Justifying Legal Decisions in Hard Cases: Different Approaches

This fuller account of legal decision-making emerges as consistent with the account of law as ‘institutional fact’ that MacCormick developed under the idea of an Institutional Theory of Law (ITL) in association with Ota Weinberger. Within that ‘institutional’ theory of law, MacCormick (1986) claimed to provide an ontological basis for the analysis of all social action, including law. There, they adopted the theory of institutional facts as set out by G.E.M Anscombe (1958) and John Searle (1969), drawing on their observations that there are some entities that seem to exist in the world independent of our frameworks of thought, will and judgement, which they call ‘brute facts’, and others which appear not to exist in this way; for example, a goal in a football match. We cannot point to any physical thing or event and say that it, bare and simple, is a goal, and yet we do, nonetheless, talk intelligibly about a goal. Searle called these facts ‘institutional facts’, since they ‘are indeed facts; but their existence, unlike the existence of brute facts, presupposes the existence of certain human institutions’ (Searle 1969: 51).

Institutional facts, then, are explicable given these overarching institutions and exist within their systemic framework. They might be tied to specific physical acts or events but they are not identical with these physical events. Much depends on Searle’s distinction between regulative rules and constitutive rules. Whereas a constitutive rule might define what constitutes a goal, a regulative rule would specify what one does next after a goal has been scored. The objects that together make up the physical setting for the football match assume a new form of existence in them being interpreted in terms of these constitutive and regulative rules.

The existence of an institution as such is relative to a given legal system, and depends upon whether or not that system contains an appropriate set of institutive, consequential and terminative rules. If it does, then the occurrence of given events or the performance of given acts has by virtue of the rules the effect of bringing into being an instance of the institution.

(MacCormick 1978: 66)

So we can envisage such institutions as being ‘structured by legal rules’ (MacCormick 1988: 76), and:

[t]his way of conceptualising the matter … makes clear the diachronic quality … of our legal arrangements, by virtue of the way it separates or ‘individuates’ institutive and terminative rules … ‘Instances of institutions’ exist in the eye of the law … from the moment of an institutive event until the occurrence of a terminative event.

And this, in turn:

makes clear the way in which … ‘momentary legal information’ connects logically with ‘diachronic legal information’. Diachronic information concerns standing arrangements … [from which] one can derive by deduction the momentary consequential duties, liberties and powers one has in respect of the given arrangement.

(MacCormick 1988: 79)

To explain how all of this relates to the practical decision-making setting, MacCormick recounts two familiar stories, the shrewd and penetrating judgement of King Solomon in 1 Kings 3: 16–28, in respect of the competing claims of two women to motherhood of a single child, and the death of Cleopatra. He begins this analysis by juxtaposing the Solomonic judgement and the decision of the Court of Appeal in Re A: ‘the phenomenon of conjoined twins … can [easily] pose issues quite as awful as the king’s sword’ (MacCormick 2006: 15). For instance, imagine that before some contemporary tribunal we have established the rule that ‘children should be under the custody of their natural mothers’ and, together with this, we have also developed some ‘reliable evidentiary (DNA) test’. In this event, we will immediately have translated Solomon’s skilful achievement into ‘a routine practice’, albeit that ‘the real world will always be capable of throwing up surprises’. However, the point is that as soon as the application of law is problematised in this way then the issues raised must be addressed and then the most immediate issue becomes that of how to do this (MacCormick 2006: 5).

Suppose we were to regard King Solomon’s method as a model for our judgement, offers MacCormick. On this basis, we might also consider it right to posit some form of instinctive or intuitive awareness that will enable us to latch on to the particulars of the instant case to indicate the response that the rules fail to provide and, in that situation, our answer in the present case might well be thought of as providing a precedent for future cases. But a precedent can only ever be an analogy for a new decision: no two sets of events are ever exactly the same. In these circumstances, our intuition might also tell us that it would be right to have a rule and to treat the instant case as a rule-case. Nonetheless, unusual and unexpected cases will still appear and force us to ask whether our rule permits a different interpretation or if all of the facts are classified correctly. In this way, we are now beginning to ‘problematize the rule’s applicability to the case in hand’, understanding it as ‘a case of first impression’ and directing our intuitive judgement once more towards its unique particularity. Within such a scenario, quips MacCormick, every judge will require ‘to be possessed of some small share of Solomon’s wisdom’! (MacCormick 2006: 6).

maximized opportunities [for] careful attention to all points of a problem situation, and that gave decision-making tasks to appropriate persons … endowed both with adequate attentiveness to detail and with a fairminded readiness to make no decision till in possession of all relevant reasons in any particular case.

(MacCormick 2006: 10)

But does such intuition exist? MacCormick suggests that Adam Smith’s model of the ideal, fully informed, impartial spectator may provide the best example of how to go beyond our immediate reaction to a situation towards one that represents a ‘rationalized response to the whole of a situation in all its particularity’. But he also notes that any fully developed moral agent who is ‘capable of giving allegiance to moral rules … derived from generalizing responses to recurring types of cases’ will inevitably also belong to a community, the members of which offer allegiance to such rules. In that case, any such ‘fully refined moral capacity’ could exist only as a result of ‘a more unrefined attachment to rules of a heteronomous character’ so that deciding according to rules is not inconsistent with deciding in some ‘deeper way that confronts the whole complexity of real-life situations’. Thus, it would be wrong to overemphasize the particularistic aspects of decision-making, especially when rationalized according to Smith (MacCormick 2006: 12–13).

Causes are always particular, says MacCormick, and, inasmuch as we are able to discern ‘sets of like cause-and-effect series, we may be able to establish inductive generalizations from them’. However, just because:

… one particular has been shown to cause another particular would be no proof that anything else has ever caused, is now causing or will ever again cause any other thing … At the level of … observation of particulars, we never observe anything. We may see the snake biting, we may see the queen dying. But we do not see this bite causing this death. And if we did … , that would be no ground at all for supposing that every such bite will be a cause of death.

(MacCormick 2006: 18)

Therefore, the relationship between particulars and generalisations is one of ‘potential falsification’ and any ‘explanatory hypothesis’ will need to ‘be capable of forming a consistent part of a coherent general theory’. In other words:

what enables us to conceptualise the death of Cleopatra is that the particular fact of the snake biting belongs as minor premise in an argument of which the major premise is a hypothesis culled from the snake-venom theory and the conclusion is the death

(MacCormick 2006: 19)

Merely to affirm that reasons for actions are particular and factual does not prove that the connection is not a ‘relevant universal’; on the contrary, to justify an act is to demonstrate that ‘upon any objective view of the matter, the act ought to have been done … given the character of the act and the circumstances of the case’. Just so, for any reason to be a justifying reason it must indicate ‘the generic nature of the act and the generic circumstances of action’ and, as soon as these are provided, ‘an implicit principle – universal in terms – is revealed’. In this way, justifying reasons are ‘conceptually distinct’ from both explanatory and motivating reasons:

There is no justification without universalization; motivation needs no universalization; but explanation requires generalization. For particular facts – or particular motives – to be justifying reasons they have to be subsumable under a relevant principle of action universally stated.

(MacCormick 2006: 21)

In this sense, law can never deliver the reasons to justify a decision. It always comes too late to inform the moment of its occurrence. In this sense, in the terms stated previously, law is always the observation of a trace left behind, a multiplicity of points through which a movement has passed, rather than the experienced unity of an action itself. Universalisation may reduce indefinitely the distance that must be bridged but, like the repeated application of a halving rule, without closing the gap: some gap always remains, the distance represented by the question concerning the appropriateness of that universal continuing into these particulars. In fairness to MacCormick, however, universalism is really only seen as doing part of the work here, even if the greater part, and particularism, as in the form of the appeal to consequences, actually concludes the task. At this point, there is always the possibility that the judge will deem the circumstances of the case to present a ‘new problem’. But in the context of decision-making in a hard case, when the rules appear to have run out and the judge is faced with what appears as a new problem, how, given the prior commitment to universalisation, will she recognise the problem as a new one? What provides the cue for her recognising the inappropriateness of applying the universal rule here? How can some particulars that do not register in law as instances of a general rule register as exceptions to it? Given a prior commitment to universalisation, how is it possible that any case might be recognised as not always-already instantiating some general rule?

If the pull to universalise is grounded in a prior commitment to select from among a variety of possibilities only those features that identify a case as always already instantiating a rule then, by definition, choosing some means not choosing others. The issue then is whether those characteristics that are not chosen thereby become invisible in such a way that their exclusion also prevents their reappearance later on, their subsequent registering as significant within the system. Are we not simply brought back once more to a question over the limits of legal possibility?

Michael Detmold’s ‘Particularity Void’: The Moment of Indecision

For Detmold, legal reasoning is practical insofar as it is ‘reasoning towards a decision for or against action’ and his primary concern is with a ‘judge’s practical reasoning towards the action of giving judgment’ (Detmold 1989: 436), what he calls ‘[t]he particularity of adjudication’. He gives the example of someone seeking to acquire judicial office through examination:

I am given a problem to solve consisting of facts A B and C. I work it out and … [m]y conclusion is universal: a defendant in circumstances A B and C must pay damages. But am I right? I check my reasoning and conclude I am right. I finish the exam, content. But … I go to my books after the exam to make sure. Yes … I am sure. I am now sure that I have the answer to the (universal) question …

(Detmold 1989: 455)

Nonetheless, this is still not ‘a practical answer’, argues Detmold. It will become practical only when it becomes particular. But is this merely a matter of waiting for a suitable particular to come along that accords this universal judgement?

In due course I am appointed, he continues, and my first case replicates the case of my exam. As I sit alone in my chambers contemplating judgement, why does my will not unleash itself? It is not that I doubt my conclusion: ‘I remember my reasoning very clearly’. But ‘I now have a radically different problem’, he explains, one ‘which universal (hypothetical) reasoning does not solve’. Indeed, ‘the whole problem is that no reasoning can solve it. It is particular’. It is something of which ‘nothing can be said (anything I say will be universal)’ (Detmold 1989: 456). How might we account for this?

Davout looked up and gazed intently at him. For some seconds they looked at one another, and that look saved Pierre. Apart from conditions of war and law [ABC] that look established human relations between the two men. At that moment an immense number of things passed dimly through both their minds, and they realised they were both children of humanity and were brothers.

(Detmold 1989: 457)

At first, this appears very like universalist reasoning and indeed Tolstoy seems to suggest as much. But for Detmold both the hesitation and the action are deeply significant:

Davout, at the moment of practicality entered the unanswering void of particularity, the realm of love, about which only mystical, poetic things can be said … ; or nothing … Judges enter this realm every day (if only they knew).

(Detmold 1989: 455–57)

In this sense, he claims, those theorists who seek to find through ‘the progressive refinement of the categories of law according to experience’ a means by which to settle these issues are mistaken; in fact, no matter how:

highly defined A B and C are … [the] problem [is] exactly the same … A judgment in respect of A B and C … cannot cross the void … [I]t can justify a judgment … a theoretical/hypothetical … right up to the void. But the final rationality of practical judgement seems in doubt …

(Detmold 1989: 458)

Detmold notes how Neil MacCormick has attempted ‘to reassert that rationality against … particularity’ through a reconsideration of the idea of justification. But, for Detmold:

th[is] act of justification is incapable of solving the problem for it immediately raises the question, why justify? and the answer, like that to the original question, will be ultimately particular, not universal; so it will have its own particularity void.

(Detmold 1989: 459)

More recently, Detmold has elaborated further on the problems of particularity in adjudication identifying two problems, which he characterises as the ‘in-tray’ and the ‘out-tray’: the ‘in-tray’ is the matter of what it is that informs a decision, how it will be justified and the extent to which the informing thing is particular or universal; the ‘out-tray’ is the making of the decision and deciding to whom or to what it applies, the particular or the universal. According to Detmold, all practical judgements are of the out-tray and are radically particular: even though there are clear difficulties with the notion of deciding something about another person’s life, still the common law seeks to address itself to history, an always radically particular history, judging that history.

In other words, it is always a particular person and a particular history that form the basis of the law’s judgement (Detmold 2006: 83–94).

On this view, the gap that we recognised earlier in Re A may be seen to have at least two aspects: first, in terms of the potential asymmetry between addressor and addressee; second, in terms of the void between determination and application. In general, judges only tend to make law conservatively, says Detmold, but ‘the fullness of law as practical reason is achieved when the law that judges apply is law that has crossed the citizen subject void; when law is in a true sense the citizen’s law, when law is common law’ (Detmold 1989: 467).

American Legal Realism and the Critical Legal Studies Movement

‘American Legal Realism was the most important indigenous jurisprudential movement in the United States during the 20th twentieth century’ (Leiter 2003: 50). Indeed:

(Singer 1988: 468)

Essentially, the legal realists argued on three fronts as to why rules alone cannot decide cases and are of limited use in predicting the way that a court will decide: first, legal rules resist any form of mechanical application because they are inherently vague and ambiguous; second, this vagueness and ambiguity means that any case can be read in a number of different ways; third, the resulting indeterminacy of abstract legal concepts leads to a manipulability of precedent through a blurring of the distinction between holding and dictum (ratio and obiter). Effectively, a judge could redefine the holdings in precedent cases to reveal alternative or multiple rules of law capable of governing the outcome in the case before her in different ways.