Right Answers and Hard Cases

In legal reasoning, the idea that a right answer can be found in hard cases is pure fiction. Discuss. Introduction It is often said that ‘hard cases make bad law’, but it is submitted by way of an opening observation that categorical statements regarding the law and its modus operandi are misleading at best and usually unreliable at the margins. The statement under review in the title to this work, in declaring that it is pure fiction that right answers can be found in hard cases, must be treated with suspicion from the outset.

The phrase grates uncomfortably with this commentator. There are remarkably few concrete rules in law, and given that our legal system is a vast and organic entity in a constant state of flux and development this can come as no real surprise.

[1] In law there are exceptions to almost every conceivable rule, and normally there are several tiers of exceptions and jurisprudential tributaries flowing from that primary caveat. One sure way to provoke a combative response from a lawyer is to declare that something in law is either black or white. Almost nothing is, and for good reason. The infinite shades of grey that colour our legal system sustain the flexibility that allows it to cater for the uncountable scenarios in which it may be called upon to intervene.

This commentator’s initial assertion is therefore that the right answers can sometimes be ascertained from hard cases, to say that such is pure fiction is overstating the point. The Wizard of Oz is pure fiction, but at law almost anything is possible, as countless surprised litigants may testify. Legal Reasoning: An Elusive Art Legal reasoning is a subjective process steered by the objective paradigms and general principles established by the legal system in question. It is an art, more than a science.

There is no such thing as two plus two equals four and, as stated, few universal certainties.

[2] As such it is very difficult to define exactly what occurs in the mind of a judge, advocate or jury as they dwell on the issues confronting them in any particular case.

[3] Moreover there is nothing to say that a particular methodology is endorsed and applied by a particular court or a specific individual on a consistent basis: legal reasoning is a nebulous and elusive process subject, on each occasion that it is invoked to a fluctuating constellation of variable factors. When asked to define legal reasoning most lawyers will respond with a long pause, and if an answer is volunteered it is unlikely it will correspond to other versions offered. Typically, for every line taken by a particular judge from a general principle or issue to a verdict a different judge or advocate who started from the same conceptual point of departure will take a slightly or sometimes wildly different route which may or may not result in arrival at the same place in law. Dworkin confirms this specific analysis in his writing,

[4] although, that said, his commitment to a ‘one right answer thesis’ remains firm. The way in which Dworkin justifies this apparent contradiction is to assert that right answers can differ from person to person and interpreter to interpreter.

[5] There is a distinct lack of consensus among legal theorists as to the proper definition of the schematic profile of the fundamental interpretive processes inherent in legal reasoning.

One of the key points of disagreement is as to whether interpretation in legal reasoning can as a matter of course lead judges to derive the ‘one right answer’ in relation to the legal issue in question. For example, in his work ‘On Reason and Authority in Law’s Empire’

[6] Finnis refutes Dworkin’s assertion that it is possible for interpretative protocols in legal reasoning to steer judges to a so-called ‘one right answer, at least in the terms articulated by Dworkin, given the fact that there are enduring inequalities in the criteria under which competing interpretations must be comparatively evaluated and judged. In contradicting the architecture of Dworkin’s base thesis, Finnis submits that while judges and advocates must obviously endeavour to search for good answers and circumnavigate bad ones, it would be foolish to wed oneself to the pursuit of the holy grail of uniquely right answers in the context of legal interpretation. This commentator argues that there is a degree of truth in both these philosophical stances and that there is something to commend both theories in practice.

[7] However, in line with the approach articulated in the opening to this paper, it is inevitable that neither offers a definitive formula in this context. Addressing the Question: Right Answers and Hard Cases It is at this stage probably worth questioning the concepts entailed in the title itself. The notion that a case can generate a right answer is hard to defend in all but the most straightforward cases. One must first define exactly what one means by right? Moreover, it is submitted that the notion that a case can generate a right answer which will thereafter be applicable in all similar cases must inevitably be flawed, given that no two cases are identical and that subtle differences in the facts and background to a case may render even the best precedents unwieldy or inequitable. It also fails to take account of the fact that society is in a constant state of flux and evolution, and that what is right in one set of circumstances at one point in time might not be deemed so appropriate at some future point in time. Is the right answer one that delivers justice and equity in the case in question to the benefit of one concerned litigant, or one that maintains the integrity and promotes the future application of the law for the benefit of many potential litigants and the stability of the legal system, which in turn reinforces the stability of the wider community it serves and governs? It is a difficult question, because while the interests of the majority must inevitably outweigh the interests of the minority what value is there in a legal system that delivers decisions blind to the particular circumstances of a certain case. It is submitted that a delicate balance must be struck. There are many areas of law where decisions appear to be reached on a case-by-case basis judged predominantly on the court’s perception of their merits.

Naturally, this does little for the internal and underlying coherence of the jurisprudence, or reasoning expounded in the case. When sitting collectively judges may agree on an ultimate ruling but on the footings of different rationales, and this creates a problem in the subsequent application of precedents, and indeed for the case’s overall coherence among other similar cases and within the ambit of the greater law at issue. Judges are human beings, not machines, and they are usually predisposed to ensure a deserving outcome in a case, but this may cause anomalies and convoluted tensions in the applicable law and its related tributaries. As has already been stated ‘hard cases make bad law’, although with a view to the opening thesis expressed in this paper this commentator would amend that familiar phrase along the following lines: ‘hard cases often make bad law’. The greatest difficulty seems to occur when the courts are faced with emotive cases, or cases of special sensitivity, or litigants of vastly differing power or moral authority. It is submitted that it is crucial to explore fully the relationship between law and morality in this context in light of the fact that differing interpretations of the law are in significant part provoked by different subjective evaluations of moral issues. Inevitably, this underlying disparity provokes differing verdicts on any given point of jurisprudence.

Once one accepts the interplay and influence of morality in the field and process of legal reasoning it becomes easier to understand the real difficulty inherent in defining anything of substance relating to the matter at hand with any degree of reliable certainty. It is submitted, with confidence, that morality is a uniquely personal matter. Like fingerprints, if not more so, every person on earth has a slightly different set of moral codes. There are of course various norms and generalities that enjoy the support of the vast majority of humanity, such as thou shalt not kill, but even this most basic of moral rules is subject to a huge number of caveats and provisos depending on the context at issue. The problem is that whatever particular moral stance is endorsed and applied at law, it needs to be objectively justified if it is to be held up as establishing mandatory applicability in relation to a particular question. The very notion of a perfect right answer in any particular case is therefore complicated and obfuscated by ephemeral issues of morality before matters such as the uniformity of the greater span of case-law can even be considered. Re A: the law at its limits Clucas and O’Donnell discussed the issue of law and morality in the context of a very hard case indeed in their paper ‘Conjoined Twins: the cutting edge’[8]. Their paper considered, in particular, the case of Re A (children) (conjoined twins: surgical separation)

[9] which challenged moral, legal, medical and ethical interpretative norms to their fullest extent. The case involved conjoined twins identified as Mary and Jodie respectively.

Unfortunately, Mary was not viable, having a heart and lungs which were non-functioning, she would not have survived birth if born alone, in addition her brain function was drastically impaired. Jodie’s heart was sustaining Mary’s life, but could not do so for long.

Medical testimony established that Jodie’s heart would fail under the increased pressure as the twins grew, and that both twins would die. The medical team caring for the twins believed that the only course of action was to separate the twins, which would end Mary’s life but give Jodie an excellent chance of survival and the prospect of a relatively normal life. However, the parents of the twins believed that it was not right to give their consent to an operation that would result in Mary’s certain death and argued that God’s will should be allowed to prevail. One of the key questions brought before the court was whether the rules forbidding homicide were applicable in the same way to conjoined twins in these circumstances as to all other persons? Positivism suggests that the law is exhausted where there is no rule available to be directly applied to a particular situation. It is submitted that in such cases, judges must use their discretion to create a new legal principle. In such a circumstance it could be said that the answer to the dilemma ’how should the law respond to the sacrifice of a conjoined twin?’ can be effectively reduced to whatever the judge responsible concludes. On the other hand Dworkin, who champions the school of legal idealism, consistently refutes the notion that the law can be exhausted. He argues that underlying legal principles sustain express and specific rules, and that these fundamental rules are capable of deriving an answer to any situation on careful interpretation and application.[10] Dworkin, contends that judges do not have carte blanche to make law, but that they may find the relevant law by distilling it from established general principles.

This is undeniably a difficult field of endeavour, especially in a situation as emotionally and morally charged as the one confronting the court in Re A. It is clear that the question as to exactly what the law is, or what it should be, in a hard case such as this where the law fails to offer specific guidance, steers those charged with its interpretation to investigate the deeper concepts of law.[11] In so-called hard cases such as Re A it is clear that the underlying concepts of law must be drawn on once it is clear that conventional rules derive no clear or readily apparent answer. It is submitted that Hart, for one would support this thesis, given that legal reasoning must by definition have some basis on which to derive its fundamental authority.[12] To say that hard cases can never yield the right answers is clearly foolish. It is argued that it depends on the judge, the susceptibility of the base legal principles and all the circumstances of the case. The way in which the court in question responds to the challenge of appraising the concept of law at the heart of the matter – whether the law and morality are divorced along positivist lines, or whether morality and the law are deemed to be conceptually connected in the tradition of natural law or legal idealism – will always determine the appropriate approach to the law, whether the case is hard, or straightforward on its facts. In Re A, a stark choice confronted the Court of Appeal. In short the Court could refuse to permit the operation to separate the conjoined twins, in which case both children would die, or the Court could grant its permission to carry out the operation, which would result in Mary’s certain and immediate death. Adrift in uncharted legal territory, with the lives of two baby girls in their hands and all the consequent pressure that that entailed, all three Lord Justices reasoned that the only appropriate course of action was to prefer the lesser of the two evils. Accordingly the Court choose to rule that the proposed operation was not unlawful and that it should be allowed to go ahead in the hope that Jodie’s life, at least, could be saved. It is submitted that this hard case generated a difficult but undeniably prudent and well founded decision. The ruling was posited in particular on an interpretation of the necessity in the circumstances defence and although it resulted in the court-sanctioned termination of an innocent life, it can plainly be justified on the grounds of protecting the interests of the child with the real chance of survival.

The ruling acknowledges that not all life is equal, and, though unfamiliar to our legal system and moral code, it is a principle that will become increasingly familiar. Medical science has now advanced to a stage where human life can be sustained almost in perpetuity and the law must adapt to the challenge of developing new principles to replace old rules now made redundant by technological progress. Re A prompted the court to return to reasoning on base conceptual principle and it is submitted that the court delivered the right result. This case alone defeats the assertion made in the statement under review in the title to this paper – which is always the risk when one is foolhardy enough to make concrete statements in law. However, as technology continues to develop new challenges and questions will be posed and hard cases will continue to arise in this arena.

The courts will sometimes produce the wrong answer in such difficult cases, certainly more often than they will in easily determined and straightforward cases, but then judges are but human and the occasional tendency to err is part of the human condition. However, that is very far indeed from saying that for a court to arrive at the right decision in a hard case is pure fiction. Concluding Comments The title to this work prompts discussion of the bold statement: “In legal reasoning, the idea that a right answer can be found in hard cases is pure fiction”. In concluding, this commentator submits that the analysis undertaken in the body of this paper has not shaken the initial assertion set out in its introduction. The statement can be struck down as an oversimplification of reality which is blind to the fact that, in the past, hard cases have generated good law – not perhaps the so-called right answer, if such a thing ever truly exists – but law which is appropriate to the circumstances and the status quo of the legal system as a whole[13]. An example of good law derived from a hard case lies in the ruling generated by Re A, as discussed, which embodied thoughtful and sincere judgments in the most difficult of circumstances to derive what was surely the only morally tenable answer. It is unnecessary to delve any deeper than Re A to confound the statement under review, and that underlines the foolishness of making unequivocal statements in this field. Of course, hindsight yields 20/20 vision, but just because a decision is poorly interpreted and applied in future cases, does not necessarily mean that it was born as bad law. To say that it is pure fiction that a hard case could ever have the capacity to further the law in this regard is a nonsense. However hard it may be in the circumstances to find an answer, it is never impossible that that answer might be the best one available. Moreover, to assert such is a slight on those hardworking, conscientious and capable judges and advocates that work to ensure the integrity of the legal system, no matter how challenging a particular case may at first sight seem. In summation, although hard cases have won a reputation for deriving unreliable and unsatisfactory rulings it is naïve and blinkered to suggest that such cases are never capable of producing the right answer, whether one defines right as what is right between the parties, or right in terms of the stability and efficacy of the greater legal system. In law one can never say never, and one must take care to define one’s terms precisely when venturing to make bold and categorical statements. It is submitted that subjective processes such as legal reasoning are not susceptible to the objective language of mathematics or scientific certainty.

The statement under review is pregnable to criticism on both these fronts, and just plain wrong in substance. To claim that the quality of a judgment inevitably depends on the simplicity of the case is untenable if not laughable, and that is this commentator’s final word. THE END WORD COUNT: 3130 (excluding footnotes) BIBLIOGRAPHY Holland and Webb, Learning Legal Rules, Oxford University Press, (2003) Dworkin, R., Law’s Empire, Fontana Press, (1986) Finnis, J., ‘On Reason and Authority in Law’s Empire’ (1987) 6 Law and Philosophy, 357-380. MacCormick, N., Legal Reasoning and Legal Theory, Clarendon Press, (1978). Hart, H.L.A., The Concept of Law, Oxford University Press (1994). Clucas and O’Donnell, ‘Conjoined Twins: the cutting edge’ [2002] 5 Web JCLI. Dickson, Julie, “Interpretation and Coherence in Legal Reasoning”, The Stanford Encyclopaedia of Philosophy (Fall 2005 Edition): https://plato.stanford.edu/cgi-bin/encyclopedia/archinfo.cgi?entry=legal-reas-interpret Marmor, A., Interpretation and Legal Theory, Hart Publishing (2005) Weinreb, L., Legal Reason: The Use of Analogy in Legal Argument, Cambridge University Press (2005) Cases as footnoted 1

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Footnotes

[1] See for an insightful overview: Holland and Webb, Learning Legal Rules, Oxford University Press, (2003), Chapter 1.

[2] For an excellent commentary on this issue see: Dickson, Julie, “Interpretation and Coherence in Legal Reasoning”, The Stanford Encyclopaedia of Philosophy (Fall 2005 Edition): https://plato.stanford.edu/cgi-bin/encyclopedia/archinfo.cgi?entry=legal-reas-interpret.

[3] See for comment: MacCormick, N., Legal Reasoning and Legal Theory, Clarendon Press, (1978).

[4] Dworkin, R., Law’s Empire, Fontana Press, (1986) Chapter 11.

[5] See note 2 above.

[6] Finnis, J., ‘On Reason and Authority in Law’s Empire’ (1987) 6 Law and Philosophy, 357-380.

[7] See also: Weinreb, L., Legal Reason: The Use of Analogy in Legal Argument, Cambridge University Press (2005).

[8] Clucas and O’Donnell, ‘Conjoined Twins: the cutting edge’ [2002] 5 Web JCLI.

[9] [2000] 4 All ER 961. [10] Dworkin, R., Law’s Empire, Fontana Press, (1986). [11] See for a general commentary: Hart, H.L.A., The Concept of Law, Oxford University Press (1994). [12] See note 9, chapter 1. [13] See for deeper analysis: Marmor, A., Interpretation and Legal Theory, Hart Publishing (2005).

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