Is Legal Reasoning Different from Political Reasoning?

	Theory of Law & Justice
Assignment Question:	Is legal reasoning essentially different from the reasoning of politicians? If not, why not? If it is essentially different, in what way is it different? Justify your answer by reference to the views of relevant legal theorists.

Introduction

It is noteworthy that the legal and political systems are fundamentally different in the first place due to the diverse perspectives of the world, and they have developed into two separate entities with their own purposes and model in the society. [1] Therefore, it is unlikely that they share common philosophy and practices. However, like most other disciplines in the society, sometimes law and politics overlap to achieve a common goal, sometimes they complement each other and at other times, they contradict each other. For example, the differentiation of adversaries has no ground in the law and politics dominates over the rule of law when this occurs. [2] Therefore, the goals, philosophy and practices in both systems do not entirely agree, hence reasoning in both systems must be different also.

Tradition view

The conventional view can be described as that political reasoning features consideration to political parties, social movements, public media, the legislature and the government, and politicians create their own normative ideology that defines and guides the behaviour of the society. [3] James defines legal reasoning as an approach employed by legal officials to identify and apply legal rules to circumstances in order to solve legal cases, and that there are unique characteristics of legal reasoning which set it apart to other forms of reasoning, such characteristics include laws and precedents.[4] The key in legal reasoning, according to Sunstein, is that legal officials are uninterested in all-encompassing principles, they disagree on intrinsic values but are authorised with power to produce judicial solutions to multidisciplinary issues based on incomplete theorised agreements. [5] It is not necessary for politicians to consult history and polities set by previously elected political parties, but to follow personal values, moral beliefs and ideology of their political parties, and they can make adjustments to policies or turn them around.[6] The traditional view is that judges, on the other hand, follow the doctrine of stare decisis and the common law tradition. [7] This means that they are bound to make judicial decisions based on three obvious legal reference points, namely the statutes, precedents and other legal resources.[8] It is obvious that under majority of circumstances judges are able to solve court cases consulting these reference points, however there are times when these reference points do not immediately present satisfactory solutions for certain cases. This essay will examine two situations that judges may face in courts, namely, (1) when existing rules are unclear on circumstances not encountered before, and (2) when application of a rule clearly leads to injustice. When these situations arise, can and do judges turn to political reasoning based on own morality, values and beliefs? Can they make adjustments to existing laws and can they make new laws?

Shaping of modern day legal system

The latter question “can judges make adjustments to existing laws and can they make new laws?” sprouts empirical and conceptual answers. Empirical observations is that both politicians and judges have contributed to the shaping of the legal system today, and will continuously shape it as our society changes, just in different ways. [9] Hayek observed that there are two factors in law making: the common law approach and legislation. The common law approach is the bottom-up method facilitated by judges as a result of reactive trial-and-error to achieve justice in the court at ground zero. [10] The legislation is a top-down method of creating laws without gaining public consent. [11] Hayek argues that the common law approach yields gradual and impactful improvement while legislations tend to bring sudden and rapid changes with targeted and short-term outcomes. [12] Therefore, the law does change and that both judges and politicians play a part, only in different geographical locations, time and with different approach. Conceptual answers of how judges should reason in adjudication and to what extent are proposed by different legal theorists, they have strengthened the nature of legal reasoning and the role and authority of judges and these views will be discussed to gain insight to the former question, “can and do judges turn to political reasoning based on own morality, values and beliefs?” in situations (1) when existing rules are unclear on circumstances not encountered before, and (2) when the application of a rule clearly leads to injustice.

Theories of adjudication

The way that legal officials approach in shaping the legal system in courts is proposed by many legal theorists. Due to the fact that legal officials carry out this task in courts using legal reasoning pursuing resolutions on court cases, the approach is termed theories of adjudication by Hart.

Formalism

Formalists answer the question of whether judges should turn to using non-legal principles when the application of a rule clearly leads to injustice in unambiguous cases. Formalists are influenced by democratic values[13] and they make a normative claim that judges should make judicial decisions entirely based on black letter laws whenever it is clear and applicable, regardless if it yields irrational and unmerited outcomes. [14] Formalism has not accounted for cases that are obscure when legal resources exhaust. Atiyah maintains that when straightforward application of law leads to injustice the Parliament is still the only entitled body to change the law.[15] The disadvantage of this approach is apparent that interpreting rigid rules acontextually is a nave activity that neglects the uniqueness of each court case, and formalist judges are criticised for not performing their best duty to achieve justice. [16] One advantage of a formalistic approach illustrated by Wellington is that judges must be neutral towards the decision-making because morality, values and beliefs because these principles are only transient, meaning that they are only best at one point of time and may not be best at another. [17] Similarly, Schauer disapproves allowing judges to deviate from black letter rules when the rules are clearly applicable because judges often makes more mistakes when permitted to interpret and apply clear rules freely. [18] He also emphasises that the realism trend threatens the authority of legal rules and reduces predictability, subjecting the public to uncertainty of whether certain behaviours are lawful or not. [19] Langdell was a formalist whom puts less emphasis on judges always follow clear rules, but promotes that right judicial decisions can be made logically by deductive application of the law to known facts. [20]

Hart’s doctrine of discretion

It is Hart whom distinguished the theory of adjudication apart from theory of law. Hart provides guidance as a positivist to both situations when existing rules are unclear on circumstances not encountered before, and when the application of a rule clearly leads to injustice. Hart terms the first scenario as “easy cases” or “core cases” and the second situation challenges in solving “hard cases” or “penumbra”. [21] He terms this phenomenon as a gap in the law. [22] In easy cases, Hart argues that the linguistic meaning is self-explanatory and no interpretation is needed.[23] Bell terms Hart’s theory of adjudication in hard cases as the “interstitial legislator model”.[24] In hard cases, Hart argues that judges are free to interpret the law to his or her discretion. [25] In fact, he says that judges are obliged to find resources outside of the legal references points when challenged with a penumbral situation when rules do not seem to be applicable immediately or become unclear in their linguistic context.[26] Hart does not rule out that moral principles may be of use in these situations when existing legal references exhaust or become indeterminate, although he maintains that moral principles are not necessarily included in judicial decision-making. [27] However, Hart says that the judges’ discretion is not arbitrary and not without constraints. He or she must practice reasoning similar to politicians when selecting non-legal rules or standards to be used. [28] In making this normative claim, Hart admits that most of the time the result of the judges’ discretion are adjustments of laws in the existing legal framework and not law reforms. [29] Fuller disagrees with the peculiarity between core and penumbra as proposed by Hart and expresses that rules always consist of purposes behind its language and judges are always relying on the purposes to make decisions in so termed ‘easy’ and ‘hard’ cases anyway, there is no need to source reference outside law when solutions are available within law itself.[30] Therefore, it is consistent for and the responsibility of judges to discover meaning behind laws applicable to all cases. [31] Fuller argues that law is not paired with their language but their underlying purposes and that judges intelligently interpret and obey to these purposes. [32] Schauer disagrees about context ambiguity and emphasises that language has acontextual meaning embedded in itself and it is possible that its meaning is communicated effectively without ambiguity to those who share the same language competency, other times it may render to vagueness due to its indeterminacy but not due to its linguistic flaws.[33] He argues that the language of law is frequently sufficient in producing determinate solutions and that even when it is vague it does not suggest immediately that the answer lies elsewhere. [34] Dworkin disagrees with the need of judges to use political reasoning when legal rules do not suffice and that they are creating new laws, they are merely declaring a new way of applying existing laws. [35] He argues that Hart’s permission of judges to make new laws is unfair as defendants are then subjected to new laws retroactively and these new rules hold parties liable without their prior knowledge. [36]

Fuller’s purposive approach

As mentioned above, Fuller rejects Hart’s distinction between easy and hard cases and his claim that rules can be applied as its plain linguistic meaning. [37] Fuller asserts that rules are always identified with their purpose and not by their language, no matter in easy or hard cases. [38] Therefore, for Fuller, when existing rules are unclear on circumstances not encountered before, and when the application of a rule clearly leads to injustice, the straightforward answer is to seek the purposes of the rules and not judge in contrary. Schauer argues that there are still acontextual meanings in rules that can be understood in its plain language by similar group of people. [39] He agrees with Hart that rules maybe obscure generating hard cases and that sometimes judges neglect clear meanings and make mistakes. [40]

Dworkin’s “the rights model”

Dworkin's approach to adjudication is termed “interpretative approach” and its essence lies in his defence of the traditional view regarding the role of judges and his supplement theory that judges are not to make new laws but to identify pre-existing law. [41] His later work, the theory of "law as integrity", aims to fuse positive doctrinal theory and normative theory so that judges interpret the meaning of the law "the best that it can be". [42] Bell terms Dworkin’s theory of adjudication, irrespective of the type of cases faced, as “the rights model”, in which he stresses that judges can develop new principles for existing rules but that the fundamental difference between judges and legislators is that judges focus on people’s rights and the legislators concern public interest. [43] With such focus on people’s rights, the protection of the freedom of individuals is maximised even though the result may not be desirable for public interest. [44] In order to protect the people’s right, Dworkin promotes that judges are entitled to interpret the rules according to their principles, including morality, values and beliefs. As an anti-positivist, he believes that moral principles are necessary behind every rule while agreeing with Hart’s proposed primary and secondary rules. [45] Therefore, Dworkin’s view agrees with Fuller’s ‘purposive approach” that there is no such categorisation of easy and hard case because the approach to adjudication is the same. Dworkin and Fuller claims descriptively that judges in fact do not distinguish their role in adjudication of easy and hard cases, they always interpret, or discover the purpose behind the law according to their best discretion and apply them to cases in new ways. [46] This is also one of his criticisms towards Hart’s interstitial legislator model. Criticisms of Dworkin are included in the remarks about the ideal judge he illustrates, Hercules, is actually making new law in core cases freely as oppose to be drawing legal principles from the rules.[47] The predictability and applicability of Dworkin’s theory is also challenged because of the judges’ free adjudication and the fact that most cases are of the easy kind.[48] Finnis criticises Dworkin similar to Wellington made to positivism [49]in what fit with the past and moral value may not be consistent, there is no right answers to dispute, only the most appropriate chosen at the time by the judge. [50] Dworkin’s view of the existence of right answers to legal questions was challenged by moral pluralism in which there is no right or wrong answers but the most appropriate answers at time. Even then, the decision made is imperfect and may generate regrets anyhow. [51] Dworkin’s theory that laws possess moral values also falls short in the case of wicked legal system. Dworkin is unable to explain if these laws are not enforceable and why.

The consensus model

The consensus model cited by Bell mainly describes an attitude judges should possess when making judicial decisions in courts. There are two main characteristics of this attitude. Firstly, Bell draws the idea from Baron Greene that the attitude of merely adapting principles to distinct situations is to be maintained and ultimately legislations and policies remain unchanged. [52] Secondly, judges are accountable representatives of the public and hence they propose these adaptations from the bottom-up approach, unlike policy-makers who see from the superintendent’s perspective and create laws using the top-down methodology. [53] There are no grounds for law reform at the judicial level, instead the adaptation of laws overtime in a development process building on the existing legal framework. [54] Therefore, when application of clear rules to obvious cases leads to injustice, or that when legal resources exhaust, the judge seeks to make decisions based on existing laws and harmony. The weakness of this model is that judges are merely a small pool of selected people of a pluralistic society and they are unable to truly represent the world at large. [55]

Realism

The most renounced realism supporters are Felix Cohen, Jerome Frank, Karl Llwellyn and Herman Oliphant. [56] Realists’ sceptical view to the determinacy of the law leads to their theory of adjudication that judges have the ultimately authority to make decisions based on non-legal resources and to supersede legal rules. [57] Realists therefore support that rules are supplementary and act merely as predictions when plain application of these rules leads to injustice, or when there is no rule available for new situations. [58] They disapprove Langdell’s notion that legal rules always derive correct outcome and regard laws as mythical and are insignificant in judicial decision-making. [59] Furthermore, they strongly opinionated that laws are in fact incompetent to solely depend on in courts. [60] Realists are similar to Austin in taking the reductionist approach in theory of law, and in identifying law with what the sovereign commands, but Austin’s sovereign lawmaker is the legislature while realists’ sovereign lawmaker is judiciary. [61] Hart accuses realists of neglecting the normative conviction of rules that at least must be internalised by legal officials, and of their implication that courts do not make mistakes. [62] Dworkin also holds an unfavourable charge to realism’s result-driven and pragmatic approach to judicial decision-making. [63] As highlighted by Geoffrey de Q Walker, realists need to justify if the value of judges is acceptable, and to explain the power-conferring rule to judges who are not elected like politicians. [64]

Conclusion

There are apparent differences between legal reasoning and political reasoning in judicial decision-making and the nature and level of differences have been argued over decades by legal philosophers. Some notable theories emerged were formalism, Hart’s doctrine of discretion, Fuller’s purposive approach, Dworkin’s “the rights model”, the consensus model and realism.

Bibliography

1. John Bell, Policy Arguments in Judicial Decisions (Oxford University Press, 1983)
2. Miro Cerar, ‘The Relationship Between Law and Politics’ (2009) 15(1) Annual Survey of International & Comparative Law
3. Joanathan Crowe, Legal Theory (Thomson Reuters, 2nd ed, 2014)
4. Nickolas James, Rachael Field, ‘Thinking skills: Legal Reasoning’ in The New Lawyer (John Wiley & Sons, 1st ed, 2013)
5. Denise Meyerson, Jurisprudence (Oxford University Press, 2011)
6. Anthony J. Sebok, Legal Positivism in American Jurisprudence (Cambridge University Press, 1998)
7. Lawrence Solum, Positive and Normative Legal Theory (9 June 2013) Legal Theory Lexicon , <https://lsolum.typepad.com/legal_theory_lexicon/2003/12/legal_theory_le.html>
8. Cass R Sunstein, Legal Reasoning and Political Conflict (Oxford University Press, 1st ed, 1996)

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[1] Miro Cerar, ‘The Relationship Between Law and Politics’ (2009) 15(1) Annual Survey of International & Comparative Law 19, 20. [2] Ibid 19. [3] Ibid 20-1. [4] Nickolas James, Rachael Field, ‘Thinking skills: Legal Reasoning’ in The New Lawyer (John Wiley & Sons, 1st ed, 2013) 267. [5] Cass R Sunstein, Legal Reasoning and Political Conflict (Oxford University Press, 1st ed, 1996) 191. [6] Denise Meyerson, Jurisprudence (Oxford University Press, 2011) 60. [7] Joanathan Crowe, Legal Theory (Thomson Reuters, 2nd ed, 2014) 110-2. [8] Denise Meyerson, Jurisprudence (Oxford University Press, 2011) 60. [9] Joanathan Crowe, Legal Theory (Thomson Reuters, 2nd ed, 2014) 110-1. [10] Ibid. [11] Ibid. [12] Ibid 111-2. [13] Denise Meyerson, Jurisprudence (Oxford University Press, 2011) 146. [14] Ibid 144. [15] Ibid 148. [16] Ibid 145. [17] Anthony J. Sebok, Legal Positivism in American Jurisprudence (Cambridge University Press, 1998) 194. [18] Denise Meyerson, Jurisprudence (Oxford University Press, 2011) 146. [19] Ibid. [20] Ibid 184. [21] Denise Meyerson, Jurisprudence (Oxford University Press, 2011) 136-7. [22] Ibid 137. [23] Ibid 62. [24] John Bell, Policy Arguments in Judicial Decisions (Oxford University Press, 1983) 17. [25] Denise Meyerson, Jurisprudence (Oxford University Press, 2011) 148. [26] Ibid 136-7. [27] Ibid 137. [28] John Bell, Policy Arguments in Judicial Decisions (Oxford University Press, 1983) 17. [29] Ibid. [30] Denise Meyerson, Jurisprudence (Oxford University Press, 2011) 138. [31] Ibid 142 [32] Ibid 143-4. [33] Ibid 140 [34] Ibid 140-1 [35] Ibid 149. [36] Ibid 145. [37] Ibid 137. [38] Ibid. [39] Denise Meyerson, Jurisprudence (Oxford University Press, 2011) 140. [40] Ibid 141. [41] Ibid 60. [42] Lawrence Solum, Positive and Normative Legal Theory (9 June 2013) Legal Theory Lexicon , <https://lsolum.typepad.com/legal_theory_lexicon/2003/12/legal_theory_le.html> [43] John Bell, Policy Arguments in Judicial Decisions (Oxford University Press, 1983) 16-7. [44] Ibid. [45] Denise Meyerson, Jurisprudence (Oxford University Press, 2011) 150. [46] Ibid 145. [47] Ibid 175. [48] Ibid. [49] Anthony J. Sebok, Legal Positivism in American Jurisprudence (Cambridge University Press, 1998) 194. [50] Denise Meyerson, Jurisprudence (Oxford University Press, 2011) 180. [51] Ibid. [52] John Bell, Policy Arguments in Judicial Decisions (Oxford University Press, 1983) 10-13. [53] Ibid. [54] Ibid 13. [55] Ibid. [56] Denise Meyerson, Jurisprudence (Oxford University Press, 2011) 183. [57] Ibid 183-5, 191. [58] Ibid 183-7. [59] Ibid 185. [60] Ibid 188. [61] Ibid 186. [62] Ibid 187. [63] Ibid 196-7. [64] Ibid 197.

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