" in order to achieve "y", i t is logical to assume that laws, which are, after a l l , for the regulation of human conduct and affairs should similarly be purposeful. The example of promising that is used to illustrate the theory is a 69 very fruitful one. When a person makes a promise he effectively invokes the body of the practice and a causal chain that causes the hearer to react in a certain way and is directed towards achieving a certain goal. However, i f events intervene that change the circumstances in the light of which the promise was made or in relation to the carrying out of that promise, then in the social and legal context we do not insist upon performance. If we cannot achieve our original goal there would be no point in doing so - especially i f , incidentally, we achieve a negative outcome. By viewing law as a unity - an integrated structure, we have a more practical tool for analysing decision-making than has yet been devised. Smith and Coval are aware that they may be accused of representing the law as i t "ought" to be rather than as it is, but say this in answer, 69. ID. at 116. See discussion on the invocation of a practice and the distinction between the invoking features and the body of the practice. - 55 -"The answer i s "that such pr a c t i c e s are a l l of them p r e s c r i p t i v e . They t e l l us how we ought to proceed i n order to achieve c e r t a i n goals and ipso facto they admit of various abuses. The very concept of an "abuse", " e r r o r " or "mistake" presupposes a norm or measure as to how the prac t i c e ought to have proceeded, and from which there has been a departure. But, unless the d i s t i n c t i o n between what "ought to be" and "what i s " , i s made, the abuses cannot be e i t h e r properly explained or prevented." 70 We have seen that goals and t h e i r orderings by the law are of c r u c i a l importance to t h i s theory as f a r as i t s p r a c t i c a l applications are concerned. I t i s the purpose of the r e s t of this thesis to attempt to c l a s s i f y the hierarchy of goals and to describe the problems inherent i n this kind o f undertaking. I t i s worth emphasising that the c l a s s i f i c a t i o n i s to be of those goals a c t u a l l y to be served by the law and i s not analogous to a l i s t of " i n t e r e s t s " or "claims" as described by the s o c i o l o g i c a l j u r i s t s . In answer to the objection that t h i s approach ignores the s o c i a l r e a l i t i e s and in t e r e s t s not protected by the law, i t i s argued that the very nature of ihe theory does not permit this to happen, i t i s possible to look beyond the bare bones of the rules per se, but i n a s t r u c t u r a l l y consistent manner so that the wider ramifications of the case may be seen i n the goals that are i n c o n f l i c t . I t i s d i f f i c u l t to imagine many i n t e r e s t s that cannot be taken into account i f this pattern i s followed. In a d d i t i o n , as we have seen, the law can re-write i t s e l f and remain i n tune with contemporary f e e l i n g s and values. 70. ID. at 151 - 56 -III THE CLASSIFICATION OF GOALS 1. METHOD OF FOMULATION OF THE CIASSIFICATION At the conclusion of the l a s t chapter we embarked on a preliminary discussion of the theory of Professors Coval and Smith as o f f e r i n g a p o t e n t i a l s o l u t i o n to the problems of l e g a l philosophy that emerged throughout the consideration of the relevant theories so f a r postulated. C e n t r a l to the Coval and Smith p o s i t i o n i s the concept of the existence of a matrix of goals. I t i s this matrix that i s the key to the p r a c t i c a l u t i l i s a t i o n of the Causal Theory of law i n solving- disputes. Within the matrix goals w i l l be ordered or ranked i n ascending order of generality., and, at the base of the structure w i l l be seen the highest degree of s p e c i f i c i t y i n the p a r t i c u l a r provisions of various r u l e s . C l e a r l y , then, i n order to be able to examine the Coval - Smith standpoint i n greater d e t a i l and i n order to be able to test the e f f i c a c y of i t s a p p l i c a t i o n , there i s a need to formulate some catalogue of goals i n a matrix from which basis we can work. In t h i s chapter an attempt w i l l be made to do t h i s . Inevitably, any such posited c a t e g o r i s a t i o n w i l l be subject to c r i t i c i s m as being a r b i t r a r y , and though t h i s i s , to a c e r t a i n extent, v a l i d the point must be made that the goals are drawn from the guidelines afforded by the law i t s e l f . Before embarking on the c l a s s i f i c a t i o n of goals i t s e l f some explanation of how and why the categories l i s t e d were selected w i l l be given. The f i r s t task was to decide how to describe or i d e n t i f y the goals derived. C l e a r l y , there are cer t a i n objectives within society that are of o v e r r i d i n g - 57 -importance f o r the continued existence of that society; these may a p t l y he termed the "primary" goals. Generally, these primary goals w i l l always take precedence over the other goals of the system. A f t e r formulating and r e f i n i n g various l i s t s of possible categories of goals i t was possible to d i s t i l these p o s s i b i l i t i e s i n t o three major categories from which supplementary sets of primary goals could be evolved. Inevitably, there w i l l be considerable overlap between categories whatever the c l a s s i f i c a t i o n but, i n order to minimise confusion as much as possible (yet avoiding an o v e r - s i m p l i f i c a t i o n of the problem), i t was thought best to aim f o r a f a i r l y concise and comprehensible categorization. In order to i l l u s t r a t e this i t may be useful to examine b r i e f l y an e a r l i e r formulation of the catalogue of goals as a comparison to the one f i n a l l y adopted."'" At one stage four possible major goals presented themselves: they were as follows; a) The safety and preservation of l i f e . b) Fundamental freedoms of thought and conscience. c) The regulation and c o n t r o l of wealth and property d) Protection of the environment and the q u a l i t y of l i f e . However, on r e f l e c t i o n , i t seemed that the l a s t category could e a s i l y be subsumed under the other three. Categories (a) and (b) contain elements common to both; f o r example, " l i b e r t y " can r e l a t e both to p h y s i c a l and mental aspects and would not f i t comfortably into e i t h e r (a) or (b). Thus i t seemed preferable to adopt the present c l a s s i f i c a t i o n which can cover a l l of the above four categories. 1. See Text, IHFRA, a t 72 - 73« - 58 -Obviously, one of the great problems with attempting any c l a s s i f i c a t i o n of t h i s nature i s that any choice i s n e c e s s a r i l y a r b i t r a r y . Nevertheless, i t i s possible to condense the major aims of the law into a r e l a t i v e l y small l i s t . The t e s t f o r the comprehensiveness of such a l i s t comes i n determining whether there are laws i n existence that cannot be c l a s s i f i e d under the selected categories. In f a c t , this d i d not occur when compiling the l i s t so that i t would seem that, currently, the major goals adopted f o r the l e g a l system are s u f f i c i e n t . The sets o f primary goals were obtained by making a systematic breakdown of the laws encompassed i n a comprehensive set of statutes, ( i n this case Halsbury's Laws of England). Having ascertained the nature of the areas with which the law i s c h i e f l y concerned i t was possible to summarize these and place them under the appropriate major categories. The approach taken throughout i s e s s e n t i a l l y from the l e g a l point of view. The process i s not one of observing and noting " i n t e r e s t s " being asserted i n society as was done by the s o c i o l o g i c a l j u r i s t s . Rather i t i s an a n a l y s i s of how the major goals, as r e f l e c t e d i n the law are ordered and structured by the law. The f i r s t major goal heading selected i s " l i b e r t y " and the f i r s t sub-heading under t h i s (communication and the free flow of information), represents the kind of goals that protect not only the fundamental freedoms of conscience but also p h y s i c a l i n v i o l a b i l i t y and freedom of movement i n s o c i e t y . In a healthy society there should be very l i t t l e r e s t r i c t i o n of the flow and exchange (and a v a i l a b i l i t y ) o f information and discussion of ideas. The law seeks to safeguard and promote this while imposing l i m i t a t i o n s where necessary as i s seen i n the more d e t a i l e d 2. See Text, INFRA at 72 - 73 for the c l a s s i f i c a t i o n of the major goals. - 59 -discussion of this category. Category (b) under t h i s heading r e l a t e s to the i d e a l that people should be given the best possible opportunities to develop and f u l f i l themselves and that those who are l e s s equipped to do so should be given a d d i t i o n a l assistance and support. The second major category headed "well-being" i s l a r g e l y self-explanatory, being d i r e c t e d towards physical and mental welfare generally. F i n a l l y , the category dealing with material resources may include both property regulation as a whole and protection of the environment and conservation. The d i s t i n c t i o n between i n c l u s i v e and exclusive resources i s explained i n d e t a i l f u r t h e r on i n this chapter. Problems a r i s e however, where t o t a l l y novel f a c t s i t u a t i o n s present themselves f o r a decision by the courts. I f there should be no remotely s i m i l a r f a c t s i t u a t i o n s to guide decision i t would seem that e x t r a - l e g a l factors such as public opinion must influence d e c i s i o n . In r e a l i t y , of course, there are u s u a l l y plenty of precedents a v a i l a b l e , the question being as to which should be followed. A l s o , i t must be r e a l i s e d that e x t r a - l e g a l f a c t o r s do have a s i g n i f i c a n t influence upon l e g a l development. For example, the a c t i v i t i e s of public pressure groups frequently r e s u l t i n a change i n the law being e f f e c t e d . But t h i s f a c t should be d i s t i n g u i s h e d from the manner i n which the law operates as a system. In going through the statutes we cafe obtain a f a i r l y c l e a r idea of the kind of d i r e c t i o n a l changes that are taking place within the law and, i n turn, such changes - 60 -w i l l have a marked e f f e c t on the way that goals are ordered within the matrix. Thus we can observe c e r t a i n areas of law where the orderings w i l l u s u a l l y remain stable and others that, taken i n conjunction with s o c i a l trends and needs w i l l be subject to f l u c t u a t i o n and change. S o c i a l and l e g a l goals are not v a s t l y divergent. Indeed, something would be wrong with the system i f they were. Any l e g a l system must be f l e x i b l e and capable of generating new r u l e s i n keeping with changing s o c i a l needs i n order to r e t a i n i t s r a i s o n d'etre. Yet for the purpose of de-mystifying the black-box mechanism of the j u d i c i a l d e cision i t i s seemingly preferab le to look to the l e g a l material on which the judge must act i n order to a s c e r t a i n the goals. The instrumental goals are to be found i n the more s p e c i f i c enactments contained i n the statutes and can e a s i l y be placed under the headings of the primary goals. The major d i f f i c u l t y i n d e r i v i n g this c l a s s i f i c a t i o n was i n reducing the huge bulk of l e g i s l a t i o n and areas of l e g a l concern into any form of comprehensive l i s t . C l a s s i f i c a t i o n by subject-matter, for example under t o r t s , contract or equity was found to be clumsy and u n s a t i s f a c t o r y as each category could aim to serve a large v a r i e t y of d i f f e r e n t purposes. I t was more e f f e c t i v e to c l a s s i f y according to the i n d i v i d u a l goals. Various c r i t i c s of goal-oriented theories of law have repeatedly stressed the point that i t i s , i n some circumstances impossible to determine the purpose of a r u l e . T h i s , they say, i l l u s t r a t e s the d i f f i c u l t y found i n - 61 -using goals as part of the law. But i t was discovered that, i n r e a l i t y , this was r a r e l y the case. In going through the statutes and b u i l d i n g up the goal c l a s s i f i c a t i o n we found no ru l e where i t was impossible to discern a goal of some kind. Frequently, there were problems of deciding under which category to place a goal within the c l a s s i f i c a t i o n , but t h i s i s not the same as being unable to f i n d any purpose at a l l . Rules are generally concerned with protecting s p e c i f i e d i n t e r e s t s and i t i s u s u a l l y apparent as to what constitute the p a r t i c u l a r i n t e r e s t s i n a given case. There i s often an overlap of goals between rules but r a r e l y a case where no goal at a l l appears to e x i s t . B a s i c a l l y , t h i s c l a s s i f i c a t i o n of goals was a r r i v e d a t as a r e s u l t of a process of continuous refinement and d e l i m i t a t i o n from a vast amount of m a t e r i a l . The terminology selected to describe the goals i s f a i r l y a r b i t r a r y and merely serves to summarize the concept of the goals which i t embodies. The s i g n i f i c a n t thing to note i s that the c l a s s i f i c a t i o n has been approached from within the structure of the law rather than from without i t . 2. GOAL CLASSIFICATION The goal matrix i s a highly complex system o f rules that are linked to each other i n a cause and e f f e c t r e l a t i o n s h i p . Professor Smith describes t h i s system i n the f o l l o w i n g manneri "Every r u l e may be conceived of as having a purpose or goal. The entire set of r u l e s of which the s p e c i f i c rule i s a member of the i n s t i t u t i o n i t s e l f to which the rules are r e l a t e d also have ends or purposes. The ends of the s p e c i f i c rule w i l l generally be considered as instrumental i n achieving the o v e r a l l ends of the system of r u l e s of which i t forms a part. A cause-effect r e l a t i o n s h i p therefore w i l l be assumed between the content of a s p e c i f i c rule and the ends of the system of r u l e s . " 3 Smith, Legal Obligation, (Toronto :University of Toronto Press 1976). 65. - 62 -Thus we are given the idea of a hierarchy of goals which may be conceived of as being ordered i n sets of goals that serve p a r t i c u l a r o bjectives i n soc i e t y . S p e c i f i c rules and t h e i r content are r e l a t e d to these sets of goals i n that they are instrumental i n ensuring the achievement of the higher goals.of s o c i e t y . These higher goals may be described as the primary or i n t r i n s i c goals of the system. At this stage, then, the most useful method of g i v i n g an o v e r a l l conception of the structure o f the matrix i s by presenting the c l a s s i f i c a t i o n adopted f o r examination. I. LIBERTY A. Communication and free flow of information. B. Maximisation ( f u l f i l m e n t ) of human resources. I I . YffiLL-BEING A. Physical. B. Mental. I I I . RESOURCES (MATERIAL) A. Shared enjoyment ( i n c l u s i v e ) . B. R e s t r i c t e d enjoyment (exclusive). The above form the major categories and t h e i r sub-categories of the primary goals. We s h a l l see l a t e r that these categories can be broken down fu r t h e r into sets of goals. I t i s important to note the absence of any one, ov e r r i d i n g or major goal i n the above. In the analysis i n the f i r s t chapter of t h i s study we saw that several writers have selected a p a r t i c u l a r aim or purpose as being a kind of ultimate objective i n society or desiderata. For the Lasswell • - 63 -McDougal school t h i s goal was that of the attainment of and respect f o r human d i g n i t y . According to Hartzler's theory the core concept of the system i s the i d e a l of j u s t i c e . This he views as being, frequently, a mixture of primary and secondary goals. Thus, i f there are obstacles to the achievement of such primary goals there w i l l be a r e s u l t i n g sense of i n j u s t i c e . However, the basic problem with both of these theories i s that perceptions of both human d i g n i t y and of what constitutes " j u s t i c e " may and do vary s i g n i f i c a n t l y . Such categorisations are extremely imprecise. In f a c t , they have to be i f the in t e n t i o n i s that they should provide an ultimate yardstick by which to evaluate the r e s t of the i n s t i t u t i o n s and aims of the l e g a l system. But the question a r i s e s of whether i t i s necessary at a l l to i n s i s t on such an absolute p r i n c i p l e . Surely t h i s could be subject to the same c r i t i c i s m s that were l e v e l l e d against the Natural Law theory? That i s , that any such "supreme" c r i t e r i o n w i l l be so inherently vague and abstract as to be rendered v i r t u a l l y meaningless. In any event, i t i s doubtful that there i s very much value i n t r y i n g to e s t a b l i s h an ultimate goal as, i n r e a l i t y , there i s not much l i k e l i h o o d that we would ever have to have recourse to i t f o r any p r a c t i c a l guidance. Even i f we d i d , such a goal would probably be unable to a f f o r d any. In a c o n f l i c t s i t u a t i o n or hard case an examination of the primary goal orderings should be s u f f i c i e n t to indicate the r i g h t way to decide a p a r t i c u l a r case. I t i s f e l t that the categories l i s t e d speak f o r themselves and so no transcendent goal has been adopted. An attempt has - 64 -been made to make t h i s c l a s s i f i c a t i o n of goals objective, but the introduction of a major aim f o r the whole l e g a l system must be e s s e n t i a l l y subjective. There seems to be no reason why such a goal could not equally be analogous to Hart's "more modest" aim simply to survive with our s o c i a l framework rather than any "more grandiose" a lt e m a tive s. ^  Another factor to be emphasised concerns the nature of the goals i n the c l a s s i f i c a t i o n . In Chapter I, when discussing the Causal Theory of law, we noted two q u a l i t a t i v e l y d i f f e r e n t categories described as a) and b) - type goals. The goals of the above l i s t are of the b) - type. In other words, they are the kind of goals that are di r e c t e d towards s p e c i f i c , desired ends i n society such as freedom, privacy, p h y s i c a l well-being and other values. On the other hand, the a) - type goals have a rather d i f f e r e n t emphasis. The a) - type goals impinge on the whole spectrum of b) - type goals i n that i t i s desirable that the law should be c l e a r , precise and predictable.. It i s between the two sorts of goals that c o n f l i c t u s u a l l y a r i s e s i n hard cases. Thus, the a) - type goals are not represented- independently i n this p a r t i c u l a r c l a s s i f i c a t i o n . But i t should be remembered, nevertheless, that they are a v i t a l part of the whole structure of lav;. It could be said that they form a fourt h category of primary goals but, f o r the sake of c l a r i t y , they have not been added to the l i s t as presented above. The next stage i n the construction of the matrix i s to obtain sets of primary goals under the main categories set out above. These are 4. HART, (1961) at 188 - 189. - 65 -postulated as f o l l o w s : -I LIBERTY A. Communication and free flow of information. i ) Freedom of the person, i i ) Freedom of speech (expression), i i i ) Freedom of assembly and a s s o c i a t i o n , i v ) The r i g h t to equal treatment, y) The r i g h t to privacy, v i ) Protection of community peace and s e c u r i t y , v i i ) Procedural f a i r n e s s , v i i i ) The r i g h t of access to information of p u b l i c concern. B. Maximisation ( f u l f i l m e n t ) of human resources. The r i g h t to education. The establishment o f f a c i l i t i e s f o r trade, p r o f e s s i o n a l and v o c a t i o n a l t r a i n i n g . The r i g h t to work. Family r e l a t i o n s . Attainment of c e r t a i n moral objectives. The j u s t treatment of those confined or detained by the state, v i i ) The r e l i e f of poverty. II WELL-BEING A. P h y s i c a l . i ) Safety and the preservation of l i f e , i i ) Provision of health s e r v i c e s , i i i ) Public health c o n t r o l s . B. Mental. i ) Immunity of the w i l l from coercion, i i ) The provision of s p e c i a l and treatment f o r the mentally i l l . i i i ) C e r t a i n protection f o r the f e e l i n g s and emotions, i v ) Giving e f f e c t to the wishes of i n d i v i d u a l s . - 66 -I I I RESOURCES (MATERIAL). A. Shared enjoyment ( i n c l u s i v e ) . i ) Conservation of r i v e r s , f o r e s t s , areas of na t u r a l "beauty and of mineral resources, o i l and gas. . i i ) The achievement of a d i s t r i b u t i o n of the wealth in s o c i e t y . i i i ) Control by the state of c e r t a i n important i n d u s t r i e s , (this i s linked to ( i i ) above), i v ) The regulation of the use and co n t r o l of the seas and outer space, v) Protection of l i v e s t o c k , a g r i c u l t u r e and the •f i s h e r i e s . v i ) The reg u l a t i o n and c o n t r o l of land and i t s use. v i i ) A general i n t e r e s t i n broad aims of progress and improvement of the q u a l i t y of l i f e i n s o c i e t y . B. R e s t r i c t e d enjoyment (exclusive). i ) P r o t e c t i o n of private wealth, i i ) Freedom to make agreements and deal with property, i i i ) Regulation and promotion of trade and commerce. 5 ' Some explanation should be given of the c l a s s i f i c a t i o n of resources adopted i n the t h i r d category. In regard to the material resources that are available to us i n soci e t y , we have the a l t e r n a t i v e s of allowing an exclusive or i n c l u s i v e use of those resources. This terminology has been used i n r e l a t i o n to the larger-scale issues of the domain of the seas and outer-space but i s a convenient method to adopt f o r t h i s c l a s s i f i c a t i o n . When a p a r t i c u l a r resource, such as o i l or na t u r a l gas, i s one that i s of l i m i t e d duration or supply then there i s an absolute need to d e l i m i t the e x p l o i t a t i o n of i t i n order to ensure that the b e n e f i t or advantages accruing from i t may be ava i l a b l e f o r the longest possible time. 5. I t should be noted that, at th i s stage, the goals have not been placed i n any kind of ordering with regard to importance. 6. For an exposition of the a p p l i c a t i o n and use of t h i s terminology see, McDougal, Lasswell, l / l a s i c , Smith, The Enjoyment and A c q u i s i t i o n of Resources i n Outer Space (1963) I I I (5) U Penn. .L.R.I. - 67 -S i m i l a r l y , i n the example of areas of great natural beauty, we would wish to preserve these from unwarranted destruction f o r the future enjoyment of as many people as possible. By contrast, i n c e r t a i n areas of resources we would wish to f a c i l i t a t e and exclusive, r e s t r i c t e d use. By t h i s i s meant that r i g h t s over private property, r e a l and personal, and the freedom to deal with that property should be assured. A d i s t i n c t i o n can be made between sharable and non-sharable resources and has been described as f o l l o w s : -"By a sharable resource we mean one v/ith respect to which, within a given context, the greatest production and widest d i s t r i b u t i o n of values can be achieved through i n c l u s i v e use, and by a non-sharable resource one with respect to which t h i s same outcome can best be achieved by use that i s e x c l u s i v e . " 7« Another useful d i s t i n c t i o n has been made between resources that are Q renewable and the kind that are non-renewable. In the i n t e r n a t i o n a l sphere i t i s c l e a r that the oceans, air-space and i n t e r n a t i o n a l waterways must be given a high degree of in c l u s i v e use and this can be p a r a l l e l e d i n the domestic f i e l d i n many countries. In the United Kingdom, f o r example, there i s an increasing tendency f o r the Government to i n h i b i t the private use and disposal of land and private c o n t r o l of industry. Ine v i t a b l y , t h i s i s r e f l e c t e d i n the aims of the law. I t i s a c l e a r goal of the law that, as f a r as the kind of resources that are v i t a l to a community are concerned, no i n d i v i d u a l or group of in d i v i d u a l s should be allowed to deprive the community of the use of those resources. 7. ID. at 547 8. ID. at 547 - 68 -The other two categories of primary goals need no more explanation at t h i s stage i n terms of the values they seek to protect. I t i s probably preferable to keep these categories to the minimum number possible needed to cover a l l conceivable goals. A great p r o l i f e r a t i o n of c l a s s i f i c a t i o n s might diminish the usefulness of the matrix and r e s u l t i n a greater degree of confusion. Another fundamental aspect of any system of lav/ must be that of punishment or sanction and t h i s i s r e f l e c t e d i n the goals of the law. But i t cannot be said that such an aim i s an independent goal per se; the sanction-mechanism i s something that forms an adjunct to the various (applicable) r u l e s and i s triggered when those r u l e s are contravened. For instance, one of the most important goals of the law i s the preservation of l i f e and so murder i s p l a i n l y contrary to achieving t h i s . Thus, the criminal law imposes a sanction upon those who k i l l . In other words, the sanction aspect of the law against murder i s instrumental to achieving the main goal of preserving l i f e . So, i t i s preferable to regard this aspect of the law as part of the instrumental goals that we s h a l l discuss l a t e r . The sanction-mechanism of the law i s a highly complex one and functions throughout the whole system and not simply v i a the c r i m i n a l law. In the law of to r t s and i n the law of contract i t i s embodied in the concept of compensation and i n the forms of damages. I t i s possible to discern three main objectives for imposing sanctions by agency of the law: deterrence, which merely aims at exacting compliance to law, compensation and r e t r i b u t i o n . - 69 -Sanction i s integrated into the goal matrix of the law and functions i n r e l a t i o n to rules i n the manner described i n the Causal Theory that we examined i n Chapter I . By th i s we mean that the sanction i s applied unless one o f the four exceptions i s found to be applicable - that i s , where the causal chain has broken down such that we cannot place blame on the agent of an a c t i o n . I t i s not the purpose of this paper to examine punishment and sanction i n depth; the point to note i s that t h i s mechanism i s possibly best described as a part of the instrumental goals of law as the most accurate i n d i c a t o r as to how i t operates within the system. Once we have established a l i s t of primary goals of the system we can than take the next step and set out a catalogue of instrumental goals, or rather instrumental 'rules, the ends of which are dire c t e d towards achieving the o v e r a l l aims of the system. In this s e c t i o n explanations, where necessary, of the c l a s s i f i c a t i o n adopted w i l l be made as the l i s t i s presented. Primary Goal - LIBERTY A. Communication and free flow of information. The goals i n th i s s e c t i o n are c h i e f l y concerned ?ri.th i n d i v i d u a l l i b e r t i e s . In England, because of the supremacy of the l e g i s l a t u r e , there i s no entrenched B i l l of Rights guaranteeing fundamental " r i g h t s " as such. Consequently, the l i b e r t i e s of the i n d i v i d u a l are l a r g e l y r e s i d u a l . As one writer put i t ; "To define the content of l i b e r t y one has merely to subtract from i t s t o t a l i t y the sum of the l e g a l r e s t r a i n t s to which i t i s subject." 9 9. S.A. de Smith, C o n s t i t u t i o n a l and Administrative Law (London: Butterworths, 1971) 440. - 70 -At f i r s t glance, i t would seem that the scope of i n d i v i d u a l freedom under th i s d e f i n i t i o n i s somewhat l i m i t e d , however, as 0 . Hood P h i l l i p s s t a t e s , the i n d i v i d u a l does have safeguards to protect his l i b e r t i e s : "Bo l e g a l system can allow absolute r i g h t s . There must be a balance - a compromise - between the i n t e r e s t s of an i n d i v i d u a l and the i n t e r e s t s of other i n d i v i d u a l s and s o c i e t y as a whole. The difference between l i b e r t y and licence i s c r u c i a l . The strength of English la?/ l i e s i n i t s provision of adequate remedies f o r most infringements of legitimate i n t e r e s t s , notably habeas corpus, i n j u n c t i o n and damages." 10 Instrumental Goals (The primary goal w i l l be restated f i r s t l y , followed by the p a r t i c u l a r goals instrumental to i t ) . ( i ) Freedom of the person. This i s well summarized by Dicey as follows:-"The r i g h t to personal l i b e r t y as understood i n England means i n substance a person's r i g h t not to be subjected to imprisonment, a r r e s t or other p h y s i c a l coercion i n any manner that does not admit of l e g a l j u s t i f i c a t i o n . " 11 The " l e g a l j u s t i f i c a t i o n " f o r depriving a person of h i s l i b e r t y therefore, must be i n terms of other goals of the system that are of greater importance to society i n the relevant circumstances and thus may take p r i o r i t y over l i b e r t y . So, i f we r e f e r to l i b e r t y as b"*" and any other competing goal 2 1 2 as b , then, u s u a l l y the ordering w i l l be b_ . However, i f b happens b 2 to be any of the following l i s t a l e g a l j u s t i f i c a t i o n f o r deprivation of 10. O'.Hood P h i l l i p s , C o n s t i t u t i o n a l and Administrative Law (5th. Edn. London: Sweet & Maxwell, 1973) 397. 11. Dicey, The Law of the C o n s t i t u t i o n (10th. Edn. E.C.S. Wade Londons MacMillan, 1975 ) 207 - 208. l i b e r t y e x i s t s and the ordering becomes b_ . The major s p e c i f i e d 12 grounds are as f o l l o w s : i n c r i m i n a l law, unfitness to plead; c r i m i n a l conviction, detention i n pursuance of a court order, or to bring an offender before a court, or on reasonable suspicion of having committed or being about to commit a crime, custody f o r care and protection, i s o l a t i o n to prevent the spread of disease, detention of i l l e g a l immigrants, detention f o r drunkenness, drug addiction or vagrancy. However, even when persons are detained they are given c e r t a i n protections by the law i n the form of a number of rules and presumptions. For example, persons must be brought before a court without undue delay and are e n t i t l e d to b a i l . They must be presumed innocent u n t i l proven g u i l t y . They must be informed o f the charge and must not be subjected to violence or degrading treatment. Thus, although a person may, j u s t l y , lose h i s l i b e r t y , t h i s deprivation cannot be absolute and he i s e n t i t l e d to "freedoms" of a c e r t a i n character. In turn, i f a person i s wrongfully detained he has c e r t a i n remedies that include seeking damages f o r malicious prosecution or f a l s e imprisonment, applying f o r a writ of habeas corpus, appealing the conviction or sentence or, i n appropriate cases seeking an order o f c e r t i o r a r i of p r o h i b i t i o n . ( i i ) Freedom of speech (expression). a) Again, t h i s freedom i s r e s i d u a l and the l i m i t a t i o n s that do e x i s t are generally i n r e l a t i o n to protection of public welfare and preservation of p u b l i c order. B a s i c a l l y , i t i s the freedom 12. For an amplified discussion of these grounds see, § . A . de Smith, C o n s t i t u t i o n a l and Administrative Law (London: Butterworths, 1971) 444 - 72 -to hold any opinions about r e l i g i o n , p o l i t i c s , the government or whatever, without interference. I t also protects the free flow of information and communication v i a the media. Nevertheless, freedom of b e l i e f does not encompass an un r e s t r i c t e d freedom of practice i n r e l a t i o n to any b e l i e f held. I t i s one thing to believe i n a doctrine that may require human s a c r i f i c e , but quite another to be able to carry out such a r i t u a l unhindered. Once again, the ordering of goals can i n v e r t i n c e r t a i n circumstances -namely, those i n v o l v i n g matters such as treason, s e d i t i o n , o f f i c i a l 13 secrets, defamation, obscene pub l i c a t i o n s , blasphemy, incitement to any criminal offence, provoking a breach of the peace and incitement to r a c i a l hatred. b) L i b e r t y of the Press: In the United Kingdom the freedom of the press to publish material i s r e s t r i c t e d by the law of defamation which imposes c e r t a i n conditions. To e s t a b l i s h a case of defamation the p l a i n t i f f must prove three things; a) The words must be defamatory, b) they must r e f e r to the p l a i n t i f f , and c) they must be "maliciously" published. However, there are c e r t a i n s p e c i a l i s e d defences to an a c t i o n that could be asserted by a publisher. These are, a) j u s t i f i c a t i o n (or truth) b) f a i r comment, and c) p r i v i l e g e , (absolute or q u a l i f i e d ) . ^ 13. I t should be noted that blasphemy, as an offence, i s only l i k e l y to r e s u l t i n deprivation of a person's freedom of speech where i t i s l i k e l y to cause a breach of the peace. 14. For a fu r t h e r discussion of the operation of the law of defamation see, W i n f i e l d & Solowicz on Tort (10th. Edn. by W.V.H. Rogers, London: Sweet & Maxwell, 1975 J at 240 - 297• - 73 -Apart from such remedies as may he sought by private i n d i v i d u a l s , a form of regulation of the press i s contained i n the system of "D" notices. These are c o n f i d e n t i a l l e t t e r s issued by government departments to newspapers and other publications requesting that material not be published because i t would be detrimental to nat i o n a l defence or sec u r i t y . 15 In t h i s area, the recent case of A.G. v Jonathan Cape Ltd. i s of i n t e r e s t . In that case the Attorney General wished to prevent the executors of the late Richard Crossman and the Sunday Times from proceeding with the p u b l i c a t i o n and s e r i a l i s a t i o n of volume I of his D i a r i e s of a Cabinet Minister. The issues involved were b a s i c a l l y secrecy of government proceedings and the freedom of the press. Although i t has been suggested that the decision favoured the former, one commentator believes that, on the contrary, i t "introduces new safeguards f o r the belief i t of the defendants i n breach of confidence l i t i g a t i o n " . 1 ^ Lord Widgery stated: "In the present action against the l i t e r a r y executors, the Attorney-General asks f o r a perpetual injunction to r e s t r a i n f u r t h e r p u b l i c a t i o n of the D i a r i e s i n whole or i n part. I am f a r from convinced that he has made out a case that the public i n t e r e s t requires such a Draconian remedy when due regard i s had to other p u b l i c i n t e r e s t s , such as the freedom of speech". 17 15.. (1975) 3 W.L.R. 6 0 6 . , and (1975) 3 A l l E.R. 484. 16. See, M.W. Bryan, The Crossman Diaries - Developments i n the  Law of Breach of Confidence (1976) 92 L.Q.R. 180., f o r a f u l l discussion of the case. 17. (1975) 3 W.L.R. at 615. I - 7 4 -Symbolically, we may represent the r e s u l t a n t ordering thus, b 1 - government secrecy and c o n f i d e n t i a l i t y of proceedings. 2 b - freedom of the press. 1 2 (note: both b and b have p u b l i c i n t e r e s t aspects.) 2 After the Crossman case - b_ b 1 ( i i i ) Freedom of assembly and a s s o c i a t i o n . Again, these l i b e r t i e s are r e s i d u a l and c o n s i s t , i n the main, of: -a) Taking part i n public meetings, processions and demons t r a t i ons; and, b) Forming and belonging to p o l i t i c a l p a r t i e s , trade unions, s o c i e t i e s and other organizations. The freedom to assemble means, i n e f f e c t , that there i s no law forbidding people to assemble provided they keep within the l i m i t s imposed by the law. S i m i l a r l y , there i s a l i b e r t y to j o i n an a s s o c i a t i o n provided that i t i s not a c r i m i n a l conspiracy or c i v i l conspiracy and provided that the organization i s not constituted to usurp the functions of police or armed forces or f o r the purpose of using force f o r p o l i t i c a l o b j e c t i v e s . Relevant enactments i n regard to these goals are, for example, the Public Order Acts and the Emergency Powers Acts. ( i v ) The r i g h t to equal treatment. E q u a l i t y i s c l e a r l y a highly important goal within a l e g a l system and, i n E n g l i s h law, there are a number of statutes d i r e c t e d a t achieving equal - 75 -treatment of individuals in relevantly similar circumstances. These are:-a) The Sex Discrimination Act 1 9 7 5 ,which established a special Commission to supervise the whole area of equal opportunities. "Discrimination" is defined as being against both sexes and covers such areas as discrimination in relation to jobs, the provision of goods and services and advertising. b) The Iqual Pay Act 1970 > "^aims to eliminate discrimination on the grounds of sex in remuneration and other terms of employment. 20 c) The Race Relations Acts 1965 and 1968, in essence seek to deal with discrimination on the grounds of race, colour, ethnic origin or nationality. As a matter of policy this is unlawful and may operate to restrict certain activities. An incident occurred in England where an individual was ordered to remove a sign, situated on his property and advertising that property for sale but which specified that i t would be sold only to white persons. d) Legislation against genocide. e) An action exists in tort for deprivation of access to public office. f) Legislation now exists that aims to equalise the rights of 21 illegitimate children with those of legitimate children. 18. The Sex Discrimination Act, 1975> C.65. 19. The Equal Pay Act, 1970, C . 4 I . 20. The Race Relations Act, 1965, C.73. The Race Relations Act, 1968, C.71. 21. See in Particular, The Family Law Reform Act, 1969, C.46. ss. 14 - 19. - 76 -It i s i n t e r e s t i n g to note that the majority of 'the instrumental goals served by the l e g i s l a t i o n above aim to eliminate i n e q u a l i t i e s based upon b i o l o g i c a l d i f f e r e n c e s such as sex, colour or incident of b i r t h . (v) The r i g h t of privacy. As we noted i n r e l a t i o n to freedom of the press, there i s only a l i m i t e d r i g h t of privacy under E n g l i s h lav/. Remedies are provided i f the case i s covered by the tort s of defamation, trespass, nuisance or passing o f f , but not so f o r the person whose a c t i v i t i e s a t t r a c t adverse p u b l i c i t y or whose conversation are "tapped". a) However, l i m i t a t i o n s are imposed on the powers of entry' and search. Modern statutes give this power to many c i v i l servants, l o c a l government o f f i c e r s and o f f i c i a l s of public corporations as, f o r example, inspectors of food and drugs, public health and f o r the gas and e l e c t r i c i t y a u t h o r i t i e s . However, there seems to be l i t t l e consistency i n the type of persons authorised, the nature of the authorising document and kinds of notice that must be given. The statute w i l l usually provide that the o f f i c i a l must produce some kind o f written a u t h o r i t y but these are by no means c l e a r l y defined. Police powers of a r r e s t are l a r g e l y regulated i n the Criminal no Law Act 1967. There i s a f e e l i n g that, nowadays, the courts 22. The Criminal Law Act, 1967, C.58 - 77 -may give undue weight to the public i n t e r e s t i n crime detection to the detriment of claims of personal privacy. Also, i f an i n d i v i d u a l chooses not to co-operate with the p o l i c e there i s a danger to personal l i b e r t y i f the p o l i c e are given too wide powers of coercion. b) Posts and telecommunications, i n order to tap telephone conversations the relevant authority must obtain a warrant from the Home Secretary. The circumstances i n which they may do this and f o r what purposes are unclear. I f a person's proprietary r i g h t s are not i n f r i n g e d he has very l i t t l e basis f o r a remedy here. This is probably an area where the law i s seriously d e f i c i e n t i n f u l f i l l i n g the primary goal of l i b e r t y , ( i n E n g l i s h law at l e a s t ) , and i n t h i s sense, we may f i n d an anomaly i n the law. Possibly, the orderings must change i n the future i n order to preserve the i n t e g r i t y of "the primary goal. Likewise, the i n v i o l a b i l i t y of the post can be breached by a warrant authorising i n t e r c e p t i o n of the mail. c) Protection of p h y s i c a l privacy or i n t e g r i t y . This goal seeks to protect the i n d i v i d u a l ' s r i g h t to determine what happens to h i s own body and i s seen i n the requirements that 23 consents be obtained f o r s u r g i c a l operations, blood-tests, 25. See, Family Law Reform Act, 1969, C . 4 6 , ss. 2 0 ( i ) , 2 l ( i ) and 2 3 ( i ) . s . 2 l ( i ) requires that a blood-test ( i n r e l a t i o n to e s t a b l i s h i n g p a t e r n i t y ) , s h a l l not be taken without consent. But s . 2 3 ( i ) provides that where a person refuses a blood sample, "...the court may draw such inferences, i f any, from that f a c t , as appear proper i n the circumstances." - 78 -blood-transfusions and s i m i l a r matters. The r i g h t s to securing abortions and euthanasia are ones that are subject to much controversy today and, consequently, goal orderings i n this area w i l l be e s p e c i a l l y subject to f l u c t u a t i o n . d) The r i g h t to honour and reputation. In this area the law affords a remedy i n defamation. A recent development i n the law i s seen i n the R e h a b i l i t a t i o n of Offenders Act 1974 which e f f e c t s an amendment to the law of defamation. This Act provides that a f t e r a c e r t a i n lapse o f time, convictions f o r criminal offences are to be regarded as "spent" and the offender regarded as a " r e h a b i l i t a t e d person". I t aims to protect offenders who have reformed from subsequent disclosure o f t h e i r records. ( v i ) Protection o f community peace and s e c u r i t y . a) The Police Act 19&4 regulates police powers and procedures. b) P r o v i s i o n i s u s u a l l y made f o r the invocation of c e r t a i n emergency powers to deal with major c r i s e s or d i s a s t e r s . c) L e g i s l a t i o n r e l a t i n g to defence and the armed forces. d) O f f i c i a l secrets. e) There i s increased emphasis on measures to deal with t e r r o r i s t a c t i v i t y . ( v i i ) Procedural f a i r n e s s . This category aims at securing an optimum of e f f i c i e n c y i n procedural matters, for example, by the use o f experts i n tribunals and seeks 24. The R e h a b i l i t a t i o n of Offenders Act, 1974, C .53. 25. The P o l i c e Act, 1964, C .48. - 79 -to ensure f a i r treatment f o r the i n d i v i d u a l . a) The p r o v i s i o n of tribunals enables c e r t a i n kinds of work to be d e a l t with more e f f e c t i v e l y as these have the advantages of a f f o r d i n g expert knowledge, cheapness, speed (which can avoid undue hardship to the p a r t i e s ) , f l e x i b i l i t y (as they are not hampered by the doctrine of binding precedent) and i n f o r m a l i t y . b) Control of p u b l i c a u t h o r i t i e s and o f f i c i a l s i s e f f e c t e d by a number of measures: i ) The u l t r a v i r e s r u l e - t h i s provides that the acts of a competent authority must f a l l w ithin the powers conferred upon i t by the l e g i s l a t u r e . i i ) Abuse of power - a power that i s d i s c r e t i o n a r y i s abused or misused i f i t i s exercised f o r an unauthorised purpose i f relevant considerations are disregarded or i r r e l e v a n t ones taken into account. i i i ) The unreasonable use of power i s pr o h i b i t e d . i v ) P r i n c i p l e s of Natural J u s t i c e - whenever government o f f i c e r s act j u d i c i a l l y they are expected to observe the p r i n c i p l e s of natural j u s t i c e . These p r i n c i p l e s are c h i e f l y , that a man may not be judge i n his own cause and that of audi alteram partem. - 80 -v) The prerogative writs - these give the i n d i v i d u a l remedies f o r c e r t a i n i n j u s t i c e s he may f e e l that he has suffered. C e r t i o r a r i i s the most important of these and i s an order to an i n f e r i o r court to remove the record of the proceedings to a higher court f o r review. This may he done on the grounds of a want or excess of j u r i s d i c t i o n , a denial of natural j u s t i c e or an erro r on the face of the record. A writ of p r o h i b i t i o n may be given to prevent a court from exceeding i t s j u r i s d i c t i o n or i n f r i n g i n g the r u l e s of natural j u s t i c e . F i n a l l y , mandamus may be issued to compel any person or body of persons to carry out some p u b l i c duty. v i ) The Crown Proceedings Act 1947 gives a r i g h t to sue the Crown. v i i i ) The Parliamentary Commissioner Act has been i n s t i t u t e d which sets up an ombudsman who w i l l investigate complaints r e l a t i n g to the f a i l u r e of government agencies to perform t h e i r administrative functions. B. Maximisation ( f u l f i l m e n t ) of human resources, ( i ) The r i g h t to education. The law aims to ensure that every person obtains a t l e a s t a minimum of 27 education and therefore provides f o r compulsory schooling. Special 26. The Crown Proceedings Act, 1947, C.44« 27. The Education Act, 1944, 788 Geo. 6. C.31 - 81 -p r o v i s i o n i s made f o r the c h r o n i c a l l y sick and f o r disabled persons, including the deaf and b l i n d and a u t i s t i c c h i l d r e n . ( i i ) To f a c i l i t a t e trade, p r o f e s sional and vocational t r a i n i n g . This i s u s u a l l y done by c e r t a i n government agencies such as the Employment Services Agency and others. ( i i i ) The r i g h t to work. Today, there i s a vast body of l e g i s l a t i o n covering the f i e l d of employment and r e l a t i n g to work conditions^ hours, rates of pay and dealing with the 28 membership of trade unions. ( i v ) Family r e l a t i o n s . This i s an area that i s very much subject to the p r e v a i l i n g s o c i a l and moral climate and the goals that i t seeks to achieve are a f f e c t e d accordingly. Generally, the following categorisations can be made; a) marriage; b) property and capacity; c) matrimonial causes; d) maintenance; e) c h i l d r e n . a) With regard to marriage, the law establishes c e r t a i n formal requirements f o r a v a l i d marriage. For example, age l i m i t s apply and there are conditions p r o h i b i t i n g marriage between person of a c e r t a i n r e l a t i o n s h i p . Also, c e r t a i n tax advantages are of f e r e d to married persons. In many respects, however, the law i s g i v i n g greater recognition and status to common law marriages. 28. The Trade Union and Labour Relations Act, 1974> C .52. The Employment Protection Act, 1974» C .71. The Contracts of Employment Act, 1972, C .53. The Redundancy Payments Act, 1965> C .62. - 82 -b) The current trend is towards greater property rights for the wife who does not have a beneficial interest in property. The idea is now developing that, so called "family assets" are to be distinguished from the ordinary law relating to property. Also, actions for breach of promise have been abolished and provision 29 has been made regarding gifts between engaged persons. c) Under the Matrimonial Causes Act 1 9 7 3 ^ the criterion for divorce is now that there should be some evidence of the irretrievable breakdown of the marriage. d) The current emphasis is that maintenance provisions should apply equally to both husband and wife. e) There is an increasing emphasis on giving consideration to the welfare of the child and on taking into account the feelings of 71 32 the child.- v.CThe rights of parents over children are to be equal. Children are always to be subject to special protection by the law and, for instance, their employment is limited and contracts made by children are void or voidable. 29. See, The Law Reform (Miscellaneous Provisions) Act, 1970* C.33. 30. The Matrimonial Causes Act, 1973, C.18. 31. The Children Act, 1975, C.72. S.3. 32. The Guardianship Act, 1973, C.29 S.l (l). - 83 -(v) Moral objectives. The goals that f a l l under this heading are the ones whose ordering i s l i k e l y to be the most uncertain and f l u i d . We have seen great debate as to the extent to which law should be used to enforce morality, ranging 33 from M i l l s 1 view that there can be no j u s t i f i c a t i o n f o r this at a l l to Lord Devlin's idea that a c e r t a i n moral awareness i s necessary to give 34 cohesion to s o c i e t y . C l e a r l y , then, i t w i l l be very d i f f i c u l t to d i s c e r n the precise r o l e of laws with moral ob j e c t i v e s . Some examples of laws of t h i s nature are those dealing with pornography, p r o s t i t u t i o n and gambling. In the l a t t e r case gaming contracts are void and no a c t i o n can be maintained on such. An instance of s o c i e t a l values changing and having an *impact within the goals of the law i s the repeal of the laws against homosexuality. In the V/olfenden Report, i n which the questions of homosexuality and p r o s t i t u t i o n were considered, the Committee made some i n t e r e s t i n g statements about the purpose of the law as they saw i t that are worth reproducing. On the function of the c r i m i n a l law i n t h i s area they say: "In this f i e l d , i t s function, as we see i t , i s to preserve p u b l i c order and decency, to protect the c i t i z e n from what i s offensive or i n j u r i o u s , and to provide s u f f i c i e n t safeguards against e x p l o i t a t i o n or corruption of others, p a r t i c u l a r l y those who are s p e c i a l l y vulnerable because they are young, weak i n body or mind, inexperienced, or i n a state of s p e c i a l p h y s i c a l , o f f i c i a l or economic dependence. I t i s not, i n our view, the function of the law to intervene i n the private l i v e s of c i t i z e n s , or to seek to enforce any p a r t i c u l a r pattern of behaviour, furt h e r than i s necessary to carry out the purposes we have ou t l i n e d . " 35 33. J . S. M i l l , On Liberty (Everymans' University L i b r a r y , 1972) 34. P a t r i c k Devlin, The Enforcement of Morals (Oxford: Oxford U n i v e r s i t y Press, 1965). 35« Para., 13. - 84 -The Committee recommended that homosexual behaviour between consenting adults i n private should not be an offence and based this view upon:-the importance which society and the law ought to give to i n d i v i d u a l freedom of choice and a c t i o n i n matters of private morality. Unless a deliberate attempt i s to be made by so c i e t y , a c t i n g through the agency of law, to equate the sphere of crime with that of s i n , there must remain a realm of private morality and immorality which i s , i n b r i e f and crude terms, not the law's business. To say t h i s is not to condone or encourage pr i v a t e immorality." 36 These passages very c l e a r l y bring out a s i t u a t i o n where the goal orderings may be said to have adjusted within the matrix. ( v i ) The treatment of offenders. C l e a r l y , there w i l l be some e f f e c t on those who are imprisoned by the very nature of the constraints placed upon t h e i r l i b e r t y . The law seeks to minimise the negative e f f e c t s o f imprisonment by c o n t r o l l i n g p r ison conditions. Recently, new powers have been conferred upon the courts 37 f o r dealing with offenders. There i s a new emphasis on reparation of the offender and on non-custodial and semi-custodial p e n a l t i e s . Special p r o v i s i o n i s made f o r young offenders i n the form of b o r s t a l s and remand centres. ( v i i ) The r e l i e f o f poverty. This i s done l a r g e l y by a ser i e s of s o c i a l s e c u r i t y measures that provide f o r various benefits and subsidies that aim to ensure a minimum standard of l i v i n g and to a l l e v i a t e poverty. 36. Para., 62. 37. The Criminal Ju s t i c e Act, 1967, C.80. - 85 -Primary Goal - WELL-BEING A. P h y s i c a l . ( i ) Safety and the preservation o f l i f e . This must c l e a r l y he a highly important goal f o r any l e g a l system and i s served i n a numher of ways. a) By the cri m i n a l law which deals with assaults, b a t t e r i e s , murder, manslaughter, rape and grievous bodily harm. b) By the law of t o r t s which covers b a t t e r i e s and i n j u r i e s caused by accidents. B a s i c a l l y , i t aims to give the v i c t i m some compensation f o r harm suffered or to prevent the r e p e t i t i o n or continuance of such harm. \ 39 c) The Road T r a f f i c Act 1972"^ deals with t r a f f i c offences and requirements f o r d r i v e r s . This l e g i s l a t i o n aims to make the pr a c t i c e of d r i v i n g as safe as possible by an insistence upon compulsory t h i r d party insurance, safety requirements f o r ve h i c l e s and other measures. At the moment, i n England, there i s no compulsion to wear seat-belts by la?/ although people are strongly encouraged to do s o . ^ 38. The victims of the drug thalidomide used the doctrine of "negligence to attempt to obtain redress f o r t h e i r r e s u l t a n t d i s a b i l i t i e s . 39. The Road T r a f f i c Act, 1972, C .20. 40. Note: the case of Froom v. Butcher (1975) 3. W.L.R. 520, on the seat-belt issue. ' This case w i l l be discussed i n more d e t a i l i n Chapter I I I . See Discussion P.145 INFRA. - 86 -d) People who keep dangerous animals must be l i a b l e f or them. Animals that are kept f o r protection must be c o n t r o l l e d and must not constitute an undue hazard to p e o p l e . ^ e) Dangerous drugs are c o n t r o l l e d and penalties are imposed f o r t h e i r improper use. R e s t r i c t i o n s are also imposed on the sale and consumption of al c o h o l . f ) In England, abortions are permitted i f the e x i s t i n g pregnancy involves a r i s k to the l i f e of the woman or of injury to the physic a l or mental hea l t h of the woman or of any e x i s t i n g c h i l d r e n , or i f there i s a substantion r i s k that, i f the c h i l d 42 were born, i t would be se r i o u s l y abnormal or handicapped. This i s one of the most h o t l y debated issues i n society today with no cl e a r consensus on the question. Consequently, i t i s an area where the aim of the law i s not too cl e a r c u r r e n t l y . Analogously, the issue of euthanasia i s subject to the same kin d of indeterminacy. With modern medical techniques enabling doctors to keep patients " a l i v e " despite grave i n j u r i e s , pressing issues can now a r i s e over whether a person should be so treated, e s p e c i a l l y i f t h e i r prognosis f o r recovery i s hopeless. In the recent case of Karen Quinlan that arose i n the United States, 43 this very question arose. The father of Karen Quinlan applied to have the l i f e - s u p p o r t system that was keeping his daughter a l i v e 41. The Guard Dogs Act, 1975, C .50. . 42. The Abortion Act, 1967, C .87. 43. 70 N.J., 355 A 2d 660 - 70. See als o , University Publications of America Inc., In The Matter o f Karen Quinlan Vols. I and I I (University Publications of America Inc., 1975 and 1976. - 87 -disconnected. I t was accepted that the g i r l was t e c h n i c a l l y a l i v e both by l e g a l and medical d e f i n i t i o n , but she was i n an i r r e v e r s i b l e coma. The r i g h t of privacy i n the sense of the " r i g h t " t o die without interference by state agencies, (physical privacy) was a primary concern i n this case and the court f e l t that, could the g i r l appreciate her own s i t u a t i o n , she would choose to die n a t u r a l l y rather than continue to vegetate for a few months more. The issue i s summarized, as follows, by Hughes J . and very c l e a r l y brings out the nature of the dilemma faced by the court i n t h i s s i t u a t i o n . "The claimed i n t e r e s t s of the State i n this case are e s s e n t i a l l y the preservation and s a n c t i t y of human l i f e and defence to the r i g h t of the physician to administer medical treatment according to h i s best judgement. In th i s case the doctors say that removing Karen from the r e s p i r a t o r w i l l c o n f l i c t with t h e i r p r o f e s s i o n al judgement. The p l a i n t i f f answers that Karen's present treatment serves only a maintenance f u n c t i o n ; that the r e s p i r a t o r cannot cure or improve her condition but at best can only prolong her i n e v i t a b l e slow d e t e r i o r a t i o n and death: and that the in t e r e s t s of the pa t i e n t , as seen by her surrogate, the guardian, must be evaluated by the court as predominant, even i n the face of an option contra by the present attending physicians. P l a i n t i f f ' s d i s t i n c t i o n i s s i g n i f i c a n t . The nature of Karen's care and the r e a l i s t i c chances of her recovery are quite unlike those of the patients discussed i n many of the cases where treatments were ordered. In many of those cases the medical procedure required (usually a transfusion) constituted a minimal bodily invasion and the chances of recovery and return to functioning l i f e were very good. We think that the State's i n t e r e s t contra weakens and the i n d i v i d u a l ' s r i g h t to privacy grows as the degree of bodily invasion increases and the prognosis dims. Ultimately there comes a point at which the in d i v i d u a l ' s r i g h t s overcome the State i n t e r e s t . " 44 44. ID. Vol I I at 305. - 88 -They thus concluded that, were Karen able to choose to die, the law should support her choice. In connection with t h i s exercise of r i g h t , the court decided there would be no c r i m i n a l l i a b i l i t y f o r such a c c e l e r a t i o n of death. Termination of treatment pursuant to a r i g h t of privacy i s lawful and does not carry l i a b i l i t y . P l a i n l y , the complexity of the issues inherent i n questions of t h i s sort are going to make the orderings here very unstable. g) There i s a mass of l e g i s l a t i o n dealing with safety requirements i n a l l f i e l d s of l i f e . A number of statutes deal with s a f e t y conditions and standards at f a c t o r i e s , o f f i c e s and shops and on construction and engineering s i t e s . Minimum standards of safety are imposed on manufactured goods. In recent years there has been an introduction of l e g i s l a t i o n that aims at compelling those involved i n the 45 construction of buildings to do t h e i r work properly. There has also been an extension i n the doctrine of occupier's l i a b i l i t y a f t e r a recent House of lords d e c i s i o n . ( i i ) The p r o v i s i o n of health and rrelfare services. This i s a c l e a r goal of the law i n r e l a t i o n to the general well-being of the community. In England, the health services are state run and provide the whole range o f medical s e r v i c e s . In a d d i t i o n , various b e n e f i t s and welfare schemes are a v a i l a b l e . 45. The Defective Premises Act, 1972. C . J 5 . 46. See, Herrington v B.R.B. (1971) 2 W.L.R. 477. - 89 -( i i i ) Public health l e g i s l a t i o n . (Public "health" i s used i n a broader sense here). L e g i s l a t i o n i n t h i s area aims to c o n t r o l p o l l u t i o n , disease, and ensure what may be described as a c e r t a i n standard of general community health. a) There are numerous Acts that deal with c e r t a i n statutory "nuisances", for example, a r i s i n g from i n s a n i t a r y dwellings, the keeping of animals and unhygienic trade premises. b) Clean a i r regulations, noise c o n t r o l s , p r o v i s i o n f o r parks and r e c r e a t i o n areas and f o r basic amenities such as drains, s t r e e t l i g h t i n g and such, are contained i n a wide range of l e g i s l a t i o n . c) Pood and drugs are subject to regulations with regard to q u a l i t y , l a b e l l i n g , marketing and a d v e r t i s i n g . B. Mental. ( i ) Immunity of the w i l l form coercion. a) I t i s a c l e a r aim of the law that people should be allowed the free exercise of w i l l i n doing or not doing various a c t s . Thus, i n any s i t u a t i o n where i t appears that a person's free v o l i t i o n has been i n t e r f e r e d with, the law tends to regard i n t e n t as having been negatived. This i s most c l e a r l y seen i n various defences afforded by the law such as duress and undue influence. b) Controls are imposed on the k i n d of i n t e r r o g a t i o n techniques that may be used by the a u t h o r i t i e s f o r e x t r a c t i n g evidence, confessions or other sorts of information from people. - 90 -c) Such techniques as subliminal advertising have been prohibited by the la?/ as these represent what may be described as an invasion of an individual's freedom of choice. (ii) Care of the mentally i l l . Special care and treatment is provided for the mentally i l l . The law does not hold such persons to be responsible for their acts. Legislation provides for special facilities and, when necessary, for compulsory 4 7 guardianship or admission. ( i i i ) Only a very limited protection is given by the law for injured feelings or mental shock. (iv) In general, the law aims to give effect to the v/ishes of individuals and will do so unless such would involve, for instance, illegality or would achieve, as a side-effect, some other result that 4 9 the law seeks to condemn. Primary Goal - ALLOCATION OF RESOURCES A. Shared enjoyment (inclusive) (i) Conservation. -of rivers, forests and areas of natural beauty, and of mineral resources, o i l and gas. Clearly, a l l these resources are subject to waste or despoiliation and, therefore, long-term conditions for their conservation must be worked out. 47. The Mental Health Act, 1959, C.72. 48. See, King v Phillips (1953) 1 Q.B. 429. Eourhill v Young (1943) A.C. 92. 49. For example, see Riggs v Palmer 115 N.Y. 506, 22 N.E. 188 (1889) - 91 -a) Town and country planning controls protect areas for the r e c r e a t i o n a l b e n e f i t of the community. Animals and birds of rare species are given added p r o t e c t i o n . b) Detailed controls are placed on the e x p l o i t a t i o n of o i l and gas reserves. ( i i ) Achievement of a d i s t r i b u t i o n of wealth i n soc i e t y . This i s usually done by the imposition of taxes on i n d i v i d u a l s and corporations. In England, the major modes of taxation are as follows; of income, c a p i t a l gains, c a p i t a l transfers and of corporations. However, the law does recognise c e r t a i n methods of tax avoidance although i t seems there may be a trend towards clamping down on such schemes. ( i i i ) State ownership of c e r t a i n key industries i s a p o l i c y that aims at ensuring that a nation has an i n t e r e s t i n those i n d u s t r i e s . I t i s also a means whereby jobs may be provided by the state f o r large numbers of people. ( i v ) The re g u l a t i o n and use of the sea and outer-space. Generally, agreements have to be made i n r e l a t i o n to the use of the seas and air-space, both from the aspect of conservation and of safety. (v) Protection of l i v e s t o c k , a g r i c u l t u r e and the f i s h e r i e s . Resources of t h i s kind are obviously v i t a l to basic s u r v i v a l and so must be c a r e f u l l y c o n t r o l l e d . - 92 -a) Agriculture i s supported by various subsidies and controls are imposed on farming of a l l s o r t s . b) Livestock i s s i m i l a r l y c o n t r o l l e d . c) S p e c i a l protection i s given to animals such as the whale and seals to prevent t h e i r indiscriminate slaughter. ( v i ) There i s a current p o l i c y towards an increase i n the power of the 50 state to purchase land and c o n t r o l the use of land. Action has been taken to prevent land speculators making excessive p r o f i t s out of development p r o j e c t s . ( v i i ) There i s a general community i n t e r e s t i n progress and research, both i n the a r t s and science. Another aspect of this goal i s seen i n the p o l i c y of allowing favourable tax concessions to c h a r i t i e s who seek to r e l i e v e some deprived or under-privileged section of s o c i e t y or who undertake research as described above. B. R e s t r i c t e d enjoyment (exclusive). ( i ) The use and control of private wealth and resources. The law acknowledges an i n d i v i d u a l ' s r i g h t to c o n t r o l over hi s private property and h i s r i g h t not to be deprived of that property. The concept of ownership i s a feature of our system that h i g h l i g h t s the sheer complexity and s o p h i s t i c a t i o n of that system. In primitive systems of law an i n d i v i d u a l ' s " r i g h t s " over h i s property 50. The Community Land Act, 1975, C .77. - 93 -were only as strong as his ability to maintain possession (in the physical sense) over that property. But, today, "ownership" connotes a whole mass or "bundle" of rights over property and a person need never have seen that property, let alone be in possession of i t . Thus, the protection given by the law to 51 ownership is equally developed. By the law of theft^ sanction is imposed on those who deprive others of their property. In tort, a remedy is given to the person so deprived. (ii ) The freedom to make and enforce agreements. a) Fundamentally, this goal is served by the law of contract. In the words of Myres McDougal:-"The generalized task of the "law of contracts" is to establish both a framework within which individuals by their own initiative and agreement can shape and share values and certain limits beyond which volition cannot transgress upon community policies." 52 The limits fixed by the law are, for example, that contracts that are immoral, discriminatory, or that seek to impinge on the free use of community resources will not be enforced. Also the law will not enforce a contract i f to do so would have a negative effect in terms of a more important goal. Contracts for personal services, for instance, will not be subject to specific performance as this would involve an incursion on individual free will. However, damages may be awarded. Also, the law recognises that instances ?/ill occur where i t is not feasible or possible to f u l f i l a contractual obligation as a link in the causal chain has broken down. The doctrine of frustration is an instance of this kind, or 51. The Theft Act, 1968, C.60. 52. McDougal and Associates, Studies in World Public Order (Hew Haven: Yale University Press, I960). 973' - 94 -an agreement that subsequently becomes i l l e g a l . b) Sales are a p a r t i c u l a r kind of contract and although, generally, the p o l i c y i s to allow an optimum of freedom i n t h i s area and the maxim caveat emptor a p p l i e s , nevertheless, the law does 53 exercise a high degree of supervision over such contracts. Buyers are now given a s i g n i f i c a n t degree of protection from over-burdensome contracts and several pieces of l e g i s l a t i o n d i r e c t courts to take into account such matters as concern the 54 whole nature of the bargain a r r i v e d aX. In a d d i t i o n , r e c o g n i t i o n i s given to the f a c t that the d e t a i l s may d i f f e r as to various sorts of contracts, such as for insurance, banking and labour. ( i i i ) To f a c i l i t a t e trade and commerce. This i s c l e a r l y l inked to ( i i ) above, but i n the broader perspective of the whole spectrum of trade i n s o c i e t y . In t h i s category we may include the structure of corporations, taxation and customs and excise 55 and the general conduct of trade. Other important matters that may be mentioned include bankruptcy, insolvency, copyrights and patents. 53. See, The Sale of Goods Act, 1893, 56 and 57 V i c t . , C.71. 54. See, The Supply of Goods (implied Terms) Act, 1973, C.13, s. 55 (v). This d i r e c t s the court to look at such matters as the r e l a t i v e bargaining strength of the p a r t i e s , the presence or absence of competition. A l s o , The Consumer Credit Act, 1974, C . 3 9 , s.138 - a c r e d i t bargain i s l i a b l e to be re-opened under s .139 i f i t i s extotionate i f i t requires the debtor to make payments that are g r o s s l y exhorbitant or i f the agreement otherwise contravenes ordinary p r i n c i p l e s of f a i r dealing. The court can look at a number of f a c t o r s i n c l u d i n g the i n t e r e s t r a t e s , experience and business capacity of the p a r t i e s , and the extent to which the borrower was under f i n a n c i a l pressure at the time of the bargain. 55« In "this area see, The F a i r Trading Act, 1973, C .41. U n s o l i c i t e d Goods and Services Act, 1971, C . 3 0 . - 95 -( i v ) R e s t r i c t i o n s upon the use of property. Under t h i s heading we must note some of the l i m i t a t i o n s placed upon the free dealing with private property by the law. a) In r e l a t i o n to r e a l property stringent requirements are l a i d down f o r the reg u l a t i o n of leases and r e l a t i o n s h i p s between landlord and tenant. L e g i s l a t i o n sets out the procedures f o r dealing with land 56 and the relevant requirements. b) Various r e s t r i c t i o n s are placed on the kind of operations that can be c a r r i e d on on land and a d i s t i n c t i o n i s made between business and r e s i d e n t i a l premises. Any a c t i v i t i e s must not be dangerous or constitute a nuisance. 3. COMMENT In t h i s s ection the emphasis has been upon viewing purposes as i n t r i n s i c parts of the l e g a l system i t s e l f . Once we can appreciate the goals at stake i n any issue or case that arises we may have an i n d i c a t o r a v a i l a b l e as to how we should decide the same i n the manner best able to s a t i s f y those goals. The v/hole e d i f i c e of the goal matrix w i l l f u r t h e r give us some idea of which goals are of the greatest importance to our society and to which we should give the greatest p r i o r i t y . The crux of the matter i s , therefore, i d e n t i f y i n g the goals and i t i s t h i s problem that presents the most serious l i m i t a t i o n on using purpose i n t h i s way. 56. The Law of Property Act, 1925, C .20. - 96 -For, i f we cannot t e l l j u st what a given r u l e or set of rules aim to achieve we cannot t e l l how to apply that rule i n a meaningful way. These questions w i l l be discussed i n the f i n a l chapter. But i t may be useful to set out a couple of examples of the kind of instances where c o n f l i c t between r u l e s has r e c e n t l y a r i s e n and where goals can be i d e n t i f i e d with some c e r t a i n t y . 1. In England there has been a great d e a l of debate over the problem of groups o f i n d i v i d u a l s squatting on private property even where th i s property i s obviously occupied, although the residents may temporarily be absent. I t seems that the law provided a very l i m i t e d protection f o r occupiers who found themselves i n this novel s i t u a t i o n and so we have a c l e a r c o n f l i c t between p r i v a t e property r i g h t s and the ri g h t s o f the homeless squatters, with regard to whom, i t would seem, the state has f a i l e d to a l l e v i a t e hardship. 2. Another issue that arose recently was that concerning the ri g h t of members of the Sikh f a i t h not to wear crash-helmets when r i d i n g motor-cycles despite provisions i n the law to the contrary. The issues here were, (a) - the preservation of l i f e ; and (b) - freedom of r e l i g i o n . Many more examples e x i s t . The important thing to note i s that the goals do come from within the law i t s e l f . There i s thus no l o g i c a l - 97 -necessity f o r a judge to indulge i n any weighing or balancing process of material extraneous to the law. The goal matrix already supplies the relevant c r i t e r i a . - 98 -IV THE FUNCTION OF PURPOSE 1. INTRODUCTION. In the f i r s t chapter we looked a t the various theories where purpose i s seen as having a s i g n i f i c a n t role to play. I t i s proposed i n this s e c t i o n to examine exactly how purpose may function i n the l e g a l system. This i s e s p e c i a l l y pertinent to the mechanism of the j u d i c i a l d e c i s i o n , and we s h a l l consider how goals may be of p r a c t i c a l use i n t h i s f i e l d . However, there are c e r t a i n important points that should be borne i n mind i n pursuing this topic of the r o l e played by goals. One of the notable f a c t o r s that emerged from our e a r l i e r discussion was that, according to most theories of law, we are constrained to make a choice i n a c o n f l i c t s i t u a t i o n between obtaining the ends of cert a i n t y or j u s t i c e . The question i s whether the use of goals can eliminate the necessity f o r this choice. E s s e n t i a l l y , what i s being- done i s to view goals as part of the law, although not as part of the r u l e , and d e r i v i n g those goals from the law i t s e l f . Yet we may s t i l l face the same dilemma i n t r y i n g to obtain both c e r t a i n t y and j u s t i c e . I d e a l l y we should be able to formulate a statement that represents a nexus between goal and the means to achieve i t ; thus, "In order to achive x r e s u l t , deny." This i s the most desirable method of expressing goals but i t does have a drawback. I f x i s not cl e a r then the whole statement becomes obscure i n meaning. Once again we are faced with an area of indeterminacy. - 99 -Although, i t may sometimes he the case that a goal of a r u l e i s vague, i n r e a l i t y , i t i s not easy to imagine a s i t u a t i o n where the purpose of a rule i s completely undiscernihle. A purpose may have become redundant or anachronistic i n a society f o r a v a r i e t y of reasons, but t h i s i s not the same as a r u l e having no purpose at a l l . Rules f a l l i n g i n the former category may, anyway, be d e a l t with i n Exception 4 of the causal theory of Coval and Smith. In the areas where goals do present a problem of c l a r i t y i t i s preferable that we should accept t h i s d i f f i c u l t y rather than indulge i n imputing arguable or " a r t i f i c i a l " purposes to a r u l e . I t must be stressed that the goals are to be taken from the law and so we should avoid b l u r r i n g t h i s f a c t by introducing e x t r a - l e g a l c r i t e r i a . If t a c k l i n g the problem i n the above manner proves unsatisfactory the next best a l t e r n a t i v e i s the introduction of Dworkin 1s p r i n c i p l e s , p o l i c i e s and other standards. Yet these, as we s h a l l see, are b a s i c a l l y vague and, more s i g n i f i c a n t l y , lack the c l e a r i d e n t i f i c a t i o n features that the goal "concept" may f u r n i s h . Many of our informal s o c i a l p r a c t i c e s or rules have a c e r t a i n aspect that has been termed t h e i r "invocation feature". Thus, when a c e r t a i n procedure i s followed other consequences may reasonably be a n t i c i p a t e d to r e s u l t . The same i s true of l e g a l r u l e s which a l s o , l i k e s o c i a l r u l e s , may take account of those instances where the usual consequences do not follow f o r some reason. Indeed, the invoking features and the body o f the practice are quite d i s t i n c t . So the material of the l a t t e r i s not necessary to the v a l i d i t y of the invoking 1. Coval and Smith, The Causal Theory of Law, at 116. - 100-act but is simply something which must follow for that act to have its accustomed result. Having such clear identification features may ensure compatibility of goals in the system and so the maximum achievement of both certainty and justice. The most important matter in the use of purpose is the degree to which we can state goals of rules clearly and objectively - from within the law. Even where purpose has been acknowledged to be of importance within the legal system there is considerable argument as to the manner in which i t operates. Several attempts have been made to attribute ovgrall purposes to the whole edifice of the law and the legal system. By this is meant that one overriding goal is put forward as forming the rationale behind the system. This may be an aim such as the "human dignity" criterion of Lasswell and McDougal, or in the nature of Hartzler's requirement of justice. However, we have already seen that such "aims" are too abstruse and difficult to define to be of very much constructive use. Gidon Gottleib has suggested another approach and criticises the view of searching 2 for purposes for law as a whole. He shares Dworkin's reservations about the existence of some general goal or function served by the legal system. Both of these writers are sceptical of the perspective taken by Wasserstrom who sees law as having a function in the form of some kind of Utilitarian 3 principle. Indeed, i t is very hard to imagine any one goal that a majority of people would choose as an ultimate standard by which to evaluate 2. Gidon Gottleib, The Logic of Choice, (London: Macmillan 1968) (hereinafter Gottleib). 3. Wasserstrom, The Judicial Decision, (Stanford: Stanford University Press, 1961). - 101 -j u d i c i a l decisions. Even i f there was consensus on a p a r t i c u l a r formulation, i t i s more than l i k e l y that the interpretations placed upon that goal would he so diverse as to render any postulated d e f i n i t i o n almost meaningless. This i s the fundamental reason why no major, overriding goal was selected for the goal matrix discussed i n Chapter I I . There are inherent dangers i n t r y i n g to e s t a b l i s h a f i n a l goal f o r , 4 as Dworkin has pointed out, there i s an inference that such a goal must he of such value to the general community that i t must always overrule any inconsistent goals whatever the circumstances. P l a i n l y , t h i s cannot be so. I f i t were, the whole l e g a l system could be subject to manipulation or d i s t o r t i o n f o r the sake of some intangible but supreme goal. In contrast, G o t t l e i b ' s method i s concerned with the purposes of "single rules and enactments". He argues that such purposes do not have to be forward-looking i n nature as Dworkin seems to believe. In t r y i n g to focus on the purposive nature of rules and laws and t h e i r r o l e i n decision-making the term "goal" has been used. Nothing turns on t h i s and the term i t s e l f has no s p e c i a l s i g n i f i c a n c e , but other writers have evidenced-much concern with s e t t i n g out complex d e f i n i t i o n s . Dworkin, fo r example, sees the p i v o t a l point of h i s whole thesis as r e s t i n g on 4. R. Dworkin, Does Law Have a Function? (1965)74 Yale Law Journal 64O. - 102 -the d i s t i n c t i o n between p r i n c i p l e and p o l i c y . ^ We s h a l l consider the importance of h i s argument l a t e r on. The term "function" has also been f a i r l y frequently applied tonvarious aspects of law. Usually we f i n d i t being used i n a c o l l e c t i v e sense i n describing the fu n c t i o n of the lav/ of t o r t s , or the function of a p a r t i c u l a r doctrine of law such as that of nemo dat quod non habet, f o r example. I t i s e s s e n t i a l l y a d e s c r i p t i v e term and may be used i n a number o f ways. In one sense function implies the idea of the effectiveness of something i n f u l f i l l i n g the ends f o r which i t was designed. This suggests that there i s a difference i n a p p l i c a t i o n between the terms of function and purpose. In another sense we may look at how something functions by reference to the actual e f f e c t on the practice to which i t r e l a t e s . I t has been pointed out that this e f f e c t need not be the one that was intended and can be negative i n nature. In summary i t has been s a i d , "The common denominator o f the various meanings of the term "function" i s that i t always ref e r s to some objective f a c t o r which can be e m p i r i c a l l y observed or l o g i c a l l y deduced from given p r i n c i p l e s . " 7 Function,then, seems to r e f e r to the operational r e a l i t i e s of the way i n which a ru l e i s working, (or not working), and need have l i t t l e reference 5. R. -Dworkin, Hard Cases, (1975) 88 Harvard Law Review 105 7, (Hereinafter Dworkin Hard Cases). 6. Kretzmer, Aims and Functions of the Tort System of Loss A l l o c a t i o n (Osgoode H a l l Law School: York Un i v e r s i t y 1974) a t 8 - 9, f o r a discussion of the meaning of the term "Function". 7. ID. at 9. - 103 -to the ends or aim that the rule is supposed to be serving. This is the kind of differentiation intimated by Gottleib, although as he concludes, the distinction is of relatively small significance in the Q context of this discussion. 2. PURPOSE AS IT OPERATES IN THE JUDICIAL DECISION I. In this section the general aim will be to evaluate the effectiveness of using purpose and goals to ascertain how a judge should reach a decision in a case - particularly in a hard case. The fundamental problem in this area seems to be how we are to use goals and to what degree i t is possible accurately to discern the nature and content of those goals. The positivist view, at one end of the scale, as expounded by Hart sees goals as being extra-legal considerations that come into play in a decision when the area of the penumbra is reached and rules cease to provide guidance for the judge. The judge's discretion i s , however, not totally unfettered, but the standards that function to constrain i t are vague and essentially indeterminate. Although Dworkin, as we have seen, says that principles operate in decisions as legal criteria and point to a correct decision in each case, these principles do not function in a rule-like manner within the system. Yet they do operate to eliminate discretion. Rolf Sartorius takes a similar area of discretion. The basis of this is that what the judge ought to do in hard cases depends directly upon what he must do in the easy cases. 8. Gottleib (1968) at 108. - 104 -He says, "Far from being free at any point to reach an e s s e n t i a l l y l e g i s l a t i v e decision among p r i n c i p l e s external to the law, the judge i s i n a l l cases ultimately guided by l e g a l p r i n c i p l e s which severely l i m i t , i f they do not t o t a l l y eliminate h i s d i s c r e t i o n . " 9 Sartorius sees law as bodies of rules which have s i m i l a r i t i e s of content or consequences o f a p p l i c a t i o n that provide c e r t a i n p r i n c i p l e s f o r the guidance^ of judges over and above the more p a r t i c u l a r j u d i c i a l o bligations but which have been established i n those p r i o r o b l i g a t i o n s . Since there i s a f a i r l y large degree of systematic c o n t r o l i n even the hard cases, j u d i c i a l d i s c r e t i o n cannot be regarded as being l e g i s l a t i v e i n nature. The view adopted i n the causal theory attempts to s i m p l i f y matters by placing p r i n c i p l e s w i t h i n the sphere of r u l e s and structure. By doing t h i s i t i s argued that i t w i l l be possible to t e l l , systematically, when such p r i n c i p l e s gain recognition i n the structure and when they cease to be of importance. I t does seem more sensible and p r a c t i c a l to view p r i n c i p l e s as having a basis i n the more concrete r u l e s of the system rather than as occupying a somewhat nebulous, ephemeral p o s i t i o n outside i t . This i s important f o r the generative nature of the system. 3. THE PROBLEM OF IDENTIFYING GOALS Central to the causal theory i s the concept that there i s a close correspondence between goals and r u l e s but there are some d i f f i c u l t i e s involved i n t r y i n g to a s c e r t a i n what are these goals i n very border-line 9. S a r t o r i u s , J u s t i f i c a t i o n of the J u d i c i a l Decision, E t h i c s 78, 171-187- AP. (1968) at 175. - 105 -cases. We have already seen that a search f o r an all-encompassing goal f o r the l e g a l system i s l a r g e l y f u t i l e , hut the question i s whether i t i s easier or more productive to p i n down i n d i v i d u a l goals or purposes. For example, Graham Hughes does not believe that a r u l e per se can have a purpose. The person who devised the r u l e may have had some s o r t of aim i n mind hut t h i s i s to he distinguished from a s c r i b i n g a purpose to a r u l e . Hughes stresses h i s point by reference to a number of r u l e s that were o r i g i n a l l y intended to f u l f i l one aim but which cu r r e n t l y achieve quite d i f f e r e n t ends. He comments, "Examples could be m u l t i p l i e d of cases where p a r t i c u l a r rules of law or broad l e g a l i n s t i t u t i o n s have suffered a sea of change and serve purposes s t r i k i n g l y opposed to t h e i r o r i g i n a l functions, - I t i s enough to submit that i f we are to f i n d common purposes here, i f we are to f i n d i n the old h i s t o r y the i n a r t i c u l a t e embryo of the l a t e r development, t h i s can only be done by describing our purposes i n such highly abstract terms that they can have l i t t l e or no u t i l i t y as tools f o r the understanding of the development of law." 10 Joseph Raz has made a s i m i l a r point. He remarks that i t i s frequently impossible to a s c e r t a i n the purpose o r i g i n a l l y envisaged by the l e g i s l a t o r . Consequently, he suggest that i t i s not the i n t e n t i o n of the l e g i s l a t o r that i s the determining f a c t o r , but how the law i s viewed by the population and various branches of the l e g i s l a t i v e and j u d i c i a l arms of government. 1 1 There seem to be four main instances where problems may a r i s e i n i d e n t i f y i n g and r a t i o n a l i s i n g the operation of goals: 1. Where the purpose of a r u l e has become transmuted and i s eventually applied to s i t u a t i o n s markedly d i f f e r e n t to those contemplated by the o r i g i n a l l e g i s l a t o r . 10. G. Hughes, The Existence of a Legal System (i960) 35 N.Y.U. L.R. 1001, 1025. 11. Joseph Raz, On The Functions Of Law, Oxford Essays In Jurisprudence ed. A.W.B. Simpson, ZD Series (Oxford: Clarendon Press, 1973) at 278. - 106 -2. Where the rule c u r r e n t l y serves a purpose that i s redundant or useless to s o c i e t y . 3. Where the a p p l i c a t i o n of the rule achieves ends that are contrary to other evident goals of r u l e s . 4 . Where there are, as G o t t l e i b puts i t , "a p r o l i f e r a t i o n -12 „ 13 of purposes". With regard to the f i r s t category, there seems to be an i m p l i c a t i o n that each r u l e should lhave one, f i x e d purpose fo'r a l l times. This assumption i s questionable as being u n r e a l i s t i c ; there i s no r e a l need f o r t h i s to be so. When a rule i s applied to a v a r i e t y of d i f f e r e n t s i t u a t i o n s i t may well undergo a purposive change and serve other goals of the system. This may be a p o s i t i v e advantage i n a r a p i d l y changing society and can r e f l e c t developments that occur i n society i n the law. I t must be remembered that the purpose of laws are being regarded both i n d i v i d u a l l y and i n r e l a t i o n to t h e i r r o l e i n the whole structure of the system of r u l e s . I f , therefore, changes have taken place i n c e r t a i n areas of that system they must pervade the system i n i t s e n t i r e t y . Thus, the goal of one p a r t i c u l a r rule may have to undergo change or adaptation i n order to maintain a degree of consistency and c o m p a t i b i l i t y with the r e s t of the system. 12. G o t t l e i b at 109. 13. I t should be remembered that these issues a r i s e at the fringe areas, where i t i s hard to see c l e a r l y what goal i s being served by a r u l e . - 107 -There does not appear to be any r e a l reason why s o c i a l and economic considerations should not a c t u a l l y influence goals within the law - as long as they are admitted into the leg a l system i n a r u l e - l i k e manner. Thi3 must be so f o r the rules to function i n the way envisaged i n the framework of the causal theory. The next two categories are of a r e l a t e d nature and can be taken together. I d e a l l y , when a rule ceases to serve a relevant purpose i n society i t should be.repealed, but often the l e g i s l a t u r e does not get around to doing t h i s . In the case where such a r u l e does p e r s i s t on the statute books t h i s need not n e c e s s a r i l y damage the c r e d i b i l i t y of the goal matrix as i t could be regarded as a rule that has l o s t i t s relevance to the r e s t of the matrix. For instance, an o l d r u l e existed i n London that a l l t a x i - d r i v e r s had to carry a bale of hay i n t h e i r cabs f o r the horse, harking back to a less median i s ed age. P l a i n l y , this rule no longer has any purpose i n so c i e t y as the very conditions to which i t pertained no longer e x i s t . In the causal theory t h i s s i t u a t i o n may be covered by Exception 4« S i m i l a r l y , Exception 3 covers our t h i r d category above. I f the cause-effect r e l a t i o n s h i p between a r u l e and i t s goal break down i n these ways the r e s u l t i n g d e c i s i o n represents a modification of the former p o s i t i o n . I t need not mean that the v a l i d i t y of the matrix i s damaged by such changes. Law must be f l e x i b l e and s e n s i t i v e to s o c i a l needs, yet predictable i f i t i s to be a cohesive force i n society. The w r i t e r A l v i n T o f f l e r has expressed great doubts about the a b i l i t y of the law to do t h i s f o r much longer."^ He f e e l s that laws cannot be written, 14. T o f f l e r , Future Shock (The Bodley Head 1970). - 108 -enacted and repealed r a p i d l y enough to keep up with the changing patterns of s o c i e t y . A purpose-oriented system could counter t h i s fear by preserving consistency, p r e d i c t a b i l i t y and security of the system i n the (a) - type goals while simultaneously g i v i n g f l e x i b i l i t y and a d a p t a b i l i t y i n a t t a i n i n g the (b) - type goals. One of the problems see by Hart i n the f i e l d of purpose i s the 15 " r e l a t i v e indeterminacy of aim" of many o f our r u l e s . G o t t l e i b accepts that t h i s i s often the case but points out that i t i s not necessary f o r a statute to be directed towards a l l future instances where i t may be ap p l i c a b l e . This would never be f e a s i b l e . However, he f e e l s that some purposes are going to be so vague that they w i l l be r e l a t i v e l y useless i n r e s o l v i n g disputes; i n his words, "..... the determination of the purpose or p o l i c y of an enactment often involves the consideration of complex compromises and indeterminate goals which leave the l e g i s l a t o r ' s p o l i c y unresolved. Because of t h e i r vagueness, these purposes and p o l i c i e s cannot function as e f f e c t i v e guides f o r the a p p l i c a t i o n of a rule to p a r t i c u l a r s . The d i s c r e t i o n of a court  or other persons applying the- enactment i s then  n e c e s s a r i l y augmented." 16 This passage brings out the basic difference between Go t t l e i b ' s view and that demonstrated i n the causal theory. However, i t may only be a difference of degree. There are c l e a r l y going to be many instances where d i s c r e t i o n must be exercised. No rule-governed structure w i l l guide a court i n deciding where, f o r example, a c h i l d i n custody proceedings w i l l 15. Hart, (1961) a t 125. 16. G o t t l e i b a t 110. (Emphasis Added). - 109 -"best be placed. Determining what i s best f o r a c h i l d ' s welfare i s dis c r e t i o n a r y , hut deciding, i n the f i r s t place, that that welfare i s more important than a parents wishes i s not. The law s p e c i f i e s that the welfare of the c h i l d i s to be the paramount consideration. I t i s possible to f i n d many areas of law where l e g i s l a t i o n may serve a p r o l i f e r a t i o n of purposes and i n those cases the ro l e of goals becomes more questionable. For example, tax l e g i s l a t i o n e s p e c i a l l y f a l l s i n t o this c l a s s . The goals served by a p a r t i c u l a r enactment can vary quite considerably and may be influenced to a very great extent by the p o l i t i c a l allegiance of the government that passes i t . A d d i t i o n a l l y , the f a c t that many taxes can l e g i t i m a t e l y be avoided complicates the issue even more by introducing another perspective on the relevant l e g i s l a t i o n . Changes that occur i n the goal orderings i n this case may not i n e v i t a b l y be ones from within the law alone, but may be imposed from outside i t by a number of influences such as pressure from p o l i t i c a l i n t e r e s t s , business and other f a c t o r s . When such a m u l t i p l i c i t y of goals presents i t s e l f i t seems that - a choice i s necessitated. I t may be that the process by which that choice i s made i s a subjective one i n which case we are back i n the area of d i s c r e t i o n . But, as we have observed before, rules do not gene r a l l y operate i n t o t a l i s o l a t i o n from one another, and so there i s a foundation f o r the argument that other rules (and the i r goals) provide guidance as to how that choice ought to he made. (the (a) - type goals may dic t a t e the proper d e c i s i o n . - n o -In attempting to draw up the c l a s s i f i c a t i o n of goals set out i n Chapter II, i t was found to he easier to approach the problem from the aspect of discovering the major aims served by the law and then p l a c i n g the rules under those headings. This contrasts with the other method of c l a s s i f y i n g the functions of a general area of law, such as contract or t o r t , the i n d i v i d u a l r u l e s of which can serve goals of a highly diverse nature. In any event, i t should be remembered that a c l a s s i f i c a t i o n of any sort must involve overlap between categories. Also, care must be taken not to over-simplify the task of i d e n t i f y i n g goals. I t i s obviously a very complicated one. As an example of the l a t t e r approach described above we may look at a discussion of the aims of the law of t o r t . Any b r i e f , general d e f i n i t i o n s are v i r t u a l l y meaningless and are of l i t t l e value. However, G l a n v i l l e 17 Williams has formulated a more comprehensive summary of the aims of t o r t . In b r i e f , he states that there are s i x purposes f o r which t o r t actions are u s u a l l y brought, 1. To give the p l a i n t i f f what the defendant has promised him, or at l e a s t to give him damages f o r not g e t t i n g what the defendant has promised. 2. To compensate f o r harm, or to prevent the continuance or r e p e t i t i o n of harm. 3. To restore to a person what another has u n j u s t l y obtained a t h i s expense. 4. To punish f o r wrongs and to deter from wrong-doing;. 17. G l a n v i l l e Williams, B.A. Hepple, Foundations of Tort (London: Butterworths, 1970 at 23 - 'lb. - m -5« To decide the r i g h t s of the p a r t i e s . 6. To decide or a l t e r a person's status. In a l l of these situations G l a n v i l l e Williams points out that there i s an i n t e r s e c t i o n with other parts of the law such as contract, the criminal law and aspects of family law. The a c t u a l goals involved i n s p e c i f i c cases, say, f o r example, where a patient i s injured a f t e r a 18 surgeon leaves a swab inside him, and where a person, takes an a c t i o n i n defamation are found throughout the whole spectrum of the matrix and not s o l e l y i n one area of law. Thus, we see that the law of t o r t serves a far-ranging c o l l e c t i o n of purposes i n society and t h i s , as 19 G l a n v i l l e Williams notes, adds g r e a t l y to i t s complexity. He sees the most important function of t o r t as being that of compensation, an aim that cannot be detached from i t s s o c i a l and economic consequences i n society. He also remarks that the la?/ of t o r t has been u t i l i s e d to put pressure on the a u t h o r i t i e s to remedy a wrong suffered by a section of society. He c i t e s the example of the thalidomide victims whose case highlighted the d i f f i c u l t i e s of obtaining redress f o r ante-natal i n j u r i e s . A l s o , workers who suffered from the disease of asbestosis as a r e s u l t of handling asbestos at the factory of one manufacturer, sought r e l i e f i n t o r t . A further aspect of t o r t i n r e l a t i o n to accident compensation that must be noted i s that of the contemporary use of insurance as a means of minimising the f i n a n c i a l consequences of l i a b i l i t y f o r r i s k s . In the case of a road 18. ID. at 24 19. ID. at 26 20. ID. at 171. I - 112 -accident i t i s r a r e l y that the g u i l t y party ever pays personally the compensaticTn to the v i c t i m of h i s negligence. So, the sanction or deterrent aspect here i s considerably d i l u t e d . The sanction, i f any, i s imposed hy the c r i m i n a l law i n the form of f i n e s , licence endorsements or loss of d r i v i n g l i c e n c e . In e f f e c t , insurance tends to l i f t the burden of l i a b i l i t y , f i n a n c i a l l y at l e a s t , from the negligent party. The aim i s to compensate victims f o r i n j u r i e s suffered - even where no 20 f a u l t can be shown. Merely by looking at t h i s aspect of law therefore, i t i s apparent that there are many d i f f i c u l t i e s i n a l l o c a t i n g f i r m goals to r u l e s that may embody a whole myriad of p o l i c y considerations. But i t must be borne i n mind that i t i s not necessary to decide goals i n advance of p a r t i c u l a r cases. What must be done, preferably, i s to look at the a p p l i c a t i o n of the r u l e to the relevant f a c t s i t u a t i o n i n terras of i t s r e a l consequences and determine whether the r u l e i s applicable i n r e l a t i o n to those e f f e c t s . We would not wish to invoke a r u l e p r o h i b i t i n g assault against a person who had f e l t compelled to knock someone out i n order to prevent them from t r y i n g to commit s u i c i d e , or who d i d so to push someone out of the path of an oncoming v e h i c l e . Despite the f a c t that the d e f i n i t i o n of an "assault" applied, and the " v i c t i m " suffered the i n j u r y contemplated i n the statute, the purpose of the statute i s not relevant to the f a c t s described. 20. In England the Motor Insurers Bureau e x i s t s to compensate the victims of accidents where the negligent party was uninsured or where the v i c t i m was i n j u r e d by a "hit-and-run" d r i v e r . - 113 -The fundamental issue amounts to whether i t i s , realistically speaking, possible to structure the way goals work in the legal system in such a way that a solution is provided or indicated for even the hard cases. The alternatives to the concept found in the causal theory are represented in the views we have examined in this thesis and may be summarized in the following way: 1. The positivist view that the hard cases are a matter for judicial discretion broadly constrained by certain standards. 2. Principles and policies exist that are of binding force on the judge, that are not extra-legal, and that dictate unique solutions in every case. 3. Purposes and goals provide inference-guidance for many cases, except where the goals are especially unclear. 4. HOW PURPOSE MAY BE USED IN PRACTICE Having noted the problems involved in ascertaining goals our next task is to determine how we can try to use goals in a practical manner. A. GOTTLEIB Gottleib envisages two ways in which purpose can provide guidance in the 21 application of rules. Firstly, when the relevant case is a penumbral one, and secondly where i t falls within the core of a particular rule. For an instance of the relevance of purpose in a case falling in the context 21. Gottleib at 106. - 114 -of the l a t t e r s i t u a t i o n G o t t l e i b adopts P u l l e r ' s example of the Second World War truck set up as a monument i n the park. The question posed there was whether t h i s truck, though c l e a r l y a v e h i c l e within the meaning of the "No v e h i c l e s " r u l e , could be allowed to remain and thus not be subject to the a p p l i c a t i o n of the r u l e . G o t t l e i b argu.es that as the r u l e was not intended to d e a l with the erection of monuments, i t would be inappropriate to apply i t i n these circumstances. To do so would be to apply a rule that " a c c i d e n t a l l y " r e f e r s to vehicles but which has no genuine connexion with the a c t u a l s i t u a t i o n . He says; "Purpose can thus be used to preclude the a p p l i c a t i o n of a r u l e i n s i t u a t i o n s which seem to f a l l squarely within i t s language when such a p p l i c a t i o n would lead to r e s u l t s e n t i r e l y a l i e n to i t s purpose." 22 Gottleib and F u l l e r therefore agree that a consideration of purpose i s relevant even where the a p p l i c a t i o n of a r u l e , s t r i c t u sensu, i s not i n doubt. In the case of a rule such as the "No v e h i c l e s " one, the purposes involved are f a i r l y modest. But more fundamental r u l e s have correspondingly more important goals as t h e i r b a s i s . This f a c t i s r e f l e c t e d i n the structure of the matrix from the instrumental to the primary goals. Accordingly, G o t t l e i b comments; "... even such fundamental purposes are then a t t r i b u t a b l e to the rules themselves rather than to the l e g a l system as a whole, just as the purposes of peace and quiet i n the park are a t t r i b u t a b l e to the "no v e h i c l e s " r u l e . These are not the purposes o f morality but of r u l e s of lav/. Judges need not r e f e r to moral standards to a s c e r t a i n the purposes of l e g a l r u l e s and p r i n c i p l e s however broad and general such legal r u l e s and p r i n c i p l e s may be. Fundamental rules of law are not experiments i n aimless d i r e c t i o n . They presuppose congeries of purposes and p o l i c i e s which they are designed to promote." 23. 22. IB. at 109 23. ID. at 109. - 115 -G o t t l e i b ' s conception of the role of purpose i l l u s t r a t e s one of the notable advantages of viewing law i n t h i s manner. By making use of goals i t i s possible to determine the extent of the ambit o f a r u l e r a ther more e f f e c t i v e l y than by embarking on an a n a l y s i s of the meaning of the words of a statute. I f nothing e l s e , our common-sense should t e l l us that the "no v e h i c l e s " rule cannot, r e a l i s t i c a l l y , apply to the truck-monument. An analysis of the r u l e i t s e l f does not help us, but by looking at the goal of the rule we may obtain a f a i r l y accurate impression of how we should or should not apply i t . However, G o t t l e i b i s concerned to bring to our attention a d i s t i n c t i o n between a purpose of a r u l e , i n the 3ense of i n t e n t evinced by the l e g i s l a t u r e , and how such purpose guides the a p p l i c a t i o n of the rule to p a r t i c u l a r cases. In e f f e c t , he i s arguing that i n cases where the purpose of a statute i s not very c l e a r i n r e l a t i o n to a given case, the judge i s i n a p o s i t i o n where he must look to other material or r e l a t e d statutes or any available i n d i c i a of p o l i c y . He i s not required to try and formulate an assessment of how the l e g i s l a t u r e intended that statute to be applied i n the relevant circumstances of the case. The standard that the judgje should be applying i s not the "forward-looking, state of a f f a i r s to be 24 advanced kind", that drew the c r i t i c i s m of Dworkin. The r o l e of purpose, then, i s seen as providing guidance to a judge on the a p p l i c a t i o n of a r u l e , (and extent of the a p p l i c a b i l i t y of that r u l e ) to the p a r t i c u l a r , and not as an i n d i c a t o r that a case should be decided i n one way to f u r t h e r some future-oriented, and probable less determinate desired end. 24. R. Dworkin, Does Law Have a Function? (1965) 74. Yale Law Journal 64C, a t 644• - 116 -Despite this emphasis on the importance of purpose i n r u l e s , G o t t l e i b finds considerable d i f f i c u l t y i n determining just how purpose and goals may be used f o r guiding the a p p l i c a t i o n of those r u l e s . He f e e l s that i t i s frequently impossible to obtain a c l e a r impression of the p o l i c y behind a r u l e and, as a consequence of t h i s vagueness, purpose i s of l i m i t e d p r a c t i c a l use i n s i t u a t i o n s where t h i s i s the case. What we have then, i s a theory which holds the r o l e of purpose to be of a f a i r l y s p e c i f i c nature but which e f f e c t i v e l y leaves us with an area of j u d i c i a l d i s c r e t i o n . Therefore, i n hard cases,; goals constitute a kind of supplemental that provides the judge with an a d d i t i o n a l input that w i l l r e s t r i c t h i s d i s c r e t i o n . Just what these l i m i t s are and how they operate on the judge thus becomes unclear. G o t t l e i b states h i s p o s i t i o n i n t h i s way: "The rule l i m i t s d i s c r e t i o n by d i r e c t i n g what must be done i n determined circumstances, and the purpose by guiding the a p p l i c a t i o n of the rule to the p a r t i c u l a r i n a manner cal c u l a t e d to achieve the ru l e ' s end-in-view. Accordingly, g e n e r a l i t y of r u l e or vagueness of purpose merely enlarge the d i s c r e t i o n of those r e l y i n g on them f o r guidance." 25 The problem with t h i s formulation i s that although i t i s stressed that purpose, as a guidance-device l i m i t s j u d i c i a l freedom, and that the judge must decide with reference to such c r i t e r i a , how he does so i s l e f t u n specified. I t may be that t h i s i s , i n f a c t , as f a r as we can go i n u t i l i s i n g purpose as a mechanism i n d e c i s i o n and we s h a l l look a t t h i s p o s s i b i l i t y a t a l a t e r stage. 25. Gottleib (1968) at 110. o - 117 -B. DWORKIN EE -EXAMINED We have already seen that Dworkin does not accept that there is any leeway for the exercise of judicial discretion at a l l . He sees the judge's role as follows; "He is subject to the overriding principle that good reasons for judicial decision must be public standards rather than private prejudice. And he is subject to principles stipulating how such standards shall be established and what judicial use shall.be made of them." 26 We also noted that Dworkin differentiated between principles and policies. 27 In a recent article he has expanded on this distinction and has evolved what he calls a "rights thesis" as a basis for judicial decision-making. To Dworkin, law is a system of entitlements in which the judge is never free to engage in creative judicial legislating. He sees the positivists as using discretion in a "strong" sense which me'ans, as vie have seen, that a person is never entitled to a correct decision as of right as there are no specific limitations that restrict a judge's discretion. Dworkin defines policy and principle in the following way: "Arguments of policy justify a political decision by showing that the decision advances or protects some collective goal of the community Arguments of principle justify a political decision by showing that the decision respects or secures some individual or group right" 28 Principle and policy are thus the major grounds of political justification and Dworkin's thesis is that the judicial decision in c i v i l cases, and even in the hard cases, should be generated by principle and not policy. He sees a decision made according to policy as a compromise among individual 26. R. Dworkin, Judicial Discretion (1963) 60. J.Phil. 624, at 635. 27. R. Dworkin, Hard Ca'ses 28. R. Dworkin, Hard Cases at 1059. - 118 -goals and purposes to f u r t h e r the welfare of the community as a whole. But because judges are u s u a l l y appointed rather than elected, they should not be given t h i s kind of power. Also, judges should not have the power to create new lav/ and impose new l e g a l duties r e t r o a c t i v e l y upon people. A decision made on the basis of p r i n c i p l e i s supposed to avoid both these problems. An argument of p r i n c i p l e , i t i s contended, does not often r e s t on assumptions about the nature and i n t e n s i t y of the d i f f e r e n t demands and concerns d i s t r i b u t e d throughout the community. I f the p l a i n t i f f has a r i g h t against the defendant, then the defendant must have a corresponding duty, and i t i s that duty and not some new duty created by the court, that j u s t i f i e s the d e c i s i o n against him. The duty may be i n f e r r e d even though i t i s not embodied i n p r i o r l e g i s l a t i o n and so what the court should be doing is enforcing these e x i s t i n g p o l i t i c a l r i g h t s . I n s t i t u t i o n a l h i s t o r y i s , therefore, not a constraint upon judgement, but i s an ingredient of that judgement. Dworkin describes p o l i t i c a l r i g h t s as creatures of history and morality and so, he argues, the tension between j u d i c i a l c r e a t i v i t y and i n s t i t u t i o n a l h i s t o r y i s d i s s i p a t e d . Dworkin contends that decisions cannot be made i n i s o l a t i o n without r e c o n c i l i n g them with the general theory of p r i n c i p l e s and p o l i c i e s exhibited i n other decisions. In this respect the doctrine of p r i n c i p l e i n s i s t s on consistency from one decision to another, whereas p o l i c y allows inconsistency as the various decisions need not be seen as serving the same p o l i c y . Great stress i s l a i d upon the d i s t i n c t i o n between arguments of p r i n c i p l e that e s t a b l i s h i n d i v i d u a l r i g h t s and arguments of p o l i c y that e s t a b l i s h a c o l l e c t i v e goal. This would seem to deny that s o c i a l goals can encompass protection f o r i n d i v i d u a l r i g h t s and from the f a c t of the matrix developed i n Chapter I I , we do not think that the d i s t i n c t i o n i s or can be made so - 119 -clearly. The goals of the law themselves evidence an acknowledgement of individual interests and broader social goals of a more future-oriented nature. Dworkin further develops the idea of a political aim and sees a political right as an individuated political aim. By this he means that a right must he examined with reference to a particular individual. With regard to a goal, on the other hand, which is a non-individuated 29 political aim, we are required to look at a much wider range of relevant factors. The basic goals that are referred to seem to be essentially 30 Utilitarian in identity and allow for "trade-offs" in order to oMain maximum benefit for the general community; however, rights although they may yield to another principle, can only rarely be subjugated to a goal. The crux of the identification of a right or a goal appears to be the weight that i t has in the fundamental political theory. The question that immediately springs to mind then is of how the judge is to assess and classify as rights or goals the mass of "political aims". In a system of the type that exists in the U.S.S.R., for example, i t is suggested that this would be quite impossible. An additional classification of what are called abstract and concrete rights and principles is introduced but this fails to crystallize into a clear, definitive method of identifying rights and goals. An abstract right is defined as a general political aim which is vague as to how i t is to be weighed against conflicting aims. A concrete right is a more clearly defined political aim with more precise notions of its relative weight inherent in i t . In a hard case the judge's decision must show good reasons for denying or confirming a right. What, in effect, he 29. R. Dworkin, Hard Cases at 1068 30. ID. at 1068. - 120 -must do is to square his decision with the whole enterprise of law and not merely the rules alone. Dworkin visualises each judge as formulating a conception of the law that will be germinal to his whole reasoning process. The judge must treat rights in a consistent manner and must not apply them piecemeal or erratically. A collective goal may be served in different ways on different occasions, but not so with a right. Yet again Dworkin1s distinction seems to be somewhat vague on a practical level. It is difficult to imagine a judge going through a process of setting out what he considers to be the pertinent principles and policies in the manner visualised by Dworkin. Surely, this amounts to l i t t l e more than a subjective weighing and 31 balancing of competing interests? In addition, i t has been noted that i t is the judge, ultimately, who decides the "urgency" of a competing goal, and since there is no scale by which he can assess this the decision appears to be fairly subjective. Moreover, another valuable point has 32 also been made. A political aim can be stated in an individuated or non-individuated form. The example of freedom of speech is given but many other goals could equally well be used. We have already seen that Stone made an analogous criticism of Pound's public and individual interests as being mutually subsumable under the same heading, and Dworkin's distinction apparently suffers from the same defect. It will thus be of l i t t l e value in identifying rights and goals. "Weight" s t i l l appears to be the crucial factor. 31. NOTE: Dworkin's Rights Thesis, (l9?6) 74 Mich. L.R. II67, at 1175. 32. ID. at 1176. - 121 -The judge who i s going to u t i l i s e the r i g h t s thesis has to develop a concept of the underlying p r i n c i p l e s of the relevant precedents of the common law by assigning to each of these precedents some scheme of p r i n c i p l e that j u s t i f i e s the decision i n favour of that precedent. Much therefore depends on the i n d i v i d u a l judge's comprehension of those underlying p r i n c i p l e s . I f the g r a v i t a t i o n a l force of a precedent rests on a f a i r n e s s b a s i s , the judge must discover p r i n c i p l e s not only f o r a p a r t i c u l a r precedent but consistent with a l l other j u d i c i a l decisions a t that l e g e l -"His theory i s rather a theory about what the statute or the precedent i t s e l f requires, and though he w i l l , of course, r e f l e c t h i s own i n t e l l e c t u a l and p h i l o s o p h i c a l convictions i n making that judgement, that i s a very d i f f e r e n t matter from supposing that those convictions have some independent force i n h i s argument just because they are h i s . " 33 Yet however true this may be i t i s , nevertheless, no easy task to determine where a judge's general p o l i t i c a l theory r e f l e c t s what a c t u a l l y e x i s t s i n society and where i t i s overly subjective. Dworkin's theory of mistakes i s also somewhat indeterminate. He f e e l s that where a judge can demonstrate, by arguments of p o l i t i c a l morality, that a p r i n c i p l e i s unjust, then the argument from fairness that supports the p r i n c i p l e i s overridden. But i f this i s so, i n a regime that had a general p o l i t i c a l theory supporting apartheid or suppression of any minority group, a judge could f i n d plenty of j u s t i f i c a t i o n i n precedent and general theory f o r such p r i n c i p l e s . I f the body of law upheld such oppressive p r i n c i p l e s i t could not be argued that one p a r t i c u l a r p r i n c i p l e was "unjust" because i t was inconsistent - for i t would not be. 33. R. Dworkin, Hard Cases at 1096. - 122 -The main question that arises i n r e l a t i o n to Dworkin's thesis i s whether i t avoids the p i t f a l l he sees i n p o s i t i v i s m : that of the judge weighing various p o l i t i c a l aims i n a manner external to the law rather than r e c e i v i n g d i r e c t i o n from within i t . Dworkin attempts to counter thisi c r i t i c i s m by d i s t i n g u i s h i n g two ways i n which an o f f i c i a l might r e l y on h i s own opinion. In one sense a judge may r e l y on the mere f a c t he holds a p a r t i c u l a r view as, i n i t s e l f , j u s t i f i c a t i o n f o r the decision. This i s not a proper exercise of h i s judgement. But i f he r e l i e s on his own b e l i e f i n the sense of r e l y i n g on the t r u t h or soundness of that b e l i e f , then he i s not, apparently, g u i l t y of subjectivism. Dworkin argues that a judge must at some stage r e l y on the substance of h i s own judgement i n order to make any judgement a t a l l . But the judge must defer to the judgement of others even i f he believes such to be misguided. Thus, there i s no room f o r a choice between a judge's own p o l i t i c a l convictions and those he takes to be the convictions of the community at large, "... h i s theory i d e n t i f i e s a p a r t i c u l a r conception of community morality as decisive of l e g a l i s s u e s | that conception holds that community morality i s the p o l i t i c a l morality presupposed by the laws and i n s t i t u t i o n s of the community. He must, of course, r e l y on h i s own judgement as to what the p r i n c i p l e s of that morality are, but t h i s form of r e l i a n c e i s the second form we distinguished, which at some l e v e l i s i n e v i t a b l e . " 3 4 But i t i s equally f e a s i b l e that a judge's i n t e r p r e t a t i o n of the convictions of the community are coloured by h i s own conception of them. Dworkin's other point i n r e l a t i o n to the c r e a t i o n of duties ex post facto i s w e l l taken though. His contention i s b a s i c a l l y that the r i g h t pre-exists the p a r t i c u l a r case and, once recognised, forms an a d d i t i o n to 34 ID. at 1105. - 123 -the body of law as a precedent f o r the next case i n that area. Thus, the guidance f o r that decision comes from within the law and i s not a formulation of the judge that may bear no r e l a t i o n to the general theory of law. I t must be j u s t i f i e d i n some manner that i s not based on e x t r a - l e g a l considerations. To Dworkin, the r i g h t s of the i n d i v i d u a l are of paramount importance and can never be set aside f o r the r i g h t s of the majority. However, the personal r i g h t s of the majority may well count as a j u s t i f i c a t i o n . He gives a t e s t for t h i s : -"Someone has a competing r i g h t to protection, which must be weighed against an i n d i v i d u a l r i g h t to act, i f that person would be e n t i t l e d to demand that protection from his government on h i s own t i t l e ,oas an i n d i v i d u a l , without regard to whether a majority of his f e l l o w c i t i z e n s joined i n the demand." 35 Dworkin i s opposed to a model that involves balancing i n d i v i d u a l r i g h t s 36 against the general community i n t e r e s t , but, i n r e a l i t y , his own t e s t may amount to this kind of process. He believes that the " r i g h t " of the majority, i s not one that should ever be deferred to i f i n d i v i d u a l r i g h t s are at stake, except where the protection of that i n d i v i d u a l r i g h t 37 could only be assured at an unwarranted s o c i a l cost. Dworkin envisages three s i t u a t i o n s where such cost does outweigh the value of protecting' a r i g h t . The Government might demonstrate that the values protected by the r i g h t feature only p e r i p h e r a l l y i n a border-line case. Or, i t might show that i f extended protection were to be given to a r i g h t i n such a case, another equally important, competing r i g h t might be undermined. 35. R. Dworkin, Taking Rights Seriously, Oxford Essays i n Jurisprudence, (,2D Ed.. Ed.A.W.B. Simpson London: Oxford University Press, 1973). 36. ID. at 218. 37* ffii a t 218. - 124 -F i n a l l y , i t could sho?/ that the added recognition given to the r i g h t would e n t a i l a cost to society of such magnitude that the t o t a l i t y of benefit to society by that recognition would not merit the necessary s a c r i f i c e . A l l these c r i t e r i a e n t a i l a reference to purpose and may be compared to the four exceptions o f the causal theory. The difference i s that i n Dworkin's thesis i t i s les s cl e a r just how the "exceptions" w i l l operate and we are l e f t with an impression that i t i s lar g e l y a weighing and balancing process of adjudication. 5. A SUMMARY OF THE USE OF GOALS. Having adopted the view that purpose and goals are a v i t a l element of rules and t h e i r a p p l i c a t i o n s , i t i s now necessary to make a synopsis of the various ways i n which goals may be used i n j u d i c i a l decision-making. Three major uses are apparent:-I. Goals may help to determine the extent of a r u l e . I I . Purpose and goals may operate as "unglamorous aids to 39 d e c i s i o n " that are a fa c e t of the rules themselves. I I I . Goals may be used as a t e s t of relevancy i n applying precedents. I. In the f i r s t chapter Hart's theory of j u d i c i a l d i s c r e t i o n was b r i e f l y discussed. At th i s point i t i s appropriate to return to that theory f o r a more d e t a i l e d discussion. We saw that Hart describes law as having an 38. ID^ at 222. 39. Gotleib (1968) at 109. - 125 -open texture, that i s , an area where the precise rules of the system prove indeterminate and where we are confronted with a choice between open a l t e r n a t i v e s . Hart says that we have to make such a choice because we are unable to take account of a l l possible e v e n t u a l i t i e s i n advance. We are i n h i b i t e d by our " r e l a t i v e ignorance of f a c t " and our " r e l a t i v e indeterminacy of aim". By this Hart means that, i n l e g i s l a t i n g , f o r example, that v e h i c l e s are prohibited from the park, we must have i n mind a f a i r l y narrow range of a p p l i c a t i o n . Beyond that i t i s impossible to t e l l i n a r u l e - l i k e manner how that r u l e should be applied. In other words, a r u l e cannot f i l l a m u l t i p l i c i t y of purposes. According to Hart: "When the unenvisaged case does a r i s e , we confront the issues at stake and can then s e t t l e the question by choosing between the competing i n t e r e s t s i n the may which best s a t i s f i e s us. In doing so we s h a l l have rendered more determinate our i n i t i a l aim, and s h a l l i n c i d e n t a l l y have s e t t l e d a question as to the meaning f o r the purposes of this r u l e , of a general word." 41 Thus, purpose i s u s e f u l as an a i d to a judge i n deciding cases that f a l l i n the penumbral area of r a l e s . However, i n the p o s i t i v i s t view, i t cannot be used to preclude a rule where that rule c l e a r l y a p p l i e s but where i t may lead to an anomalous or unforeseen r e s u l t . Hart believes that h i s theory avoids the s t e r i l i t y and r i g i d i t y that a f o r m a l i s t approach would give us. Formalism guarantees absolute c e r t a i n t y and p r e d i c t a b i l i t y by v i r t u e o f the f a c t that i t i n s i s t s on a r u l e having the same meaning i n every case. But the "pay-off" f o r t h i s i s that other important goals i n society must be ignored. 40. Hart, (1961) at 124. 41. ID. at 126. - 126 -G o t t l e i b ' s approach as we have seen, represents an exifeginsion on the p o s i t i v i s t p o s i t i o n . In the l a t t e r , i f a p a r t i c u l a r f a c t s i t u a t i o n i s unambiguously covered by a rule then that rule must be a p p l i e d regardless of consequences. To i l l u s t r a t e this we can examine the case of Herbert Kitson. Here, the appellant was convicted of d r i v i n g a v e h i c l e when under the influence of a l c o h o l . • Kitson had been asleep i n the passenger seat of h i s car and had suddenly awoken to f i n d that the car was r o l l i n g downhill and that the hand-brake was not engaged. In order to prevent a serious accident he grabbed the steering wheel and t r i e d to c o n t r o l the car, eventually steering i t onto a grass verge. His condition was such that he c l e a r l y came within the ambit of the statute and he had been c o n t r o l l i n g the car at the time. The judge found i t impossible to say that Kitson was not d r i v i n g the car and thus was innocent. In t h i s s i t u a t i o n G o t t l e i b would argue that the statute was not intended to apply here as, i f i t s purpose was to preserve l i f e and safety, then that goal was best served by Kitson taking the a c t i o n that he did i n the circumstances. Had he not done so possibly he and others may have been k i l l e d or i n j u r e d . Here i s an instance where a consideration of goals would have led to a more sensible and just r e s u l t . I I . Most of the writers that have been considered agree that purpose i s relevant i n the j u d i c i a l d e c i s i o n a t some stage - where they d i f f e r i s on the nature of i t s operation. The basic difference appears to l i e in the mechanics of using purpose, and whether such use should be given any kind of a s t r u c t u r a l b a s i s . Although Dworkin's exposition of p r i n c i p l e s and p o l i c i e s adds much to the vacuum l e f t by the p o s i t i v i s t 42. (1955) 59. C.A.R. 66. - 127 -view of j u d i c i a l d i s c r e t i o n , as we have seen, we s t i l l face a considerable d i f f i c u l t y i n assessing whether the judge i s a c t u a l l y s u b j e c t i v e l y weighing the p r i n c i p l e s involved and whether i t i s feas i b l e f o r him to discern and maintain a d i s t i n c t i o n between a p r i n c i p l e and a p o l i c y . Of penumbral cases Hart has commented as follows, "In these cases i t i s c l e a r that the rule-making authority must exercise a d i s c r e t i o n , and there i s no p o s s i b i l i t y of tr e a t i n g the question r a i s e d by the various cases as i f there were one uniquely correct answer to be found, as d i s t i n c t from an answer which i s a reasonable compromise between many c o n f l i c t i n g i n t e r e s t s . " 43 This statement could almost describe Dworkin's concept i f i t i s the case that the judge's f i n a l decision i s subjective. Further to t h i s , Hart has made another c r i t i c i s m of Dworkin's t h e s i s . ^ He sees the whole thesis as depending on Dworkin's claim that the hypotheses formed by a judge as to the e x i s t i n g law d i r e c t a uniquely correct decision f or every case. Hart f e e l s that the p r i n c i p l e s described by Dworkin are o f an excessively general and abstract nature and that there can be equal g r a v i t a t i o n a l p u l l s f o r decisions i n d i f f e r e n t d i r e c t i o n s . I f this i s so an important tenet of Dworkin's thesis i s undermined. The problem seems to be i n the f a c t that the evaluation of purpose has to be done by the judge, a l b e i t supposedly o b j e c t i v e l y , rather than being evidenced i n the workings of the law i t s e l f . Yet i n Dworkin's thesis the p r i n c i p l e s he describes are l e g a l f a c tors and as such bind the judge. The problem with these p r i n c i p l e s i s that they 43- Hart, (1961) at 128. 44. Hart, Law i n the Perspective of Philosophy, 1776 - 1976, (1976) H.Y. Univ. Law School Bicentennial Conference. - 128 -are c h a r a c t e r i s t i c a l l y vague. In the a l t e r n a t i v e we have the view that though purposes may do a great deal to del i m i t j u d i c i a l freedom of ac t i o n , they cannot completely eradicate or oust the area of d i s c r e t i o n . G o t t l e i h i s a proponent of this view. As he sees i t the choice between purposes occurs i n r e l a t i o n to the a p p l i c a t i o n of ru l e s to s p e c i f i c cases and i s necessitated i n three s i t u a t i o n s which we may summarize as follows: f i r s t l y , where the case i s penumbral; secondly, where a p p l i c a t i o n of the rule would be inappropriate with regard to i t s purposes or those of other rules of the system; and f i n a l l y , when rules compete recourse should be had to t h e i r purposes to determine the 4-5 outcome. ^ He says: i "In such circumstances i t i s necessary to consider purposes, i n the sense that f a i l u r e to do so would lead to inconsistent r e s u l t s i n the a p p l i c a t i o n of ru l e s and the disregard of t h e i r e s s e n t i a l c h a r a c t e r i s t i c of purposiveness." 46 However, where i t i s more d i f f i c u l t to discern what the goals of p a r t i c u l a r r u l e s are G o t t l e i b states t h a t , i n consequence, the scope of d i s c r e t i o n i s widened as the guidance afforded by purpose i s l e s s r e l i a b l e . At thi s point, therefore, we enter the kind of area of d i s c r e t i o n described by Hart. This i s a s i g n i f i c a n t point to note as i t i s t h i s that distinguishes the causal theory. There, goals function i n a much t i g h t e r , systematic way and are argued to eliminate the need f o r r e s o r t to d i s c r e t i o n even i n the hard cases. Purpose may also be us e f u l i n del i n e a t i n g a d i s t i n c t i o n between r u l e s and commands. G o t t l e i b points out that the concept of an order does not i n f e r that the r e c i p i e n t of the order can look a t i t i n terms of i t s 45. G o t t l e i b a t 113. 46. ID. at 113. - 129 -purposes. Only the commander i s concerned with those. In the majority of instances t h i s i s very l i k e l y so, of course, though i t should be borne i n mind that i f someone i s given an order to do something and there i s a hindrance to c a r r y i n g i t out or doing so would not achieve the object of the order, then purpose becomes relevant. A l l s o c i a l p r actices are purposive to some extent. Nevertheless, the d i s t i n c t i o n i s s t i l l a u s e f u l one. G o t t l e i b states that i n the case of rules goals are 47 relevant at two l e v e l s , i n r e l a t i o n to l e g i s l a t i o n and to a p p l i c a t i o n to s p e c i f i c cases. In connection with t h i s he makes an i n t e r e s t i n g point to the e f f e c t that when a l e g i s l a t o r makes a rule i t i s proper f o r him mainly to consider the goal of that r u l e . But, i n applying that rule i n the j u d i c i a l sense the goal of the p a r t i c u l a r r u l e at issue must be considered i n terms of the r e s u l t s of i t s a p p l i c a t i o n on the whole A8 system of goals. Thus, we see that G o t t l e i b conceives of goals or purposes i n t e r a c t i n g i n a kind of system, but i t appears to be a somewhat loosely k n i t and unstructured system. With regard to the causal theory, however, structure is one of i t s primary c h a r a c t e r i s t i c s i n r e l a t i o n to goals. The crux of the matter i s whether i t i s , i n r e a l i t y , possible to do this s u c c e s s f u l l y enough to represent a genuine advance on Gottleib'STviewpoint. H I . The f i n a l major use of goals that we s h a l l consider i s as a t e s t of relevancy. This aspect of goals i s c l o s e l y r e l a t e d to the operation of precedents within the law and. forms a very important part of the causal 47. ID. at 112 48. ID. at 116 - 130 -theory. We have seen that goals are incorporated into the law as higher-order or p r i o r i t y s e t t l i n g rules which allow judges to determine even hard cases i n a predictable way. In most cases there w i l l be some precedents a v a i l a b l e i n which some f a c t s are s i m i l a r to those of 49 the case at hand. When a judge selects which precedent to apply he i s , i n e f f e c t , formulating a new r u l e . Thus, there i s a necessity f o r a generative r u l e to enable t h i s to be done. This has been set out i n the form of a p r i n c i p l e of formal j u s t i c e i n the following way:-"Any judgements made i n regard to a p a r t i c u l a r s i t u a t i o n , that a p a r t i c u l a r person i s or i s not l e g a l l y obligated to do a p a r t i c u l a r act, l o g i c a l l y e n t a i l s that the judgement instances a rule of law such that anyone i n a r e l e v a n t l y s i m i l a r s i t u a t i o n i s or i s not l e g a l l y obligated to do the same act." 50 But to apply t h i s r u l e a c r i t e r i o n of relevancy i s needed and the goal matrix can supply t h i s : -"Relevancy i s measured i n terms of outcome. A f a c t i s relevant i n a case i f i t "bears a cause-effect r e l a t i o n s h i p with the s i t u a t i o n which has led to the l i t i g a t i o n . " 51 A judge, therefore, has to decide which f a c t s of a precedent are relevant to.the case at hand and i n doing this he must consider whether those fa c t s are relevant to the goals behind the p a r t i c u l a r law. Many ru l e s f u r n i s h t h e i r own c r i t e r i a of relevancy. We noted previously that c e r t a i n Acts d i r e c t e d towards consumer protection set out fa c t o r s that should be taken into account. 49. J.C. Smith, Legal Obligation (Toronto: Un i v e r s i t y of Toronto Press, 1976) at 176. 50. IIK at 177. 51. ID. at 180 52. See, SUPRA, Footnotes 53 & 54 at.P .94'. - 131 -I t i s important to note that goals, i n this respect, do not fun c t i o n as something to be weighed or balanced against other indeterminate 53 standards, but as guides to the a p p l i c a t i o n of r u l e s . The r u l e of relevancy does not act as a g r a v i t a t i o n a l force towards "desired outcomes" i n the Lasswell/IWcDougal sense or towards a U t i l i t a r i a n s o l u t i o n of cases. I t s function i s to indicate which l i n e of precedents should be followed, i n accordance with the goals of the law. The Coval/Smith view b a s i c a l l y seeks to challenge the technique so f a r adopted of applying the precedent i n i s o l a t i o n from t e l e o l o g i c a l considerations and then introducing p o l i c y f a c t o r s l a t e r to determine the outcome where the p o s i t i o n i s unclear. Their model, i n contrast, aims to e s t a b l i s h teleology as an i n d i v i s i b l e adjunct of r a l e and precedent. I t i s this use of goals that i s the most structured and p r a c t i c a l to apply. I t forms the ra t i o n a l e f o r the goal matrix that, i t must be emphasised, orders goals i n t r i n s i c a l l y not e x t r i n s i c a l l y i n any U t i l i t a r i a n or "weighting" sense. 6. EXAMPLES To conclude t h i s section a f a i r l y d e t a i l e d examination of two recent, somewhat c o n t r o v e r s i a l E n g l i s h cases w i l l be conducted as they provide instances where the role of purpose may be c l e a r l y i l l u s t r a t e d . 53. Professor Smith states the rule of relevancy as fo l l o w s : "When a case C l a r i s e s having some facts i d e n t i c a l with some f a c t s i n Precedent PI and other f a c t s i d e n t i c a l with some f a c t s i n Precedent P2 and the a p p l i c a t i o n of PI would lead to d i f f e r e n t r e s u l t s from those that would follow the a p p l i c a t i o n of P2, C l w i l l f a l l under the precedent which, i f followed, w i l l , when u n i v e r s a l i z e d as a ru l e of law, bring about, because of the presence of s i m i l a r f a c t s , the most desirable consequences i n terms of the teleology of the l e g a l system". Legal Obligation, at 185. - 132 -54 The case of Froom v. Butcher concerned the issue of whether a p l a i n t i f f who has suffered i n j u r i e s i n a road accident as a r e s u l t of the defendant's negligence should he penalised for contributory negligence because of a f a i l u r e to wear a seatbelt or a crash-helmet. In the above case the p l a i n t i f f suffered i n j u r i e s that could have been avoided had he been wearing the seat-belt. He said that he believed that he was safer by not wearing the b e l t . The judge a t f i r s t instance held that he was not g u i l t y of contributory negligence and awarded him damages. The defendant appealed. In previous decisions i n the lower courts there was considerable c o n f l i c t of opinion amongst the judges about whether damages, i n such circumstances, should or should not be reduced. Lord Denning M.R. b r i e f l y surveyed the scope of these previous decisions which covered a d i v e r s i t y of f a c t - s i t u a t i o n s . He noted that the relevant l e g i s l a t i o n i s contained i n ss. l ( l ) and 4 of the Law Reform (Contributory Negligence) Act 1945«"^ Contributory negligence i s a man's lack o f care i n attending to his own safety. He also noted that the innocent p l a i n t i f f i s i n no way to blame f o r the accident i n the majority of cases and that i t may seem wrong to penalise him i n this way. However, to Lord Denning, the issue i n the seat-belt cases was 54. (1975) 3 A l l . E.R., 520. 55. The Law Reform (Contributory Negligence) Act, 1945> C.28. s . l ( l ) "Where any person suf f e r s damage as the r e s u l t p a r t l y of h i s own f a u l t and p a r t l y of the f a u l t of any other person or persons, a claim i n respect of that damage s h a l l not be defeated by reason of the f a u l t of the person s u f f e r i n g the damage, but the damages recoverable i n respect thereof s h a l l be reduced to such extent as the court thinks just and equitable having regard to the claimant's share i n the r e s p o n s i b i l i t y f o r the damage..." s . 4 " " f a u l t " means negligence, breach of statutory duty or other act or omission which gives r i s e to a l i a b i l i t y i n t o r t or would, apart from t h i s Act, give r i s e to the defence of contributory negligence." - 133 -not ?fhat caused the accident so much as what caused the damage. In consequence, the p l a i t u t i f f must hear some of the l o s s . I t i s 56 compulsory f o r vehicles to he f i t t e d with seat-belts and, thus, i t would seem that the l e g i s l a t u r e thought i t sensible to use them but t h i s usage i s not compulsory: "Everyone i s free to wear i t or not, as he pleases. Free i n this sense, that i f he does not wear i t , he i s f r e e from any penalty by the magistrates. Free i n the sense that everyone i s free to run h i s head against a b r i c k w a l l , i f he pleases. He can do i t i f he l i k e s without being punished by the law. But i t i s not a sensible thing to do. I f he does i t , i t i s h i s own f a u l t ; and he has only himself to thank f o r the consequences." 57 The Highway Code recommends the use of seat-belts and a large body of evidence supports t h e i r e f f i c a c y . In the judgement at f i r s t instance, Wield J . had deferred to the f a c t that some people honestly and f i r m l y believe the chances of i n j u r y are lessened by not wearing the b e l t . He d i d not f e e l j u s t i f i e d i n i n t e r f e r i n g with an i n d i v i d u a l ' s freedom of choice i n the matter by imposing a penalty. Lord Denning, on the other hand, disagreed; "In determining r e s p o n s i b i l i t y , the law eliminates the personal equation. I t takes no notice of the views of the p a r t i c u l a r i n d i v i d u a l ; or of others l i k e him. I t requires everyone to exercise a l l such precautions as a man of ordinary prudence would observe..." 58 So, although the negligent driver i s c h i e f l y responsible, i f the injured person might have avoided injury or suffered l e s s serious i n j u r i e s by wearing a s e a t - b e l t , he must also bear some share of r e s p o n s i b i l i t y i n the matter. Accordingly, the p l a i n t i f f ' s damages were reduced by' twenty-five per cent. But i n cases where i t can be shown that the i n j u r i e s would have been as bad i n any event, damages should not be reduced. 56. Motor Vehicles (Construction and Use) Regulations 1973, (SI 1973 Wo.24). 57. Per Lord Denning M.R., at 525. 58. Per Lord Denning M.R., at 526. - 134 -Thus, exceptions apart (for example, i n the case of a pregnant woman), a l l persons have a duty to take reasonable precautions f o r t h e i r own safety by wearing a b e l t . The law does not accept the excuse that a person thought i t would be dangerous to do so, or that the journey was a "low-risk" one, or that the person was simply f o r g e t f u l . On th i s a n a l y s i s i t i s cl e a r that the goal of the preservation of l i f e i s to take precedence over the i n d i v i d u a l ' s freedom of choice with regard to the wearing of seat-belts. The law i s not removing this freedom of choice, however, but i s imposing a c e r t a i n sanction i n order to encourage people to take s u f f i c i e n t measures to preserve t h e i r own safety. I t may be said that contributory negligence, i n r e l a t i o n to motor accidents, i s a greater burden to the p l a i n t i f f than i s negligence to the defendant as the l a t t e r r a r e l y pays, ( i n f i n a n c i a l terms at l e a s t ) . 59 Nevertheless, as one commentator has suggested, the tor t of negligence serves not only to compensate, but also to "discourage unreasonable behaviour by making ( i n theory) those who are g u i l t y of i t pay f o r i t " . ^ Even though carelessness of this s o r t may only harm the person g u i l t y of i t - "... h i s injury i s bound to cause some undesirable s o c i a l d i s l o c a t i o n , and i t i s therefore a proper object of the law to discourage t h i s sort of carelessness as w e l l . " ^ In this d e c i s i o n we can see that the situa t i o n s where an exception may 59- J.R. Spencer, B e l t Up.' - The Widening Scope of Contributory Negligence. (1976) C.L.J. 44. 60. ITn at 46. 61. ID. at 46. - 135 -a r i s e are f a i r l y l i m i t e d . In the case of a pregnant woman, f o r example, Exception 2 of the causal theory would apply; i n other words, greater i n j u r y i s very l i k e l y to r e s u l t from wearing a se a t - b e l t , so i t would be unjust to penalise a person s u f f e r i n g i n j u r y i n th i s s i t u a t i o n . The other case that we s h a l l discuss i s Re D. ^ In th i s case I), a g i r l , was born with a condition that r e s u l t e d i n some degree o f mental retardation. D was not s e r i o u s l y backward but had some behavioural problems inc l u d i n g a tendency to show violence to other c h i l d r e n . She was sent to a s p e c i a l school and evidenced signs of improvement. One doctor confirmed that t h i s would continue. D's mother, howeyer, d i d not accept that any such improvement had taken place or would do so i n the future. One Doctor G, who had taken considerable i n t e r e s t i n D's case, agreed and he believed that she would be unable to care f o r h e r s e l f or any children she might have. But i t was accepted that D had s u f f i c i e n t mental capacity to marry i n due course. D's mother was gravely concerned that i f D were seduced and had a c h i l d i t would be abnormal or deformed. Dr. G thought t h i s was a p o s s i b i l i t y . Accordingly, when D reached puberty at the age of ten he agreed to s t e r i l i s e her without waiting u n t i l she was ol d e r . Before the operation could be c a r r i e d out other concerned persons challenged the s o c i a l and behavioural reasons f o r performing such an operation and a p p l i c a t i o n was made to make D a ward of court i n order to delay or prevent the carrying out of the operation. In this case, then, we may summarize the major issues as being:-62. (1976) 1 A l l E.R. 326. - 136 -1. The r i g h t to do what one wishes with one's own body -i n t h i s case, the r i g h t of a woman to reproduce. 2. The aim of preventing future s u f f e r i n g by reason of the p o s s i b i l i t y of the b i r t h of deformed c h i l d r e n . 3. The concern f o r the o v e r a l l welfare of the c h i l d . 4. Respecting the wishes o f the parent. The judge i n t h i s case stated that; "The type of operation proposed i s one which involves the deprivation of a basic human r i g h t , namely the r i g h t of a woman to reproduce, and therefore i t would, i f performed on a woman f o r non-therapeutic reasons and without her consent, be a v i o l a t i o n of such r i g h t . " 63 C l e a r l y , at the age of ten, the c h i l d was not able to give an informed consent. In a d d i t i o n , i t was conclusively stated that although parents' wishes w i l l not be superseded l i g h t l y , i n t h i s s i t u a t i o n the welfare of the c h i l d must take p r i o r i t y . In D's case there was no adequate medical or s o c i a l j u s t i f i c a t i o n f o r such an operation and i t was suggested that, g e n e r a l l y , there would only be very rare circumstances where such a step would be permissible. D should have the opportunity to make her own choice l a t e r on. The orderings of goals i n this case we have now mat e r i a l that w i l l form nature, should one a r i s e . therefore become quite c l e a r and a precedent f o r the next case of this 63. Per Eeilbr o n J . , at 332. - 137 -7. EVALUATION - THE CAUSAL THEORY RE-EXAMINED Prom a survey of much of the writing that has been done i n the area of j u d i c i a l reasoning and the use of purpose, something that i s s t r i k i n g i n r e l a t i o n to posited theories i s that s i m p l i c i t y of concepts and p r e c i s i o n i s most e f f e c t i v e i n explaining the problems therein. In h i s a r t i c l e the Model of Rules, Dworkin made a very penetrating analysis of some of the d e f i c i e n c i e s of the p o s i t i v i s t p o s i t i o n . However, i n h i s Later writings the same forcefulness and c l a r i t y of argument does not appear. The r i g h t s t h e s i s , with i t s complex and elaborate c l a s s i f i c a t i o n s of the various kinds of r i g h t s loses i t s impact as a r e s u l t of the p r o l i f e r a t i o n of terms and d e f i n i t i o n s . In the end there i s a p r e v a i l i n g impression that, i n order to make p r a c t i c a l use of the p r i n c i p l e s described, indeed, even to discern what they are with a s u f f i c i e n t degree of c l a r i t y , involves a t r u l y mammoth task. In a d d i t i o n , Dworkin !s insistence on the t o t a l e l i m i n a t i o n of an area of d i s c r e t i o n i s rather doubtful - p a r t i c u l a r l y as he seems to deny that there may be equally powerful reasons f o r deciding a case i n a number of ways leading to d i f f e r e n t end r e s u l t s . The p o s i t i v i s t p o s i t i o n may be a more r e a l i s t i c one i n this respect. I t acknowledges that p r i n c i p l e s and p o l i c i e s e x i s t f o r the guidance of the judge but does not attempt to specify the nature or i d e n t i t y of these standards. One of the ideas contained i n the causal theory i s that the number of l e g a l concepts used should be kept to a minimum. In presenting r u l e s and goals i n a structure that i s usable i n determining cases this i s p l a i n l y an advantage. Arguably, there is a p o s s i b i l i t y of a danger of o v e r - s i m p l i f i c a t i o n , but this may be p a r a l l e l e d by the considerable d i f f i c u l t i e s inherent i n e s t a b l i s h i n g c l e a r l i n e s of demarcation between " p r i n c i p l e s , p o l i c i e s and other sorts of standards". - 138 -Another crucial feature of the causal theory is its avoidance of disjunctivism in the law. The majority of the other theories tend to assume that we must, at some point, choose between the (a) and (b) - type goals. The causal theory does not accept this as an inevitability and attempts to set out a system by which we can preserve both sorts of goals. The orderings of goals within the matrix provide inferences by which the judge can act to decide outcomes of cases. It has been observed that in some situations i t will be very difficult to ascertain what the particular orderings are because the law has not yet crystallized with regard to certain novel developments. Yet, i f this is so i t is equally true of Dworkin's model and of any other system so far devised. However, the causal theory does offer some guidance on the conditions that may cause the orderings to alter. This is a very important factor. In the words of Coval and Smith: "Every rule, in implementing its goal or goals, gives priority to that goal over the goals of other rules of law which must be modified, limited or treated as exceptions when the new rule comes into force." 64 This characteristic of rules enables us to see how the "open texture" of those rules may be rendered less indeterminate. In discussing this topic Hart states that in certain areas of human action i t is impossible to formulate a rule to cover a l l conceivable circumstances and hence the standard of "reasonableness" is introduced. It is then the task of the judge to weigh up the claims involved and concretize that variable standard in each case. He cites as a specific example the standard of due care in negligence. Hart derives two objectives of that standard, which are; 64. Coval and Smith, The Supreme Court and a Hew Jurisprudence for Canada, (1975) December The Canadian Bar Review, 819, at 827. - 139 -a) precautions taken should avert substantial harm; and, b) the precautions are such that the burden of taking them 65 does not involve a s a c r i f i c e of other important i n t e r e s t s . But, as he points out, no one can f o r e t e l l what combinations of f a c t s may a r i s e and how these w i l l r e f l e c t on the precautions taken and the int e r e s t s a t stake. As Hart says, "Hence i t i s that we are unable to consider, before p a r t i c u l a r cases a r i s e , p r e c i s e l y what s a c r i f i c e or compromise of i n t e r e s t s or values we wish to make i n order to reduce the r i s k of harm. Again, our aim of securing people against- harm i s indeterminate t i l l we put i t i n conjunction with, or test i t against, p o s s i b i l i t i e s which only experience w i l l bring before us; when i t does, then we have to face a dec i s i o n which w i l l , when made, render our aim pro tanto determinate." 66 This s u c c i n c t l y summarizes the p o s i t i o n . What the causal theory does with regard to this problem i s to o f f e r the anomaly-solving rules f o r resolving the problem posed by a new combination of f a c t s . The c r u c i a l point here i s that these mechanisms are r a l e - l i k e i n nature and thus the d e c i s i o n which renders our aim determinate i s not a d i s c r e t i o n a r y one. The four exceptions described i n the theory seem to have the p o t e n t i a l to cover most imaginable s i t u a t i o n s where the cause-effect r e l a t i o n s h i p breaks down - without e n t a i l i n g any p r i o r knowledge of the fa c t u a l circumstances. I t i s possible that Exceptions 3 and 4 could be collapsed under one heading as the kind of s i t u a t i o n s contemplated by them are f a i r l y c l o s e l y r e l a t e d . The process undertaken, then, i n j u d i c i a l reasoning i s e s s e n t i a l l y d i f f e r e n t to Hart's concept of judges or o f f i c i a l s " s t r i k i n g 67 a balance between competing i n t e r e s t s " . The causal theory describes 65. Hart, (1961) at 129. 66. ID^ at 129 67 ID. at 132 - 140 -i t thus, "Whether or not the goal of one law i s more or less important than the goal or goals of another law i s not a matter of d i s c r e t i o n . I t i s not to be determined by balancing or weighing i n t e r e s t s . I t depends e n t i r e l y on how the law i t s e l f has ordered such goals." 68 This system also represents what amounts to a common-sense r e s o l u t i o n of problems that may a r i s e xrtiich avoids lengthy and often unhelpful debates about in t e r p r e t a t i o n s of statutes. Obviously, there w i l l he l i m i t a t i o n s on our a b i l i t y to f i n d and use orderings for many cases, but i f we can use goals to solve a number of hard cases i t i s an approach worth pursuing. For example, i n Chapter I I we noted the instance of squatters taking over private residences egen where such were occupied by householders who may only have been temporarily, absent. The lav/ appeared to be s i n g u l a r l y unhelpful on t h i s problem a t f i r s t glance, but i f we look a t i t from the aspect of the causal theory a f a i r s o l u t i o n may seem more r e a d i l y evident. Let b"*- represent - the r i g h t to be secure from unwarranted intrusions on property. 2 b - the r i g h t to seek she l t e r i n any unoccupied property at the relevant time, b - The r i g h t to u n r e s t r i c t e d enjoyment of private property. b^ - the r i g h t to adequate housing. 1 3 4 I f we place b_ we w i l l obtain b and a large degree of b . . 2 2 4 But, b_ w i l l give b (of a s o r t ) , but a s i g n i f i c a n t l y reduced degree o f b . 68. Coval and Smith, The Supreme Court and a Hew Jurisprudence f o r Canada, (1975) December The Canadian Bar Review 819, at 829. - 141 -The l a s t formulation would seriously detrace from h^ i n that people would lose a considerable degree of protection f o r t h e i r homes and s e c u r i t y . A r i g h t to housing becomes meaningless i f , i n a s s e r t i n g that r i g h t , others are e f f e c t i v e l y deprived of i t . In contrast, the example of the r i g h t to picket i s one where r i g h t s of enjoyment of private property may be subjugated to the goal of f a c i l i t a t i n g 69 e f f e c t i v e c o l l e c t i v e bargaining. However, the topic of matrimonial property i n the f i e l d of family law i s an example of an area where the goals and orderings are hard to determine. To be s p e c i f i c , one p a r t i c u l a r problem l i e s i n the issue of whether a spouse who has no r e g i s t r a b l e i n t e r e s t i n property should be allov/ed to obtain a p o r t i o n of that property by some reasons o f j u s t i c e or equity. A l l kinds of nice questions a r i s e as to intentions of the p a r t i e s and nature of the contributions ( i f any) made by the p a r t i e s . The problem came before the courts i n a number of cases and eventually the Matrimonial Proceedings 70 and Property Act 1970 was passed. In the case of Wachtel v. Wachtel' Lord Denning M.R. expounded his view that sections 2 to 5 of that Act e f f e c t e d a s i g n i f i c a n t change i n the substantive law. He f e l t that i t gave the courts power to order transfers o f assets and was not merely a c o d i f i c a t i o n of the e x i s t i n g law. He s a i d , "We regard the provisions of ss. 2,3,4 and 5 of the 1970 Act as designed to accord to the courts the widest possible powers i n readjusting the f i n a n c i a l p o s i t i o n o f the p a r t i e s and to a f f o r d the courts the necessary machinery to that end..." 71 69. See, Harrison v Carswell, (1975), 75 CLLC 14, 286, at 15, 306., and see, Coval and Smith, The Supreme Court and a New Jurisprudence f o r Canada, f o r a discussion of t h i s case, SUPRA, Footnote 68, p.lAQ. 70. (1973) 1 A l l E.R. 829 71. Per Lord Denning M.R., at 836. - 142 -Thus, i t would seem that t r a d i t i o n a l property r i g h t s can he modified with 72 regard to matrimonial property, or "family assets" i n order to do ju s t i c e i n the circumstances of various cases. Yet there are s t i l l considerable d i f f i c u l t i e s i n applying the law i n t h i s area and i t may be that when deciding whether to e f f e c t a transf e r between spouses the judge i s a c t u a l l y r e l y i n g on his own judgement as to whether such i s des i r a b l e . Despite these kinds of d i f f i c u l t i e s the use of goals and the inference o f orderings does o f f e r a new method of looking a t hard cases. I t supplies a mechanism that we can adopt to analyse cases and j u d i c i a l reasoning that i s i n t e r e s t i n g , i n one sense, simply because i t i s possible to see how i t may be used. The Dworkin model set out i n "Hard Cases" i s , on the other hand, very hard to u t i l i s e as a r e s u l t of i t s abstraction. I t i s possible when viewing law as a unity as described by the causal theory, to pick out and discover where orderings i n regard to p a r t i c u l a r goals have been established c o n s i s t e n t l y . Coval and Smith conclude that, "... once laws are seen as embodying goals, and once these goals are seen as systematically r e l a t e d by previous l e g i s l a t i o n and de c i s i o n , we have a v a i l a b l e an enormously r i c h and probably wise bank of f u l l y authorised p o l i c y decisions which we cannot overlook." 73 Very few s o c i a l p r a c t i c e s are without any objective and thus, i n examining the causal r e l a t i o n s h i p between a rule and i t s goal we can see how to deal with eKeeptions to r u l e s , that i s , where the intended aim cannot be achieved f o r some reason. We can, i n e f f e c t , see how the law operates when "things go wrong" in a p r a c t i c e . Purpose then, may be a more p r o f i t a b l e and f e r t i l e source f o r i n v e s t i g a t i o n than an overly-zelous concern with the rules of our system alone. 72. A term used by Lord Denning, see Fribrance v. fribra n c e (1957) 1 A l l E.R. 357^  at 360; and Waohtel v. Vlachtel (1973) 1 A l l E.R. 829. 73. Coval and Smith, The Supreme Court and a Hew Jurisprudence f o r Canada, - 143 -J2 CONCLUSION Purpose and goals have great p o t e n t i a l as a means of deciding how cases are to he adjudicated. We have considered a number of theories of and about using goals i n t h i s way and the basic difference between them i s found i n the degree to which t h e i r use i s s t r u c t u r a l . Goals provide a very r i c h and expansive background against which to r a t i o n a l i s e the operation of rules i n our system. I t would seem i l l o g i c a l to i n s i s t that the iaw i s neutral as to goals, f o r otherwise there would seem to be l i t t l e point i n having a l e g a l system a t a l l i f we were not t r y i n g to achieve some objectives f o r society. I n a d d i t i o n , by discovering goals i n the law - though not n e c e s s a r i l y the goal of the whole system of law, we can t a l k about practices being misused or abused, whereas i f the l e g a l system i s n e u t r a l as to content we cannot do so. Previous considerations of the role of purpose i n the law have tended to take one of two d i r e c t i o n s . ?/riters such as Hughes and Dworkin have focussed t h e i r a t t e n t i o n c h i e f l y on the uses of purpose, whereas the a l t e r n a t i v e approach adopted by those of the Pound/Stone t r a d i t i o n i s concerned with making a c l a s s i f i c a t i o n of the purposes or i n t e r e s t e x i stant i n society. But i f purpose i s to be used i n a p r a c t i c a l manner i n the determination of disputes, or a c l e a r e r idea of the extent to which such use i s r e a l l y f e a s i b l e i s to be obtained, then these two f i e l d s of enquiry must be merged. In attempting to draw up a catalogue of what constitute the goals of the l e g a l system we are, i n turn, given a more precise impression of how purpose i n general a c t u a l l y functions within that system. The primary d i f f i c u l t y that a r i s e s i n doing this i s that there i s always a r i s k that - 144 -the c l a s s i f i c a t i o n adopted may he u n r e a l i s t i c or d i s t o r t e d . Thus, we return to the problem that was mentioned e a r l i e r of e s t a b l i s h i n g the i d e n t i t y of the goals themselves. C l e a r l y , much of the content and d i r e c t i o n of the law w i l l be decided by the predominant p o l i t i c a l influences i n s o c i e t y . But the aims of those i n power may not be i d e n t i c a l with the goals of the l e g a l system. Indeed, this should not be so i n an open society. The l e g a l system should, i d e a l l y , be independent of any state agency or government control and should be free to decide disputes i n a manner contrary to the wishes of the p o l i t i c a l l y powerful. For instance, the law may act to p r o h i b i t excessive government secrecy i n the i n t e r e s t s of the a c c e s s i b i l i t y of the public to information that concerns them.''' The question that i s most important i n r e l a t i o n to our consideration of the role of purpose i n law concerns the degree to which i t can be u t i l i s e d to l i m i t the area of j u d i c i a l d i s c r e t i o n i n the making of decisions. In t h i s essay we have examined the whole gamut of opinions on t h i s issue and i t only remains to give some d e l i b e r a t i o n to the matter of which theory may provide the best answer to the above question. At one end of the scale we have the view of Hart that purpose and goals are fundamentally e x t r a - l e g a l factors that come into play when the r u l e s f a i l to supply c l e a r guidance to a judge. The area of d i s c r e t i o n i s thus very wide and i t i s d i f f i c u l t to challenge decisions i n hard cases because of the r e l a t i v e indeterminacy o f the "guidance" provided by purpose. Although i n one sense Dworkin may be s a i d to be, i n a t t i t u d e , at the other end of the spectrum to Hart, the causal theory of Coval and Smith goes even further away from the p o s i t i v i s t t r a d i t i o n . Dworkin, 1. See, The Crossman D i a r i e s Case, Supra Footnotes 15 and 16 at 73 - 145 -as we have seen, denies that there i s any room for a judge to exercise d i s c r e t i o n as h i s freedom of a c t i o n i n t h i s respect i s completely f e t t e r e d by a complex array of p r i n c i p l e s and p o l i c i e s . Yet, these p r i n c i p l e s are not r u l e - l i k e i n nature or function although they are asserted to be " l e g a l " . In contrast, we have seen that the Coval/Smith p o s i t i o n i s that such fa c t o r s are both l e g a l and r u l e - l i k e i n character. I t i s the l a t t e r q u a l i t y that i s paramount to t h e i r thesis as i t provides the basis f o r the view of the l e g a l system as a highly structured, c l o s e l y k n i t e n t i t y that leaves l i t t l e leeway f o r judges to r e s o r t to the exercise of d i s c r e t i o n i n deciding cases. I t i s thought that the p o s i t i v i s t view i s inadequate, to explain the operation of the j u d i c i a l d e c i s i o n but although Dworkin's thesis i s f e l t to be an advance, i t i s somewhat disappointing f o r i t s i n a b i l i t y to be used i n a p r a c t i c a l way. Dworkin's web of p r i n c i p l e s and p o l i c i e s and other standards constituted i n h i s theory seems to be too abstract and based upon too many uncertain assumptions about the capacity of judges to formulate the kind of philosophy necessary to use i t . However, thi s c r i t i c i s m may be a p p l i c a b l e , i n some measure, to the causal theory too. For a judge to use the goal matrix i n reaching a d e c i s i o n necessitates that he should have a conception i n mind of just what the matrix i s i n nature. Although i t should be possible f o r a judge to eradicate personal bias from his decision i n most cases - e s p e c i a l l y the clear-cut ones, when confronted by a t y p i c a l hard case where the goals involved are probably not very c l e a r , i t seems o p t i m i s t i c to expect that he, w i l l remain t o t a l l y objective and w i l l look only to the law f o r guidance. I r o n i c a l l y i t i s i n those circumstances that the law w i l l be l e a s t h e l p f u l . But t h i s i s not to say - 146 -that we have immediately regressed to the p o s i t i o n of being, once more, i n the area of pure d i s c r e t i o n . In a great many cases a l o g i c a l s o l u t i o n does become obvious as a r e s u l t of looking.at the goals involved, (the Kitson case provides a good example). The problems ar i s e when th i s exercise affords us no help due to a " p r o l i f e r a t i o n of purposes". P o s s i b l y , such an extreme s i t u a t i o n where an examination of the goals involved i s f u t i l e v / i l l r a r e l y crop up. Yet we cannot ignore the f a c t that i t may do so. In this respect the theory of G o t t l e i b i s e s p e c i a l l y valuable as o f f e r i n g a v i a b l e a l t e r n a t i v e to the theories of Dworkin and Coval and Smith. Gottleib's theory, as we have seen, i s closer to that of Soval and Smith possibly than any other. He gives a very i n t e r e s t i n g exposition of the way i n which purpose functions i n the l e g a l system and concludes that the r o l e i t plays i s a h i g h l y important one. Purposes are conceived of as being i n t e r s t i t i a l l y l i n k e d together within the l e g a l system and as operating upon the d e c i s i o n process i n a h i g h l y p o s i t i v e way. However, the occasional vagueness of purpose means to G o t t l e i b that i t i s impossible to eliminate the area of d i s c r e t i o n altogether. What i s c l e a r i s that only when some s o r t of goal c l a s s i f i c a t i o n i s formulated can we begin genuinely to test a theory of the function of purpose within the law and l e g a l d e c i s i o n . Howasuccessful purpose w i l l be i n i n d i c a t i n g a corr e c t s o l u t i o n to a judge i s obviously a matter of degree. Thus, i f v/e have a catalogue o f a kind from which to work there i s a better chance of a r r i v i n g at an evaluation on this subject. At l e a s t we v / i l l be able to assess 2. See, supra Footnote 42 a t 126 - 147 -how f a r we can go i n using purpose and i n c i d e n t a l l y narrowing or e l i m i n a t i n g d i s c r e t i o n as such. But the goal c l a s s i f i c a t i o n i s just the beginning. From embarking on the task of drawing up a possible goal c l a s s i f i c a t i o n i t has been observed that i t i s frequently d i f f i c u l t to determine purpose i n a number of cases, or to e s t a b l i s h that a purpose i s s t a b l e . YiThat has emerged too i s that goals do often give us a l o g i c a l , common-sense method of analysing even some hard cases that can be a p p l i e d i n j u d i c i a l decision-making with the e f f e c t of l i m i t i n g the area of d i s c r e t i o n . A p i t f a l l to be avoided though i s that of unconsciously using goals i n what may be termed as an " a r t i f i c i a l " manner, that i s , by a t t r i b u t i n g purposes or aims to rules that appear to s u i t the relevant case but which may be over-subjective. Where purposes are vague i t i s preferable to recognise the f a c t . Possibly, however, other goals of the system may give p o s i t i v e help i n determining the goal of the rule i n question i n a p a r t i c u l a r case. This i s the value of regarding the structure of goals as a whole e n t i t y . At this stage, therefore, i t i s not possible to foresee how f a r the goal matrix can go i n providing us with s u f f i c i e n t guidance to reduce the ambit of j u d i c i a l d i s c r e t i o n i n toto, and so i t i s thought that there must be some reservations held about the a b i l i t y of purpose to d i r e c t us towards a proper s o l u t i o n i n every case. In f a c t , t h i s would be expecting too much of purpose which may often be, as G o t t l e i b points out, indeterminate and - 148 -vroolly. Nevertheless, the p o t e n t i a l o f using goals i n the decision process i s very great. What has to be seen i s whether the vagueness of purpose leaves open to uncertainty a s i g n i f i c a n t area i n the j u d i c i a l reasoning process that must be d i s c r e t i o n a r y and i s not regulated by the operation of r u l e s . - 149 -BIBLIOGRAPHY Bryan, /M.W., The Grossman Dia r i e s - Developments In The Law of  Breach of Confidence (1976) 92 Law Quarterly Review 180. V " Coval, S.C. and Smith, J.C., The Causal Theory of Law (1977) 3 6(i) Cambridge Law Journal 110. Coval, S.C. and Smith, J.C., Some S t r u c t u r a l Properties of Legal  Decisions (1973) 32 Cambridge Law Journal 81. d'Entreves, A.P., Natural Law (London: Hutchinson, 1951) de Smith, S.A., C o n s t i t u t i o n a l and Administrative Law (London: Butterworth's, 1971) Devlin, Pv, The Enforcement of Morals (Oxford: Oxford U n i v e r s i t y Press, 1965) Dias, Jurisprudence (3rd ed., London: Butterworth's, 1970) Dicey, A.V., The Law of the Constitution (10th ed. E.C.S. 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