Adjudication and the Law

Oxford Journal of Legal Studies

Volumn 27, Issue 2, 2007, Pages 311-326

  Endicott, Timothy ^a  

^a BALLIOL COLLEGE   (United Kingdom)

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[No Author keywords available]

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EID: 34547109892     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqm007     Document Type: Article

References (50)

1. See especially The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994) at 57.
2. Various writers have explained why, including Ronald Dworkin: See his discussion of the distinction between concurrent and conventional morality in Taking Rights Seriously, 2nd ed. (London: Duckworth, 1977) at 51-3.
3. Perhaps the most straightforward and devastating argument against Hart's explanation of social rules is Joseph Raz's account of the 'fatal defects' in the foundations of Hart's theory of law: Practical Reason and Norms, 2nd ed. (Princeton: Princeton University Press, 1990) at 53-8.
4. A lecture given at Oxford University in February 2001, published in a revised form as 'Hart's Postscript and the Character of Political Philosophy' (2004) 24 OJLS at 1-37.
5. Thee lecture became Ch. 6 of Dworkin, Justice in Robes (Cambridge, MA, Harvard University Press, 2006).
6. Ibid at 4.
7. Ibid
8. The Concept of Law, above n 1 at 269
9. quoted ibid at 4.
10. Dworkin, above n 3 at 4.
11. Ibid at 20.
12. Ibid at 4.
13. The same will be true if the law gives the court the power to dispense her from a legal requirement without making any rule; but I will discuss changes in the law, rather than dispensations from it.
14. Perhaps all that can be said generally is said by John Finnis in his discussion of the ways in which the legal system 'systematically restricts' the feedback of considerations 'from the justificatory level of straightforward practical reasonableness back into the level of practice', Natural Law and Natural Rights (1980), at 312.
15. The Concept of Law, above n 1, at 135.
16. Dworkin, above n 3 at 4.
17. Ibid.
18. Ibid at 32.
19. Ibid.
20. Remember that on Dworkin's own view, a judge might find that Mrs Sorenson has no legal right to a remedy (above n 3 at 4; see earlier discussion) - in which case a judge who found it intolerable that Mrs Sorenson should have no remedy, would have to ignore legality'. Such a judge would presumably face a crisis in the tension between justice and integrity, discussed in Law's Empire (Cambridge, MA: Harvard University Press. 1986) 177, and might have to abandon the 'interpretive attitude'.
21. As Dworkin points out (above n 3 at 24):'...the value of legality - or, as it is sometimes more grandly called, the rule of law...'.
22. Dworkin, above n 3 at 24.
23. It is a mistake, for example positive exercise of that power, and also demands control of many forms of private action).
24. Above n 3 at 32
25. cf. 'It is central to legality that a government's executive decisions be guided and justified by standards already in place, rather than by new ones up ex post facto...' (above n 3 at 35).
26. a 19.
27. For discussion of this sense of arbitrariness, see T. Endicott, 'The Reason of the Law', (2003) 48 American Journal of Jurisprudence 83-106 at 90-5.
28. Above n 3 at 4.
29. Unless the court's action displayed a lack of respect for the rule of law in some special way, e.g. if a lower court contravened a rule that only higher courts have power to overrule the precedent in question.
30. Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), at 271.
31. John Finnis, 'Natural Law: The Classical Tradition', in Jules Coleman and Scott Shapiro (ed.), Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002) 1-60, at 10-11.
32. Cf. Joseph Raz, The Authority of Law (1979) at 97: 'the distinction between applying an existing law and applying a new one is seen 10 be more a difference of degree than of kind'.
33. Compare the following judicial statement of the ambiguity: 'The common law, which in a constitutional context includes judicially developed equity, covers everything which is not covered by statute. It knows no gaps: There can be no "casus omissus." The function of the court is to decide the case before it, even though the decision may require the extension or adaptation of a principle or in some cases the creation of new law to meet the justice of the case. But, whatever the court decides to do, it starts Win a baseline a existing principle and seeks a solution consistent with or analogous to a principle or principles already recognised.' McLoughlin v O'Brian [1983] 1 AC 410, Lord Scarman at 429-30. Like Finnis, Lord Scarman suggests that the court must in some cases create new law, and yet there are no gaps (so that in another sense, he implies, the court does not create new law).
34. Dworkin, above n 3 at 4.
35. It seems that she does, because Dworkin mentions (above n 3 at 4) that in Mrs Sorenson's jurisdiction, a principle may be 'firmly embedded in precedent'. But it is not very important whether she is in a common law jurisdiction; in other systems too there can be judicial customs of the kind discussed in the text subsequently.
36. But in any legal system, that responsibility is restricted. The rule of law is against judges resolving every case purely on grounds of justice, because of the arbitrariness of trusting the parties to the judges in a way that would bring no order to their varying notions of justice, and would leave the process open to mere abuse. Cf. the restrictions that legal systems put on judicial law-making discussed in the text at above n 6.
37. Compare Dworkin's phrase, 'stipulated a moral standard' (above n 3 at 20), or the following recent statement of the 'positivism' that Dworkin attributes to Hart: 'A classic form of that theory of law holds that a community's law consists only of what its lawmaking officials have declared to be the law, so that it is a mistake to suppose that some nonpositive force or agency...can be a source of law unless lawmaking officials have declared it to be.' Ronald Dworkin, 'Thirty Years On' (2002) 115 Harvard Law Review 1655. In fact, no form of any theory has ever held that the law consists of what law-making officials have declared to be the law.
38. Above n 3 at 23.
39. The Concept of Law, above n 1 at 269.
40. So that they will not, e.g. act on grounds of justice that are inconsistent with their doctrine of precedent or with the separation of powers between the courts and the legislature. See above n 29.
41. The Concept of Law, above n 1, at 254.
42. That statement of Hart's is discussed is John Eekelaar, 'Judges and Citizens: Two Conceptions of Law' (2002) 22 OJLS 497 at 508,
43. and Brian Leiter, 'Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis' in Jules Coleman (ed.), Hart's Postcript (Oxford: Oxford University Press, 2001) 355, 362.
44. Ibid 253.
45. Ibid 253-4.
46. Hart ought to have said 'a rule of recognition or a rule of law'.
47. The Concept of Law, above n 1, at 250.
48. The statement is awkward because no provision is 'soft positivist'; perhaps that is why Hart put the phrase in quotation marks. A provision that some right or liability depends on a moral consideration is interpreted by a 'Soft positivist' theory as incorporating that consideration as a legal test of validity.
49. The Concept of Law, above n 1, at 250.
50. I say 'might' because we know so little of the law of her jurisdiction.