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For long it has been the received opinion
that judges filled in the gaps left by rules by using their discretion.
Positivistic jurisprudence from Austin to Hart placed strong emphasis on the
part played by judges in the exercise of their discretion. "In these cases it is
clear", Hart has said, "that the rule-making authority must exercise
discretion, and there is no possibility of treating the question raised by the
various cases as if there were one uniquely correct answer to be found, as
distinct from an answer which is a reasonable compromise between many
conflicting interests". A competing view was espoused by the realists who placed
absolute emphasis on the discretion of judges and relegated the
"rules" to an
obscure position. Earlier, little attention was paid to the analysis of
discretion. However, a determined effort has been made lately by Ronald Dworkin,
who has cast serious doubts on the orthodox opinion and has emerged as the
principal opponent of Hart. Dworkin's views have posed a sustained challenge to
the positivist account and have received critical acclaim by leading jurists of
the world.
In 1345, an English lawyer argued to the court,
"I think you will do as others
have done in the same case, or else we do not know what the law is." "It is the
will of the Justices," said Judge Hillary. Chief Justice Stonore broke in: "No;
law is that which is right". This controversy between the two judges is
still ranging after six and a half centuries. In modern terms, the problem can
be phrased in order to know exactly what part do judges play in the development
of law; "Do Judges Make or Declare Law".
Argument to this paper concentrates on the belief that in
"hard cases" judges
can and do create new law. In the paper, it seems that there are clear
indications that judges do indeed create new law where, for example, existing
laws have become outdated or inappropriate. This thesis essentially stems from
the views of the famous common law theorist, Hart, a legal positivist who sees
the fusion of primary and secondary rules as being the determinant of what later
becomes known as a legal system. But another thinker, Dworkin, is vehemently
against the law making power of the judges. For him, there is no law beyond
The La”. The law is a seamless web in which there will always be a right answer.
This paper will analyse the philosophical Hart-Dworkin debate on adjudication
taking Raz also with them and then apply it to the practical life in the Indian
context to conclude that judges make law out of what they discover in the legal
field.
This paper will proceed to answer two questions:
1. Is it possible to reach on a consensus on judge’s role through a
philosophical way?
2. Assuming that judges don’t make law; then is it always possible to declare
law?
First question:
How Do Judges Make Law? What opportunities do judges have to be creative? These
are the questions, which the philosophers have in the back of their mind while
talking about the judge’s role during adjudication. It is said that judges make
new law or so-called creative especially in two fields:
1. In the development of the Common Law and,
2. In the interpretation of Statutes
Nevertheless, their freedom is restricted by the rules of precedent and the
supremacy of Parliament & by the rules of precedent and the rules of statutory
interpretation.
Judicial Precedent: The application
of precedent by judges, whether they are developing the common law (for e.g. in
areas such as negligence or murder), or interpreting statutes is the main
mechanism whereby judges make law. Occasionally, judges are called upon to give
a ruling or make a decision when faced with a situation for which there seems to
be no precedent or any guiding rule. In these circumstances, judges can be said
to be formulating original precedent. Thus, it is the judge’s role to use his
own discretion regarding when he thinks rules need to be applied, changed,
improved, or abolished. For this reason, although Hart sees the function of law
as being one of a system of rules, he maintains a firm belief that where there
are gaps in the system judges should use their own
discretion when applying the law. Hart believes that because statutes and common
law rules are often too vague and unclear it is often inevitable in "hard cases" for a judge to create new law. He talks about
the open texture of law means that are, indeed, areas of conduct where courts or
officials striking a balance, in the light of circumstances, between competing
interests, which vary in weight from case to case, must leave much to be
developed.
But according to Dworkin,
principles are essential elements in deciding these
types of hard cases. He seeks to argue that in all cases a structure of legal
principles stands behind and informs the applicable rules. Principles control
the interpretation of rules. Rules derive their meaning from principles. Judges,
through the rules of precedent, merely discover and declare the existing law and
never make ‘new’ law. A judge makes a decision, ‘not according to his own
private judgment, but according to the known laws and customs of the land; not
delegated to pronounce a new law, but to maintain and expound the old one’. He
is against the judge made law mainly because of two objections. The first argues
that elected representatives who are responsible to the people should govern a
community and when judges make law it will be an encroachment on legislative
power. The second argues that if a judge makes new law and applies it
retroactively in the case before him, then the losing party will be punished,
not because he violated some duty he had, but rather a new duty created after
the event. Countering Dworkin’s first argument, Hart says that judge’s power is
subject to many constraints narrowing his choice and judge’s power are exercised
only to dispose of particular instant cases; he cannot use these to introduce
large-scale reforms or new codes. Even though if they make new law, it is in
accordance with principles or underpinning, reasons recognized as already have a
footing in the existing law. This indeed is the very nucleus of the "constructive interpretation" which is so prominent feature of Dworkin’s theory
of adjudication.
Dworkin also talks about the discretion but
for him judge’s choices are within the constraints of judgment, which he called
as weak discretion. Dworkin does not deny the need
for weak discretion but he denies the existence of strong
judicial discretion. Judges do not make law because the existing law provides
all the resources for their decisions. A judge does not decide a case in a legal
vacuum but on the basis of existing rules, which express, and, at the same time,
are informed by, underlying legal principles. The task of the judge faced with a
hard case is, therefore, to understand what decision is required by the whole
doctrinal structure of existing law.
Regarding Dworkin’s second criticism, Hart says that this objection seems quite
irrelevant in hard cases since these are cases, which the law has left
incompletely regulated, and where there is no known state of clear established
law to justify expectations.
It’s true that in every legal system, a large and important field is left open
for the exercise of discretion by courts in rendering initially vague standards
determinate, in resolving the uncertainties of statutes, or in developing and
qualifying rules only broadly communicated by authoritative precedents.
Nonetheless, these activities, important and insufficiently studied though they
are, must not disguise the fact that both the framework within which they take
place and their chief end product is one of general rules. These are rules the
application of which individuals can see for themselves in case after case,
without further recourse to official direction or discretion.
According to Hart, law in the area of open texture is a guarded prediction of
what the courts will do. Even if the rules are clear to all, the statement of it
may often be made in the form of a prediction of the court’s decision. But the
important thing to be noted here is that the basis for such prediction is the
knowledge that the courts regard legal rules not as predictions, but as
standards to be followed in decision, determinate enough, in spite of their open
texture, to limit, though not to exclude, their discretion.
Judges do not generally, when legal rules fail to determine a unique result,
intrude their personal preferences or blindly choose among alternatives; and
when words like choice and discretion,
or phrases such as creative
activity and interstitial legislation are used to describe decisions, these
do not mean that courts do decide arbitrarily without elaborating reasons for
their decisions. And in case if there is any arbitrariness then legislature is
always there to negate it down.
According to Raz, also, courts do develop the law; they do not as political
agents but by working out the implications of internal legal considerations.
Courts in developing the law do not give expression to their personal views, nor
do they reflect external social or political forces. Rather, they unravel the
spirit of the law, unfold its hidden force and reveal its meaning. He says that
judges can make the law even when precedent binds them by distinguishing it with
the previous decision but this is very restricted form of law making subjected
to two crucial conditions. Firstly, the modified rule must be the rule laid down
in the precedent restricted by the addition of a further condition for its
application and secondly, the modified rule must be such as to justify the order
made in the precedent. The judge’s obligation is to adopt only that modification
which will best improve the rule. In the exercise of their law-making power the
courts should- within the legally imposed restrictions act by adopting the best
rules they can find. They may make a new rule in a decision, which he thinks is
a purely law-applying decision.
Thus on the basis of the above debate, discussion can be boiled down to the
point that judges declare the law and the question of their making law can be
defended by saying that their invention is merely discovery of law within the
existing precedents and principles. Limited choice cannot be termed as absolute
power; it is just a weak discretion, as Dworkin will say it, constrained with
certain limitations. Hart’s open texture of law is also not enjoying the freedom
from legal constraints; they have to also take guidance from the legal rules
considering them their standard. Same with Raz too.
But is it always possible to declare law, taking into consideration about our
practical life situation. This leads us to our second question.
Second Question:
I blieve that we must do away with 'the childish fiction' that law is not
made by the judiciary. - Sabyasachi Mukharji, C.J.
In C. Ravichandran Iyer v. Justice A.M. Bhattacharjee , the court said that the
role of the judge is not merely to interpret the law but also to lay new norms
of law and to mould the law to suit the changing social and economic scenario to
make the ideals enshrined in the Constitution meaningful and a reality. The
society demands active judicial roles which formerly were considered exceptional
but now a routine.
In S. P. Gupta v. President of India
the court observed: The interpretation of every statutory
provision must keep pace with changing concept's and values and it must, to the
extent to which its language permits or rather does not prohibit, suffer
adjustments through judicial interpretation so as to accord with the
requirements of the fast changing society which is undergoing rapid social and
economic transformation.
The court also went on to say that:
"....law does not operate in a vacuum. It is therefore intended to serve a social
purpose and it cannot be interpreted without taking into account the social,
economic and political setting in which it is intended to operate. It is here
that the Judge is called upon to perform a creative function.
He has to inject
flesh and blood in the dry skeleton provided by the legislature and by a process
of dynamic interpretation, invest, it with a meaning which will harmonise the
law with the prevailing concepts and values and make it an effective instrument
for delivery of justice."
It is clear from the above statements that, not only constitutional
interpretation, but also statutes have to be interpreted with the changing times
and it is here that the creative role of the judge appears, thus the judge
clearly contributes to the process of legal development.
The courts do not always follow the
precedent blindly and do not always consider themselves bound by the given
principles. The court does evolve new principles. However, the courts do always
have to follow within the limits of the constitution and they cannot exceed the
constitutional limits. "When new
societal conditions and factual situations demand the Judges to speak, they,
without professing the tradition of judicial lock-jaw, must speak out."
Also, in M.C. Mehta v. Union of India (Shriram - Oleum Gas)
the court said that
with the development and fast changing society the law cannot remain static and
that the law has to develop its own new principles.
The above decision reflects that the courts do make law, they frame new
principles; interpret the statutes and the constitution with the changing times.
Justification:
"The courts must not shy away from discharging their
constitutional obligation to protect and enforce human rights of the citizens
and while acting within the bounds of law must always rise to the occasion as
‘guardians of the constitution’, criticism of judicial activism notwithstanding"
It has been accepted that judges filled the gaps left by rulers, by using their
discretion. Austin accepted the utility of legislation by judges. He says:
"I cannot understand how any person who had considered the subject can suppose
that society could possibly have gone on if judges had not legislated, or that
there is any danger whatever in allowing them that power which they have in fact
exercised, to make up for the negligence or the incapacity of the avowed
legislator."
The realists also emphasised the paramountcy of the judge’s discretion. They
argued that judges did make law. The focus of realism was on decision-making.
They argued that legal concepts and rules were often indeterminate and rarely as
neutral as they were presented to be. Adjudication can rarely be seen as a
mechanical logical deduction from general premises. In some cases, there remains
a gap between the general propositions or the statute couched in general terms
and the result of particular cases. The realist argued that ‘public policy’
considerations play a major role in the determination of cases.
In his book Law’s Empire , Dworkin has depicted the position of an imaginary
judge, Justice Hercules and his constitutional interpretation and the power of
judicial review. On the issue of passivism and activism, his judge achieves a
balance. He will not always defer to judgement of the elected officials,
irrespective of the scheme of the constitution. Thus, he will protect democracy
and the rights of the minorities instead of yielding to what the majority’s
representatives think is right. However, he will defer to the opinion of the
legislature when he thinks that the issue is one of policy rather than
principle.
A law when enacted, in spite of the best effort and capacity of the legislator,
cannot visualise all possible situations in the future to which that law
requires application. New situations develop and the law has to be interpreted
for the purpose of application to them. That is the area or field of judicial
creativity to fill in the gap between the existing law and the law as it ought
to be.The judges have to be alive to the reality that as society changes, the norms
acceptable to society also change, and that while discharging the constitutional
duties, they have to develop the law on those lines. Judicial activism in India
encompasses an area of legislative vacuum in the field of human rights and it
reinforces the strength of democracy.
An argument is given that the interpretation should be limited to what the
constitution makers actually intended. However, it has been questioned whether
the word or expression must mean the same thing at all times regardless of times
or circumstances? The court has observed that the interpretation of the
constitution only on the basis of what the original framers intended, would not
be correct, for there may have been various situations that could not have been
foreseen at that point of time, there may be issues that may not have been fully
discussed, and there may even be issues that were left as controversial. It has
also been submitted that such an interpretation and confining oneself only to
that interpretation would amount to killing the constitution and be ‘wedded to
the status quo’.
Directions by the courts
The limits that are on these directions as the courts have said are that these
do not amount to stepping into the shoes of the legislature and that the
guidelines given by them are only to operate till the legislature steps in to
make a law.
However, this is not to say that the courts can do what they want. There has to
be a mean found between too much activism and too little activism. The former
might lead to a imperilling the legitimacy of judicial power and the latter may
lead to neglect or under enforcement of the constitutional obligation of
achieving and protecting the rights of the citizens, ensuring good governance
and achieving the constitutional goals. ‘Judicial activism’ should not become
‘judicial adventurism’ and lead a judge going in pursuit of his own notions of
justice, ignoring the limits of the law.
The courts do not and should not hesitate in
giving effect to the ‘constitutional policy’ i.e. equality, socio-economic
justice, liberal interpretation and recognition of rights of the individuals
giving effect to a more meaningful life etc.
An important point that is to be emphasised is that, since the judiciary is
exercising such a powerful role, it should be more open to criticism and the
contempt power should be used only rarely. Otherwise, it will reflect on the
judiciary as a dictator.
According to Dworkin, judges have a duty to use some principles but not others,
or to assign a given weight to one principle but not a greater weight, it
follows that Dworkin himself is committed to the idea that there is a
fundamental test for law. That Dworkinian theory itself depends upon some notion
of a basic rule of recognition.
In response to this objection, Dworkin asserts that Hart's theory of the rule of
recognition does not simply claim that there is a criterion distinguishing law
from non-law. Hart must claim, according to Dworkin, that laws are identified by
pedigree and not by content, that is, a rule counts as law not because it is
just or fair (a matter of its content) but because it has been laid down in a
statute or established in a case (a matter of source or pedigree). Hart says
that the whole point of having a rule of recognition is to provide a body of
publicly ascertainable rules, in the sense that we can work out what the rules
are without falling back on our value judgments about justice or right (moral)
which, according to Dworkin, only makes sense if the rule of recognition
identifies the law by criteria of pedigree. If the rule of recognition said
something like "all those rules which are just are legal rules", it would
provide no greater certainty than do our differing views of justice. Legal
principles are not identified by their pedigree in that it is not necessary that
a principle should have been laid down in a statute or a case. In his own words
:
"... a principle is a principle of law if it figures in the soundest theory of
law that can be provided as a justification for the explicit substantive and
institutional rules of the jurisdiction in question".
By this Dworkin means that the judge who formulates a legal principle for the
first time does so as an existing part of the law and not as a legislative
innovation of his own. In general, principles are identified by showing that
they are embedded in the established rules and decisions, in the sense that the
principle provides a suitable justification for the black-letter rules. Dworkin
describes a hypothetical judge, called Hercules who, while deciding a hard case
begins by constructing a theory of law applicable to his jurisdiction. This
theory of law will consist of an elaborate moral and political justification of
the legal rules and institutions of the jurisdiction. Thus while dealing with
settled rules about, for example, legislative supremacy, Hercules will need to
work out a body of principles that will justify these rules. He must ask, "what
moral principles would serve to justify the doctrine of legislative supremacy".
This will inevitably require an elaborate consideration of the moral and
political theory that seems to form the basis of the rules about legislative
supremacy. Now, the criterion that, according to Dworkin, distinguishes a legal
from a non-legal principle is that a principle can be a legal principle if it
forms a part of the theory of law that can be offered as a justification for the
established legal rules and institutions. Dworkin says that constructing such a
theory is inevitably a controversial matter involving complex issues of moral
and political theory. But it differs fundamentally from the process of
identifying laws by reference to their sources as envisaged by Hart. According
to Hart's theory, we identify valid rules by reference to the basic rules of
recognition, but the basic rule of recognition is identified by reference to the
empirical facts of official behaviour. In this way, the content of the law can
be established by a purely empirical inquiry, without asking any controversial
moral questions. But this assumes that a judge, called upon to apply a rule by
reference to the rule of recognition, will apply the rules accepted by his
fellow judges. This is fundamentally different from the position of Hercules who
must decide for himself which body of principles provides the best justification
for the established laws. This is broadly the position that Dworkin takes
against Hart's rule of recognition.
It is felt, however, that the Dworkinian assertion about positivists holding
that law must be identified by tests of pedigree only rests on a rather narrow
reading of Hart's theory. Hart, while talking about a rule of recognition
conclusively validating legal rules, deals specifically with the hypothetical
transformation of a "pre-legal" community into one having a legal system. He
says that the introduction of a rule of recognition provides a public test for
identifying primary rules of obligation which earlier existed only by general
acceptance, and thus eliminates uncertainty about them. Hart's language
emphasizes the elimination of uncertainty and nowhere does he suggest that the
tests employed by officials must be logically conclusive. It is submitted that Dworkin's claim that positivists are preoccupied with the pedigree and are
consequently blind to tests of rules based on content may be true of Austin, but
it does not appear true of Hart. Hart holds that it is not necessary that a rule
must satisfy particular moral standards to be a legally valid rule; but does the
fact that qualification by virtue of "content" need not occur mean that it
cannot occur? Let us take an example from the Indian legal system where judges
determine the validity of enacted rules by considering their compatibility with
the provisions of the Constitution. The Constitution requires interpretation,
and some of its parts, for example, Articles 14, 19 and 21 are understood in
moral terms also, such as fairness, reasonableness and equality. It is standard
practice for officials (judges) to engage in moral reasoning when interpreting
these provisions and thus determining what is to count as law. This reasoning
involves the sensitive matter of identification and weighing of diverse
considerations. But is it incompatible with Hart's theory of the rule of
recognition? I feel that it is not so. Of course, the rule of recognition, being
a touchstone for the validity of legal rules, does not dictate or control their
"content". At the same time, however, it does not eliminate the scope for
applying tests that are not tests solely of pedigree. It is reiterated that just
because qualification by virtue of "content" need not occur in Hart's theory, it
does not necessarily entail that such qualification cannot occur or does not
occur when the judges engage in moral reasoning.
Now if we turn our attention on the doctrine of judicial discretion. Dworkin
seems to suggest not only that principles eliminate some indeterminacies in the
law but also that they eliminate all indeterminacies, for he rejects entirely
the idea of judicial discretion. He appears to assume that anyone who accepts
the idea of judicial discretion cannot acknowledge the existence of legal
principles at all, or must hold that principles cannot eliminate uncertainties
because they are to be weighed against each other. But can his conclusion that
principles eliminate all indeterminacies be validly drawn? The author feels that
the answer can only be in the negative. In order to eliminate all
indeterminacies in the law, principles must cover all cases that might arise.
Further, they must have determinable weights. Thirdly, the balancing process in
which principles are weighed against each other must never yield an equal weight
to conflicting principles on either side of a legal question. It is only when
all these conditions are satisfied that we can countenance the total rejection
of judicial discretion. There is no reason why one cannot acknowledge the
existence of legal principles without believing that such principles eliminate
all indeterminacies and with them any occasion for the exercise of judicial
discretion.
One last point about Dworkin's critique of positivism: let us suppose that his
judge Hercules is faced with a hard case on contract. Now let us further suppose
that there are many well-established rules relating to consideration in
contract: somewhat like the Indian law on contracts according to which promises
are not binding, except in some exceptional cases, unless supported by
consideration. Hercules will now have to construct a theory of contract i.e. a
justification for the established rules of contract law, giving an account of
the conception of justice on which (in Hercules's opinion) contract law is
based. Now let us further assume that Hercules holds the personal, "moral"
viewpoint that all promises must be held to be binding, regardless of
consideration. That no one should be allowed to dishonour a promise only because
such a promise was not supported by consideration. But can Hercules's theory
treat as mistakes all legal rules stipulating that promises are not binding
without a consideration? The answer again, can only be in the negative, for
according to Dworkin, Hercules's theory will have to provide a justification for
existing black-letter rules. He may perhaps treat a couple of them as mistakes
but he cannot reject the entire body of rules, and therefore he will have to
link the binding nature of contracts to the existence of consideration. Now, is
there then not a difference between Hercules's view of what morality requires
and of what the law requires? Does it not follow that the Dworkinian theory is
perfectly consistent with the "separation of law and morals" or the distinction
between what the law "is" and what it "ought to be", as asserted by positivists?
What has been pointed out by the author does create problems for Dworkin, but it
does not lead to the conclusion drawn by him, namely that the Dworkinian theory
is consistent with the "separation of law and morals". The point of divide
between Dworkin and positivists is whether there are any necessary connections
between law and morals viz. whether law can be law if it is immoral or amoral.
What the learned author has pointed out, and which creates serious problems for
Dworkin, is that it may be hard for Hercules to determine what is law in a given
situation because there may be a plurality of views as to what the moral answer
is in that situation. This is so since according to Dworkin law is law only if
it is morally legitimate but if there are many moral answers and some
directly at odds with each other, how are we to know what is morally legitimate
(and hence law)? But this does not make Dworkin a positivist. What has been
pointed out by the author raises non-trivial philosophical issues that Dworkin
must face since he must take a stand on the ontological nature of moral truth;
and it would seem that Dworkin's theory of what is law can only work if moral
truth is objective. But the ontological nature of moral truth is (one of) the
most spiritedly disputed and unsettled issues in philosophy.
The Hart-Dworkin debate taking Raz with them on the judicial role during
adjudication, which boils down to almost same point that judges used to declare
law with a little discretion in the legal world itself during hard cases.
However, when I have move to the real life situation in terms of case law I
found that it is not always possible to declare law. Therefore, there is a need
for a midway to define the judge’s role. I am concluding this paper by saying
that judges used to declare law by making it while discovering it within the
domain of legal world.
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The author can be reached at :
AashishSrivastava@legalserviceindia.com
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