In legal logical thinking, the thought that a right reply can be found in difficult instances is pure fiction. Discuss.
It is frequently said that ‘hard instances make bad law’ , but it is submitted by manner of an gap observation that categorical statements sing the jurisprudence and itsmodus operandiare misdirecting at best and normally undependable at the borders. The statement under reappraisal in the rubric to this work, in declaring that it ispure fictionthat right replies can be found in difficult instances, must be treated with intuition from the beginning. The phrase grates uncomfortably with this observer. There are unusually few concrete regulations in jurisprudence, and given that our legal system is a huge and organic entity in a changeless province of flux and development this can come as no existent surprise. [ 1 ] In jurisprudence there are exclusions to about every imaginable regulation, and usually there are several grades of exclusions and jurisprudential feeders fluxing from that primarycaution. One certain manner to arouse a contentious response from a attorney is to declare that something in jurisprudence is either black or white. Almost nil is, and for good ground. The infinite sunglassess of Grey that colour our legal system prolong the flexibleness that allows it to provide for the uncountable scenarios in which it may be called upon to step in. This commentator’s initial averment is hence that the right replies cansometimesbe ascertained from difficult instances, to state that such ispure fictionis exaggerating the point.The Wizard of Ozis pure fiction, but at jurisprudence about anything is possible, as countless surprised litigators may attest.
Legal Reasoning: An Elusive Art
Legal logical thinking is a subjective procedure steered by the nonsubjective paradigms and general rules established by the legal system in inquiry. It is an art, more than a scientific discipline. There is no such thing as two plus two peers four and, as stated, few cosmopolitan certainties. [ 2 ] As such it is really hard to specify precisely what occurs in the head of a justice, advocator or jury as they dwell on the issues facing them in any peculiar instance. [ 3 ] Furthermore there is nil to state that a peculiar methodological analysis is endorsed and applied by a peculiar tribunal or a specific person on a consistent footing: legal logical thinking is a cloudy and elusive procedure topic, on each juncture that it is invoked to a fluctuating configuration of variable factors. When asked to specifylegal logical thinkingmost attorneies will react with a long intermission, and if an reply is volunteered it is improbable it will match to other versions offered.
Typically, for every line taken by a peculiar justice from a general rule or issue to a finding of fact a different justice or advocator who started from the same conceptual point of going will take a somewhat or sometimes wildly different path which may or may non ensue in reaching at the same topographic point in jurisprudence. Dworkin confirms this specific analysis in his authorship, [ 4 ] although, that said, his committedness to a ‘one right reply thesis’ remains house. The manner in which Dworkin justifies this evident contradiction is to asseverate thatright repliescan differ from individual to individual and translator to interpreter. [ 5 ]
There is a distinguishable deficiency of consensus among legal theoreticians as to the proper definition of the conventional profile of the cardinal interpretative procedures built-in in legal logical thinking. One of the cardinal points of dissension is as to whether reading in legal logical thinking can as a affair of class lead Judgess to deduce the ‘one right answer’ in relation to the legal issue in inquiry. For illustration, in his work ‘On Reason and Authority in Law ‘s Empire’ [ 6 ] Finnis refutes Dworkin’s averment that it is possible for interpretive protocols in legal logical thinking to maneuver Judgess to a alleged ‘one right reply, at least in the footings articulated by Dworkin, given the fact that there are digesting inequalities in the standards under which viing readings must be relatively evaluated and judged. In beliing the architecture of Dworkin’s base thesis, Finnis submits that while Judgess and advocators must evidently endeavor to seek for good replies and compass bad 1s, it would be foolish to marry oneself to the chase of the holy grail of unambiguouslyrightreplies in the context of legal reading. This observer argues that there is a grade of truth inboththese philosophical stances and that there is something to commend both theories in pattern. [ 7 ] However, in line with the attack articulated in the gap to this paper, it is inevitable that neither offers a unequivocal expression in this context.
Addressing the Question:Right AnswersandDifficult Cases
It is at this phase likely deserving oppugning the constructs entailed in the rubric itself. The impression that a instance can bring forth aright replyis difficult to support in all but the most straightforward instances. One must foremost specify precisely what one means byright? Furthermore, it is submitted that the impression that a instance can bring forth a right reply which will thenceforth be applicable in all similar instances must necessarily be flawed, given that no two instances are indistinguishable and that elusive differences in the facts and background to a instance may render even the best case in points unmanageable or unjust. It besides fails to take history of the fact that society is in a changeless province of flux and development, and that what is right in one set of fortunes at one point in clip might non be deemed so appropriate at some future point in clip. Is the right reply one that delivers justness and equity in the instance in inquiry to the benefit of one concerned litigator, or one that maintains the unity and promotes the future application of the jurisprudence for the benefit of many possible litigators and the stableness of the legal system, which in bend reinforces the stableness of the wider community it serves and governs? It is a hard inquiry, because while the involvements of the bulk must necessarily outweigh the involvements of the minority what value is at that place in a legal system that delivers determinations blind to the peculiar fortunes of a certain instance. It is submitted that a delicate balance must be struck.
There are many countries of jurisprudence where determinations appear to be reached on a individual footing judged preponderantly on the court’s perceptual experience of their virtues. Naturally, this does little for the internal and implicit in coherency of the law, or concluding expounded in the instance. When sitting jointly Judgess may hold on an ultimate opinion but on the termss of different principles, and this creates a job in the subsequent application of case in points, and so for the instance ‘s overall coherency among other similar instances and within the scope of the greater jurisprudence at issue. Judges are human existences, non machines, and they are normally predisposed to guarantee a meriting result in a instance, but this may do anomalousnesss and convoluted tensenesss in the applicable jurisprudence and its related feeders. As has already been stated ‘hard instances make bad jurisprudence ‘ , although with a position to the gap thesis expressed in this paper this observer would amend that familiar phrase along the undermentioned lines: ‘hard instancesfrequentlydo bad law’ .
The greatest trouble seems to happen when the tribunals are faced with affectional instances, or instances of particular sensitiveness, or litigators of immensely differing power or moral authorization. It is submitted that it is important to research to the full the relationship between jurisprudence and morality in this context in visible radiation of the fact that differing readings of the jurisprudence are in important portion provoked by different subjective ratings of moral issues. Inevitably, this implicit in disparity provokes differing finding of facts on any given point of law. Once one accepts the interplay and influence of morality in the field and procedure of legal concluding it becomes easier to understand the existent trouble inherent in specifying anything of substance associating to the affair at manus with any grade of dependable certainty.
It is submitted, with assurance, that morality is a uniquely personal affair. Like fingerprints, if non more so, every individual on Earth has a somewhat different set of moral codifications. There are of class assorted norms and generalizations that enjoy the support of the huge bulk of humanity, such as1000 shalt non kill, but even this most basic of moral regulations is capable to a immense figure of cautions and provision depending on the context at issue. The job is that whatever peculiar moral stance is endorsed and applied atjurisprudence, it needs to be objectively justified if it is to be held up as set uping compulsory pertinence in relation to a peculiar inquiry. The very impression of a perfect right reply in any peculiar instance is hence complicated and obfuscated by passing issues of morality before affairs such as the uniformity of the greater span of case-law can even be considered.
Re A: the jurisprudence at its bounds
Clucas and O’Donnell discussed the issue of jurisprudence and morality in the context of a reallydifficult instanceso in their paper ‘Conjoined Twinss: the film editing border’ [ 8 ] . Their paper considered, in peculiar, the instance ofRe A ( kids ) ( conjoined twins: surgical separation )[ 9 ] which challenged moral, legal, medical and ethical interpretative norms to their fullest extent.
The instance involved conjoined twins identified as Mary and Jodie severally. Unfortunately, Mary was non feasible, holding a bosom and lungs which were non-functioning, she would non hold survived birth if born entirely, in add-on her encephalon map was drastically impaired. Jodie’s bosom was prolonging Mary’s life, but could non make so for long. Medical testimony established that Jodie’s bosom would neglect under the increased force per unit area as the twins grew, and that both twins would decease. The medical squad lovingness for the twins believed that the lone class of action was to divide the twins, which would stop Mary’s life but give Jodie an first-class opportunity of endurance and the chance of a comparatively normal life. However, the parents of the twins believed that it was non right to give their consent to an operation that would ensue in Mary’s certain decease and argued that God’s will should be allowed to predominate. One of the cardinal inquiries brought before the tribunal was whether the regulations prohibiting homicide were applicable in the same manner to conjoined twins in these fortunes as to all other individuals?
Positivism suggests that the jurisprudence is exhausted where there is no regulation available to be straight applied to a peculiar state of affairs. It is submitted that in such instances, Judgess must utilize their discretion to make a new legal rule. In such a circumstance it could be said that the reply to the quandary ’how should the jurisprudence respond to the forfeit of a conjoined twin? ’ can be efficaciously reduced to whatever the justice responsible concludes. On the other manus Dworkin, who champions the school of legal idealism, systematically refutes the impression that the jurisprudence can be exhausted. He argues that underlying legal rules sustain express and specific regulations, and that these cardinal regulations are capable of deducing an reply to any state of affairs on careful reading and application. [ 10 ] Dworkin, contends that Judgess do non holdmenu blancheto do jurisprudence, but that they mayhappenthe relevant jurisprudence by condensing it from established general rules. This is undeniably a hard field of enterprise, particularly in a state of affairs as emotionally and morally charged as the one facing the tribunal inRe A.It is clear that the inquiry as to exactly what the jurisprudence is, or what it should be, in a difficult instance such as this where the jurisprudence fails to offer specific counsel, tips those charged with its reading to look into the deeper constructs of jurisprudence. [ 11 ]
In alleged difficult instances such asRe Ait is clear that the implicit in constructs of jurisprudence must be drawn on once it is clear that conventional regulations derive no clear or readily evident reply. It is submitted that Hart, for one would back up this thesis, given that legal logical thinking must by definition have some footing on which to deduce its cardinal authorization. [ 12 ] To state that difficult instances can ne’er give the right replies is clearly foolish. It is argued that it depends on the justice, the susceptibleness of the basal legal rules and all the fortunes of the instance. The manner in which the tribunal in inquiry responds to the challenge of measuring the construct of jurisprudence at the bosom of the affair – whether the jurisprudence and morality are divorced along rationalist lines, or whether morality and the jurisprudence are deemed to be conceptually connected in the tradition of natural jurisprudence or legal idealism – will ever find the appropriate attack to the jurisprudence, whether the instance isdifficult, or straightforward on its facts.
InRe A, a blunt pick confronted the Court of Appeal. In short the Court could decline to allow the operation to divide the conjoint twins, in which instance both kids would decease, or the Court could allow its permission to transport out the operation, which would ensue in Mary’s certain and immediate decease. Adrift in chartless legal district, with the lives of two babe misss in their custodies and all the attendant force per unit area that that entailed, all three Lord Justices reasoned that the lone appropriate class of action was to prefer the lesser of the two immoralities. Consequently the Court choose to govern that the proposed operation wasnon improperand that it should be allowed to travel in front in the hope that Jodie’s life, at least, could be saved.
It is submitted that this difficult instance generated a hard but undeniably prudent and good founded determination. The opinion was posited in peculiar on an reading of thenecessity in the fortunesdefense mechanism and although it resulted in the court-sanctioned expiration of an guiltless life, it can obviously be justified on the evidences of protecting the involvements of the kid with the existent opportunity of endurance. The opinion acknowledges that non all life is equal, and, though unfamiliar to our legal system and moral codification, it is a rule that will go progressively familiar. Medical scientific discipline has now advanced to a phase where human life can be sustained about in sempiternity and the jurisprudence must accommodate to the challenge of developing new rules to replace old regulations now made redundant by technological advancement.Re Aprompted the tribunal to return to concluding on base conceptual rule and it is submitted that the tribunal delivered the right consequence. This instance entirely defeats the averment made in the statement under reappraisal in the rubric to this paper – which is ever the hazard when 1 is heady plenty to do concrete statements in jurisprudence. However, as engineering continues to develop new challenges and inquiries will be posed and difficult instances will go on to originate in this sphere. The tribunals will sometimes bring forth the incorrect reply in such hard instances, surely more frequently than they will in easy determined and straightforward instances, but so Judgess are but human and the occasional inclination to mistake is portion of the human status. However, that is really far so from stating that for a tribunal to get at the right determination in a difficult instance ispure fiction.
The rubric to this work prompts treatment of the bold statement: “In legal logical thinking, the thought that a right reply can be found in difficult instances is pure fiction” . In reasoning, this observer submits that the analysis undertaken in the organic structure of this paper has non shaken the initial averment set out in its debut. The statement can be struck down as an simplism of world which is blind to the fact that, in the yesteryear, difficult instances have generated good jurisprudence – non possibly the allegedright reply, if such a thing of all time genuinely exists – but jurisprudence which is appropriate to the fortunes and the position quo of the legal system as a whole [ 13 ] . An illustration of good jurisprudence derived from a difficult instance lies in the opinion generated byRe A, as discussed, which embodied thoughtful and sincere judgements in the most hard of fortunes to deduce what was certainly the lone morally well-founded reply. It is unneeded to dig any deeper thanRe Ato confuse the statement under reappraisal, and that underlines the folly of doing univocal statements in this field.
Of class, hindsight outputs 20/20 vision, but merely because a determination is ill interpreted and applied in future instances, does non needfully intend that it was born as bad jurisprudence. To state that it ispure fictionthat a difficult instance could of all time hold the capacity to foster the jurisprudence in this respect is a bunk. However difficult it may be in the fortunes to happen an reply, it is ne’er impossible that that reply might be the best 1 available. Furthermore, to asseverate such is a little on those hardworking, painstaking and capable Judgess and advocators that work to guarantee the unity of the legal system, no affair how disputing a peculiar instance may at first sight seem.
In summing up, although difficult instances have won a repute for deducing undependable and unsatisfactory opinions it is naive and blinkered to propose that such instances arene’ercapable of bring forthing the right reply, whether one definesrightas what is right between the parties, or right in footings of the stableness and efficaciousness of the greater legal system. In jurisprudence one can ne’er statene’er, and one must take attention to specify one’s footings exactly when embarking to do bold and categorical statements. It is submitted that subjective procedures such as legal logical thinking are non susceptible to the nonsubjective linguistic communication of mathematics or scientific certainty. The statement under reappraisal is pregnable to unfavorable judgment on both these foreparts, and merely kick incorrect in substance. To claim that the quality of a judgement necessarily depends on the simpleness of the instance is indefensible if non absurd, and that is this commentator’s concluding word.
WORD COUNT: 3130 ( excepting footers )
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