UNIVERSITY OF SOUTHAMPTON

SCHOOL OF LAW
LEGAL SYSTEM AND REASONING (LAWS 1012)
2012-2013

LECTURE GUIDE
WEEK 1 (lecture 5) and WEEKS 3 - 7

Dr James MacLean (J.Maclean@soton.ac.uk)

INTRODUCTION
General Outline
During weeks 3 7, we will look at the concepts of law and legality in liberal societies; in
particular, we will look at how these relate to and inform our understandings of the processes
of legal reasoning in judicial decision making.
We start with a general introduction (see Friday lecture in week 1) to the idea of the Rule of
Law, asking questions such as What is law?, How can we know what law is?, and What are
rules and what do they have to do with law? We will the, from week 3 onwards, begin to
consider this against a background of positivist theories about what law is, on the one hand,
and Natural Law theories, on the other. Here we will look at notions of rationality and
formality in law and consider the formalist/rationalist model in terms of the criticisms and
adaptations that have been offered against it, beginning with American Legal Realism.
Looking closely at the work of H L A Hart and Neil MacCormick, we will focus on the problem
of judicial discretion in decision making, before comparing and contrasting these approaches
with the so-called fact scepticism of Jerome Frank, a leading US Appeal Court judge writing
in the 1940-50s.
Reading:
The recommended text for this part of the module is:
Veitch, S. Christodoulidis, E. and Farmer, L. (2007), Jurisprudence: Themes and
concepts (Abingdon: Routledge). ISBN: 978-1-859-41815-4.
An alternative text, which provides an equally good reference book for this part of the
module, is:
Meyerson, D, (2007), Understanding Jurisprudence (Abingdon: Routledge). ISBN: 9871-85941-946-4.
(Details of other essential and further readings are provided in the notes)
Outline of Lectures (weeks 1(5) and 3-6):
Week 1:
Week 3:
Week 5:
Week 6:
Week 7:

Lecture
Lecture
Lecture
Lecture
Lecture
Lecture
Lecture
Lecture

5:
1:
2:
1:
2:
1:
2:
1:

What is Law?
Law as a System of Rules
Law and Morality
Judges and their Decisions
Legal Reasoning & the Rule of Law
What is a Hard Case?
Hard Cases and the Scope of Substantive Reasoning
Language and Narrative in the Courtroom

Week 1 (lecture 5):

Lecture:

Introduction to Legal Theory What is Law?

Essential Reading:
Fuller, L. L. (1949), The Case of the Speluncean Explorers, Harvard Law Review, Vol.
62, No. 4.
WHAT IS LAW?
We will use the opinions of the judges in Lon Fullers Speluncean Explorers case in
order to try and map some of the main areas of debate that background any
discussion of the nature and role of legal reasoning in judicial decision making. Put
simply, they each represent a different way of attempting to address and respond to
the question What is Law? Answers to this question have, over the years, tended to
fall one or the other side of a number of dichotomies: normative/descriptive;
formal/substantial; moral/positive law; rational/irrational; liberty/power.
Taking the Speluncean Explorers as our initial point of reference, we will use the
distinctions offered by these oppositional pairs to canvas responses to a number of
important questions; for example, what sort of argument do judges employ in
decision making, and why?; do they utilise every possible type of argument or do
they leave some possibilities unexplored?; what determines whether something
counts as an argument in this type of discussion?; and how would you treat the
Speluncean Explorers if you were a judge, and why?
1. Law as Normative
For our purposes, the law that we are talking about is normative law, and is to be
distinguished from the types of causal or explanatory laws that we find in, for
example, the natural sciences. Think of the difference between (a) a lorry rolling
down a moderate incline and coming to rest at the foot of the slope, and (b) the
same lorry being driven towards a road junction and stopping at a traffic light. What
is the difference? How would you account for it? What does it tell us about the
contrast between these different types of law: the law of gravity and the road traffic
law?
As normative, law is usually expressed in terms of what we think ought to happen;
whereas scientific law is expressed in terms of what actually happens. This is usually
expressed in the textbooks in terms of the contrast between ought and is. Of
course we could easily express our sense of what is happening in the two cases in
similar terms: the lorry must stop when its downhill momentum is exhausted; the
lorry must stop when the traffic light turns to red. But is must being used in the
same sense in the two descriptions?
Notice then, a major difference between normative law, on the one hand, and
descriptive, causal or explanatory laws, on the other. Normative law provides us with
a basis for evaluating behaviour: good drivers stop at red traffic lights, bad drivers
do not. While it is possible to deviate from normative laws, so to do is to act badly
from the point of view of evaluation. In other words, normative laws can be broken
without this affecting their status as normative: we criticise the phenomenon not the
law-statement. However, descriptive, causal or explanatory, laws are not subject to
being broken in this way. If my observations do not conform to the stated law then
it has to be modified or withdrawn. For example, if I drop a glass of beer and it does

not fall towards the ground then this must lead me to question the accepted lawstatement in relation to gravity. This is opposite to normative law. Descriptive laws
necessarily relate causes and effects. They tell us what is bound to, what cannot but
happen
Another important point is that normative laws presuppose freedom of choice.
Normative laws are addressed to persons who, knowing the law, have a choice
whether to conform (to do as they ought) or not. If such persons choose not to
conform but, instead, to deviate from prescribed behaviour, then they will become
liable to the adverse judgment of other, law-abiding persons. Thus, normative laws
provide us with a pattern for right (proper) conduct, pointers to what we ought to
do or ought not to do; that is, they are guides for acting that provide us with critical
standards of evaluation and judgment.
In this sense (law as normative), laws provide us with special kinds of reasons for
acting, and for refraining from acting.
You will see, as we progress that certain crucial ideas depend on this general notion
of the normative; for example, if we punish someone then we do this as an adverse
reaction to their wrong doing and this, in turn, presupposes some standard of
judgment against which their deed is counted as wrong. In this way, normative
laws are often thought of as essentially commands backed up with sanctions for law
breaking (NB. important distinction we understand the punishment because we
understand that the laws in question are normative; however, it cannot be what
makes them so).
2. Norms and Rules
This distinction, between normative and descriptive, is a key feature of the law as
we find it in our everyday lives in most human organisations and associations.
National, transnational and international law is normative, as is the law that
regulates your studies under the various degree programmes that you may be
enrolled in within the University.
A related feature of normative law is that it is divisible; that is, we usually think of it
as being divided up into bits. Stopping at traffic lights, incorporating a company,
getting married, avoiding violence to others, abstaining from non-consensual sex,
are all, in different ways, covered by the law of the land (national or state law) and
we have no difficulty in understanding them as being covered by different bits,
parts or branches of the law. We stop at red traffic lights because there is a rule that
states you must stop at a red traffic light and this rule may be found in Road Traffic
Law; likewise, Company Law, Family Law and Criminal Law contain the rules relating
to incorporating a company, getting married, avoiding violence to others and
abstaining from non-consensual sex, respectively.
Similarly, another feature of normative law is that it can be broken down into (or is
made up of) a number of individual laws; that is, normative propositions stating
what ought-to-be-done or ought-not-to-be-done in particular situations, with a
variety of possible consequences prescribed where a person does not do what
ought-to-be-done or does what ought-not-to-be-done. You will find these described
variously in the literature as legal norms, rules of law, principles, etc.
All of this, then, begins to paint a picture about how we might go about trying to
achieve a full understanding of what Law is; that is, we might begin with a study of
what kind of individual legal norms or rules of law are required to build up a whole
body of Law.

Obviously, to engage properly in this task will require an approach that involves a
deeper understanding of the normativity of law than has been solicited by our
considerations so far. So, we need to ask a few questions in order to clarify a few
things: what exactly is it that makes rules normative? What is the special character
of a norm? How do normative rules differ descriptive rules, and normative norms
from other types of norms (such as averages ie. the normal as opposed to the
normative)?
Finally, all of this has often been taken to suggest a way of accounting for and
understanding the idea of the Rule of Law; that is, the Rule of Law is understood
as realised wherever there are appropriate rules of law in place that govern officials
as well as citizens and these are largely obeyed. So, bearing in mind the distinctive
approaches noted in our consideration of the Speluncean Explorers case, will now
consider some related and contrasting approaches to understanding what makes
rules normative: the command theory; the pure theory; the practice theory and
the natural law theory.

Week 4
Lectures:

Law as a System of Rules

Law and Morality

Reading:
Veitch et al. (2012), pp. 20-26, 149-153
Meyerson (2007), pp. 9-32
LAW AS A SYSTEM OF RULES
a. John Austin - the command theory of rules
For Austin, as for the social reformer and philosopher Jeremy Bentham before him,
law has to do with issues of sovereignty, power and sanctions: people in positions of
power in politically independent societies set down rules governing certain acts of
behaviour by others who are in the habit of obeying them. Thus, Austin begins with
a general characterisation of law as a rule laid down for the guidance of an
intelligent being by an intelligent being having power over him. From this, he
proceeds to identify, on the one hand, the laws of God or Divine laws and, on the
other hand, laws set by men. This latter class comprises positive law (man-made
laws set by political superiors or in the exercise of rights conferred by them) and
positive morality (man-made laws set not by political superiors or in the exercise of
rights conferred by them). Law, in this sense, is distinguished as the command of a
sovereign backed by sanctions.
There are a number of important aspects to this:
(i) Sovereign: a factually determinate, indivisible and legally illimitable politically
superior, who can be neither the bearer of legal duties nor the holder of legal rights
and who is habitually obeyed.
(ii) Command: a general order that expresses the wish or desire of the sovereign
backed up with the threat of sanctions.
(iii) Sanction: the realistic possibility of the infliction of some form of harm, pain or
suffering (minimum necessary to ensure compliance)
Are there problems with Austins analysis?
(i)
(ii)

(iii)
(iv)

Can there be a single source of all laws? Does this really equate with our
experience?
A single, factually determinate, politically superior? How does this square
with the real world of political obligation and political authority in todays
modern liberal democracies? Is the electorate sovereign, and therefore in
the habit of issuing commands and habitually obeying themselves?
What about laws that do not impose sanctions but simply confer rights or
powers to, for example, make wills or contracts?
If sovereignty is indivisible and illimitable, what are we to make of federal
states with divided sovereignty, the EU, the ECHR, etc?

b. Hans Kelsen - legal science and the pure theory of law

Kelsen sought a pure theory of law, one that was scientific and accurate; that is, an
analysis of law limited to a consideration of law itself and without reference to
context. The existence of law, its validity and authority must be understood as
entirely separate from non-legal considerations, such as politics, morality, religion,
ethics, and so on.
For Kelsen, law is a coercive system, constituted by norms (ought statements) that
inform officials as to when they may apply sanctions to persons whose conduct has
fulfilled the conditions under which sanctions are applicable. Legal norms (norms
that describe what the law specifies ought to be the case under certain
circumstances and what legal officials ought to do) are to be distinguished from
moral norms (norms that require a certain standard of behaviour in relation to some
conception of the good) and also from legal rules (legislation). We can also
understand this distinction (between legal rules and legal norms) in terms of what
Kelsen calls primary and secondary norms: primary norms stipulate those sanctions
that may be applied under certain conditions; secondary norms are created to either
prescribe or proscribe relevant conduct, and may be derived from the primary norms
by a process of deduction.
Now, all actions have both a subjective and an objective meaning. For example, I
may create a fire by setting light to a pile of wood and, given my desire to keep
warm and dry, providing there was no law against this particular type of activity,
there may be nothing more to say about it than that (subjective meaning). However,
if that pile of wood just happens to be your new flat-packed shed awaiting
construction, and if there are laws against the burning property belonging to
another, then there will be a primary norm that directs an official to apply a sanction
to me for acting in a way that fulfils the conditions under which sanctions may be
applied under that law. Here, the situation has acquired a legal significance; in the
sense that, because the pile of wood was in fact your flat-packed new shed, my
actions have fulfilled the conditions under which an official is properly required to
apply a sanction to me by the relevant legal norm (objective meaning). Thus, where
an efficient legal system operates, the sanction will be applied.
For Kelsen, legal norms are formed into a hierarchy of norms whereby the validity of
any norm is derived from another norm higher up in the hierarchy: the higher norms
are more general while the lower norms are particular. The validity of all legal norms
in the hierarchy derives from and is predicated upon a hypothetical basic norm, the
so-called Grundnorm, which occupies the position at the apex of the hierarchy
beyond which there are no other norms. Thus, since the validity of a legal norm is
predicated upon its existence, the proper question to be asked about legal norms is
not whether they are valid but, given their existence, whether they belong to a
particular hierarchy (ie. legal order).
So, how will we be able to identify law in a given society? We can see that it is only if
we live in a society where officials regularly and effectively apply sanctions in
accordance with certain primary norms that we will be able to identify a system of
norms and, hence, a basic norm; if we cannot, then we will not be able to identify
law or a legal system in that society. Notice also that, because the basic norm is
presupposed (in relation to the efficiency of the sanction-applying activities of the
officials in accordance with the primary norms within that system), it follows that the
Grundnom is subject to change where the officials begin to apply sanctions
efficiently in relation to a different set of norms.
Are there problems with Kelsens theory?

Does he concentrate too much on the formal aspects of law? Can we so easily
separate question about law from those of morality, politics, religion, etc, as Kelsen
seems to suppose? Also, isnt this all a bit one-sided? What becomes of the ordinary
citizen, and his/her perspective, when there is all this concentration on the State
and its powers of coercion? If validity is predicated upon existence, what about those
abusive political regimes that have no mandate from the people to rule, and who
make iniquitous laws, but which are nonetheless efficient? (cf. Madzimbamuto v
Lardner-Burke [1968]). Is the fact that the system-validating basic norm, or
Grundnorm, is essentially presupposed, and therefore difficult to identify, not
somewhat problematic in terms of founding any sense of the structural coherence
and consistency of a legal system?
c. H. L. A. Hart - the practice theory of law
As a legal positivist, Hart agrees with Austin and Kelsen that law and morality are
conceptually separate but he claims that Austins definition of law is much too
narrow. While Austin is correct in relation to some areas of the law (eg. criminal law),
the situation is different when we look at laws that facilitate action (e.g. contract
law, which describes the conditions a person must fulfill in order to enter into a
legally enforceable agreement). Moreover, the laws of many societies are obeyed
by their citizens not through fear of sanctions but as a result of a sense of obligation
and respect for the legitimacy and authority of the lawgiver. Hart argues that
coercion is only one part of the story: an external aspect of law that forces people
to act out of fear. And to focus solely on the commands of a sovereign and the
actions of her officials in imposing sanctions is to miss completely the internal
aspect that is characteristic of all law. Hart calls this sense of obligation that people
feel towards obeying the law the internal point of view.
There is an important difference, Hart argues, between being obliged (ie. being
forced to do something) and feeling oneself to be under an obligation (ie. doing
something out of a sense of duty). The so-called command theories only explain
the first of these, ignoring altogether this internal aspect of compliance that is the
central inducement to action; in any case, the external aspect only really comes into
view when there is a breach, when the officials have to apply sanctions. Command
theories, which emphasise sanctions imposed as a result of breach, do not include
this sense of a rule as an accepted standard of behaviour, where people obey
anyway, since they accept the rule as standard and use it to measure and evaluate
their own and others behaviours and to justify their criticisms of these. So Hart
attempts to improve upon Austins theory and provide a version of positivism that is
not a command theory of law. For him, law is about rules and he aims to provide an
understanding of law that separates this from ideas of coercion and morality, which
explains law as a distinct social phenomenon.
For Hart, law is a form of social control based upon legal rules. It can only be
understood properly in terms of those social facts, such as the language and
attitudes that people have and through which they express their ideas about law. So
he attempts to provide an understanding of what makes law to be what it is based
upon his ideas about legal rules. To do this, he first of all introduces a distinction
between primary and secondary rules.
Rules are statements about accepted standards of behaviour. Legal rules are rules
are so arranged that they interact with each other systemically to form a body of
rules that justifies the description legal system being applied. Within this, primary
rules are rules that create obligations by stating what people must or must not do

(rules of obligation) and these sort of duty-imposing rules are found in all
societies, even primitive ones: even the most primitive society, if it is to continue as
a society at all, must have primary rules against the free use of violence, theft, and
deception - if you could never depend on not being killed by your neighbour, then
you would never associate with any one else and social living would become
impossible! In this way, the validity of these rules may be seen to depend upon a
critically reflective attitude, an internal point of view that makes possible the sense
of obligation that the members of a community feel towards obeying its laws.
However, primary rules are not enough. If the only type of rules that exist in a social
grouping are primary rules then the members of that social group will be faced with
at least three problems: (i) there will always be a continual state of uncertainty eg.
there will be no established way of settling disagreements that over what the rules
say, or whether any particular principle is a rule of law or some other type of rule;
(ii) the rules will be too static - although new types of situations will continue to arise
that are not already covered by the rules, there will be no efficient way of
deliberately altering the rules since the requirement of consensus will mean that the
only way the rules will be able to be changed is slowly, by a sort of natural evolution;
(iii) the system will be inefficient how would they be able to settle disputes over
whether a given primary rule really has been violated, and to what extent?
So we need another type of rules rules that tell us how these primary rules come
about and how they operate. Secondary rules are rules about primary rules and they
confer power on persons or bodies to be able to do something related to those rules.
There are three types of secondary rule (and each type corresponds to one of the
problems mentioned above):
(i)

(ii)
(iii)

rules of recognition: these rules specify the criteria for determining

whether a given rule is a primary rule: [such rules] specify some
feature or features possession of which by a suggested rule is taken as
a conclusive affirmative indication that it is a rule of the group to be
supported by the social pressure it exerts. The rule of recognition is
whatever a legal system uses as its final authority for determining
whether something is a law (eg. Whatever the Queen-in-Parliament
enacts is law) - these rules help to remedy uncertainty;
rules of change: rules that state procedures for making new laws and
changing existing ones (which may be public or private) - these rules
help to remedy the static nature of primary rules;
rules of adjudication: rules that confer competence upon judicial
officials to judge and enforce the law - these rules help to remedy
inefficiency.

To sum up, secondary rules provide ways in which the primary rules may be
conclusively ascertained, introduced, eliminated, varied, and the fact of their
violation conclusively determined. Hart uses these concepts of primary and
secondary rules to define law in this way: as a union of primary rules of obligation
and secondary rules.
The distinction between primary and secondary rules enables Hart to avoid the
problem faced by Austin, that, if Austin is correct, then the sovereign will be
completely above the law. On Harts account, whether a given principle counts as a
primary rule does not depend on the command of any sovereign; rather, it depends
on whether it meets the criteria set forth in the rule(s) of recognition.
Two further points:

Despite insisting on the conceptual separation of law and morality, Hart

nonetheless insists that it makes good sense to evaluate a system of law from
a moral point of view. He viewed himself to be a critical moralist and
considered that the separation of law from morality must encourage an
unrelenting moral criticism of law - the separation thesis should prevent the
uncritical acceptance of a law as moral simply because it was law.
While, on Harts view, there are international primary rules that impose duties
on states (e.g., treaties, and decisions of international judicial bodies),
international law nonetheless lacks secondary rules, such as rules of
recognition that would make it clear exactly what counts as a primary rule of
international law, and rules of adjudication, such as rules that might confer
authority on international judicial bodies like the International Court of Justice.

LAW AND MORALITY

1. Lon Fuller - the governance of rules
If Austin and Kelsen sought to understand law without reference to ethics and
morals, and Hart accepted only grudgingly some elements of morality within his
system, then in Fuller we encounter a fully-fledged account of natural law theory.
According to Fullers approach, the validity of law is not accounted for through
formal criteria but requires compliance with universal moral laws. It also brings to
the fore an important question in respect of which areas might be deemed suitable
for legal regulation.
Fuller contends that any search for a pure theory of law necessarily leaves out the
question of the ultimate purpose behind the modern legal order, in terms of which
the law is understood to be a special type of rational order. Contrarily, law consists
not just in the duties it imposes but as an activity the expertise of subjecting
human conduct to the governance of rules that is controlled by its aspiration. Its
purpose, in this sense, is to prevent our being governed by the arbitrary will, and to
reduce irrationality. Law, as an essential element of civil power expressed through
civic order, ensures that we are not dominated by the arbitrary will of officials who
claim to know better than us what is best for us, and it acts as a curb on their power.
Law opens up the possibilities for free communication between and among people.
Fuller attacks those positivistic approaches to law that understand law either merely
as a technique for expressing the will of some ultimate superior person(s) or as
some complex rule-based form of social ordering, describing such approaches as a
kind of managerialist legal theory, as something more like an economic enterprise
run under the direction and supervision of a group of managers whose succession of
momentary decisions are made with reference to a set of goals and policies. Within
such an enterprise, it is simply the question of which actions taken by whom to
secure the corporate aim most efficiently that determines what should be done and
how. While this may be an appropriate way to organise a large corporation it is not,
Fuller argues, an appropriate way in which to organise political society as a whole.
Rather, Fuller suggests that the proper way of putting ourselves under the
governance of rules is through what he terms as legality, a complex ideal that
embraces the standards for assessment and scrutiny of all decisions that purport to
be legal. Through legality all official action, however well-intended, is enmeshed in
and restrained by this complex web of rules, and no power is immune from criticism.
In this sense, law is properly seen to involve its own procedural inner morality, with
constraints deriving simply from laws formal features or characteristics, and thus
not from the content of law as such, nor from any external or absolute moral creed,
but from its form as an order of our putting ourselves under the governance of
rules - a partial actualisation and depiction of the values and ideals which Fuller
understands to be associated with the notion of the Rule of Law the correct form of
which ultimately guarantees moral boundaries.
What are the characteristics of legality?
Fuller adumbrates eight features of this inner morality of law:
1. There must be rules though they may apply to a single person they must be
general in scope;
2. Promulgation the law must be (available) known by all;
3. No retro-activity although it might sometimes be necessary to adopt as
curative for defective legislation some retro-active measures;

10

4. Clarity we must be careful not to introduce too much vagueness into the law
(but what about concepts such as fair and reasonable?);
5. Non-contradictoriness rules must be compatible with various moral and
social contexts;
6. Laws must not require the impossible this is perhaps obvious (but where do
notions of fault and negligence stand in relation to concepts such as unjust
enrichment and strict liability?);
7. Constancy there must be a balance between order and change in law;
8. Congruence there must be agreement between declared rules and official
action (but where does this leave the question of the interpretation of rules?).
Fuller does not say that these eight features must be applied in every situation but
that the condition of something being properly called a legal system is they must be
present in some degree in the legal system as a whole: legality is the art of
balancing them against each other so as to get the correct mix.
To conclude, Fullers notion of laws procedural inner morality is a fascinating and
imaginative attempt to capture the idea of a well-ordered legal system and the Rule
of Law. But does it capture all that we would want to say? Are there omissions? What
about facts and fact-finding? Does the list as mentioned sufficiently highlight
those aspects of the characteristics of law and legal order that we would want to
include? Moreover, precisely what is it about Fullers account that makes it so
different from any other purely formal account of the virtues of law? And further, in
order that it might work, does it not presuppose some particular understanding (and
adoption) of certain basic rights underpinning the legal order?

2. John Finnis - morality and the law

For Finnis, although the law can be understood as a system, it is not merely from its
pedigree that it gains its normativity; rather, laws normativity stems from the fact
that we recognise it as the right thing to do, and we recognise it as the right thing to
do because we understand that it instantiates the inherent values of the universe.
What are these values?
Finnis lists seven such values (to which all other values and virtues are subordinate):
life, knowledge, play, aesthetic experience, friendship, practical reasonableness and
religion. These values are models of realising or participating in basic goods (goods
which are good in themselves).
But how do we know that the basic goods are good?
The majority correspond to our inherent drives or instincts - it is because we are the
kind of beings that we are that they are the basic goods. Yet it is not so much the
drives themselves as the way in which these drives are transformed by our
intelligent understanding of them that secures them as such ... we are not mere
animals!
How does this involve law?
Law is an aspect of some of these basic goods. For Finnis, there are basic goods that
are self-evidently good. On this basis, he proceeds to argue for a belief in the
Common Good of a community. Reasonable and friendly human beings will
recognise a need for community as the necessary context for pursuing the good.

11

The Common Good is the realisation of a good shared by all members of the
community, a necessary condition of which is the creation of a condition whereby all
members of the community have full opportunity to share in the good (to be able to
use their practical reasonableness to realise other goods). In this sense, it
necessarily involves a concern for justice. Law, as well as politics, must assist in the
pursuit of this common good.
What is a just and well-organised society?
This is itself a question of practical reasonableness. Essentially, a good society is one
that equips its members universally with a full and equal opportunity to realise
whatever seems to them, consistent with others having the same opportunity, to
constitute their best life plan. For example, we might say that only given a
substantial amount of freedom from regulation can one act in a spontaneously selfregulating way, and only a spontaneously self-regulating person can participate in
the good, but what is good is equally and unconditionally good in all its various
manifestations across persons generally so that no person can say that her good is
better than an others good as such. That is, while each has a primary responsibility
for her own good and that of her family and friends - no priority of right attaches to
this priority of responsibility.
So, a healthy community requires some common authority acceded to by all;
otherwise, it becomes impossible to live together in community. The adoption and
implementation of a common code of conduct by and for a community requires the
institutionalisation of some agency or system of agencies to adjudicate on breaches
of that common code. Just so, the more complex a political society becomes then
the more rich and diverse the opportunities it presents for varied manifestations of
the good and, so also, the more wide-ranging the problems this presents for coordination with each other. Hence, the need for ever more sophisticated forms of
agencies to adjudicate, enforce, administer, amend and enrich its common and
authoritative code of social conduct and organisation.
What all of this means, Finnis declares, is our need for a legal order as a necessary
part of the common good. We achieve practical goods in legally and politically
ordered societies (indeed, we appear unable to achieve them otherwise) that
acknowledge not only the authority of law but also the subordinate and derivative
authority of those who make and administer laws. Here, our practical
reasonableness tells us that law is, and should be, structured through legality and
the Rule of Law.
So what does all of this imply in terms of the relation between law and morality?
Finnis argues that when one makes a legal judgment one is eo ipso making a moral
judgment. To say that one legally ought to do something is to imply that there is a
moral reason on that account. So the question is not so much about how any
particular law came into being but about whether it is just. Does this mean that an
immoral law is no law at all? For Finnis, the question is somewhat irrelevant: one
cannot describe a social institution such as law apart from a notion of what is good
for human persons in community. From this perspective we can calculate how well
individual laws measure up: if they do, we can rightly call them laws; if they do not,
they are approximations of laws.
Nonetheless, whether we call something a law, an approximation of law, or no law at
all, it is clear that we are still left with the problem of what to do? In effect, there
seems little practical difference to be had either way of the theoretical disagreement
between saying, on the one hand, that something is immoral and therefore not a law

12

and, on the other hand, that it is a law but immoral and therefore not to be obeyed.
At any rate, however we view the matter of the source of laws validity, it is true that
most people do not stop to ask themselves, when confronted with what purports to
be a valid law, whether they should obey a valid law. The answer to this question
seems too obvious.
Or is it? Precisely because the law has such powerful legitimatory force then we
must confront the question: To what extent does our natural tendency to
unquestioningly obey valid law promote acquiescence in manifestly unjust
regimes?

13

Week 5
Lectures:

Judges and their Decisions

Legal Reasoning and the Rule of Law

Reading:
* Veitch et al. (2012), pp. 114-131
Meyerson (2007), pp. 33-49, 89-98
* Hanson, S. (2010), chs 7, 8

Further Reading:

LEGAL REASONING AND THE RULE OF LAW

The image of law that predominated in the 19th century: only a legal system with
clear and coherent rules, precise, scientific terms, and with perfectly analysed and
synthesised concepts that are used consistently, is capable of guaranteeing the
Rule of Law.
ie. Law comprises a set of general and logically consistent rules capable of being
deductively applied to every relevant case of proven facts. Thus, judges as the
executors of Parliaments will, applying the law in a mechanical and mechanistic
way.
Formalism presents law as an entirely self-determining system. In this sense, it may
be seen as the realization of the rule of law, where government, in all its actions is
bound by fixed, known, general rules, which are fair and certain and predictable.
Rationality, Formalism and Logic in Legal Reasoning
While this view most obviously represents one ideal of law in relation to statutes, it
has also been applied to case law, by reference to the logical formulations of
deductive reasoning, such as the syllogism.
Two examples:
Example 1:
Ex p. Mwenya [1960] 1 QB 241 (per Romer LJ at 303-4):
The essential connection of the Crown [in this case] may be expressed
syllogistically as follows:
(i)

The writ of habeas corpus will in no circumstances issue into any British
protectorate;

(ii)

Northern Rhodesia is a British protectorate;

(iii)

Therefore the writ will not issue into Northern Rhodesia

14

Sentences (i) and (ii) above are premises, while (iii) is the conclusion of the
argument. Sentence (i) is the major premise and sentence (ii) is the minor premise.
This is a deductive argument. Another way of representing it in simpler form is as
follows:
ie.

[Major premise]

All M are P

[Minor premise]

S is M

[Conclusion]

S is P

Note: the validity of the argument depends solely on its logical form: as long as the
premises are true, the conclusion must also be true. You cannot affirm the premises
and deny the conclusion: this would be self-contradictory.
Example 2:
Knuller v DPP [1973] AC 435 (per Lord Diplock at 470):
(i)

Every agreement to do any act which tends to corrupt public morals is a

crime at common law;

(ii)

Shaws act of publishing advertisements for prostitutes soliciting

fornication tended to corrupt public morals;

(iii)

Therefore Shaws agreement to do that act was a crime at common law.

[Another way to put this is in IF, THEN sentences (see N. MacCormick, Legal
Reasoning and Legal Theory, pp 20-32, and, in particular his analysis of the Daniels
case)].
The Reaction Against Formalism
The American Legal Realists (Llewellyn, Frank, Oliphant, Holmes, etc).
Two forms of realist scepticism: fact-scepticism and rule-scepticism.

Fact-scepticism: facts are not so much independent entities that the

legal processes discover but propositions about a reality that is
generated by these processes.
Rule-scepticism: rules do not and can not play the determinative role in
legal decision making that formalists assert.

The American Legal Realists argued that the formalist assertion about law as a
system of known rules applied by a judge to yield automatic conclusions is no more
than pretence.
The life of law is not logic but experience (Holmes).
Judges cannot decide cases simply by following rules and precedents because these
rules are indeterminate. Judges always have to make interpretative choices because
of:

Ambiguity of legal language (cases and statutes are open to multiple

interpretations)

15

The avalanche of precedents (you can find a precedent for just about
anything!)
Multiplicity of techniques for deciding ratio (means that it is hard to
know exactly what a precedent established)
The breadth of precedent (how do you decide whether to give a narrow
or a broad application of a precedent in order to ascertain whether an
old rule will cover an altogether new - or unprecedented - situation?)
The potential for distinguishing (since no two cases are ever identical,
what are the important differences, of law and fact, for the purposes of
decision making?)
The potential for comparison (cases once thought quite separate may
now seem quite similar in some (now) important respects).

Rule sceptics find serious contradictions in both statutory interpretation and the use
of precedent. There is always an element of other factors, often extra-legal, that
creeps into legal determination, and these other factors can cause law to operate
randomly.
Also, it is wrong to assert that judges work forwards from rules to outcomes;
actually, the reverse is the case.
Therefore, law is best characterised as a policy battleground, where formalism only
acts to serve those interests that benefit from hiding what are otherwise decisions
based on policy. In this sort of environment judges ought properly to take a stand
openly.
The realist arguments reveal some of the underlying tensions about law (eg.
between justice and instrumentalism) and have had an enormous impact on
subsequent arguments about law; for example, over the question of whether the
ideal of the rule of law is nothing but a myth.
Clearly, judicial creativity in decision making poses a very real challenge to the
doctrine of the separation of powers and thus also to the rule of law ideal. So, we
turn next to consider some possible responses to the Realists ...

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Week 6
Lectures:

What is a Hard Case?

Hard Cases and the Scope of Substantive Reasoning

Reading:
Veitch et al. (2012), pp. 131-137
Meyerson (2007), pp. 61-75
Further Reading:
Hart, H. L. A. (1994), The Concept of Law (Oxford: OUP)
MacCormick, N., (1978), Legal Reasoning and Legal Theory (Oxford: OUP), Foreword
and ch. 2
MacCormick, N. and Summers, R. (1991), Interpreting Statutes (Dartmouth), ch. 13
(pp. 511-25).
MacCormick, N., (1991), Why Cases Have Rationes and What These Are, in
Precedent and Law , L. Goldstein, ed. (Oxford: Clarendon), pp. 155ff.
MacCormick, N., (1979), The Artificial Reason and Judgement of Law, Rechtstheorie,
Beiheft 2, pp. 105-120.
MacCormick, N., (1978), Legal Reasoning and Legal Theory, OUP, ch 5 and pp. 157ff.
(on Lord Atkins neighbour principle).
WHAT IS A HARD CASE?
According Hart, in every legal system there must be a balancing of certainty with
openness to the future and it is up to the judges to decide when and how this will
take shape. This is a positive thing: it is what enables us to act in the future as
situations arise - and our use of general terms is something that this implies.
So, Harts position, here, is really one of extended formalism - but, as we will see,
although he is somewhat closer to the formalists than the realists, he does make
some concessions to the realist approach.
For Hart, rules are important in deciding cases and in most cases they will determine
the outcome provided there is no great problem of interpretation. In most cases, the
core instances will be clear factual examples.
However, sometimes we will get hard cases. Why does this happen?
It happens, Hart agrues, because of what he calls open texture, because of a
fuzziness around concepts that arises because of :
1.
use)

The nature of language (the way that meanings change over time with

2.

Ignorance of fact (we cannot know what the future will throw up)

3.
Indeterminacy of aim (in one sense, this is impossible and unattractive
for law but it is tied to open texture through our use of general terms - such
as good faith or due care - but, on the other hand, this very use of general
terms provides us with a way of achieving certainty. Certainty comes when a
rule is combined with an appropriate judgement.

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How, then, might a theory of legal reasoning be developed on the idea of open
texture?
Open Texture and Legal Reasoning: Balancing Certainty with Openness
Consider, for example, the case of MacLennan v MacLennan.
Mr MacLennan is pursuing an action for divorce on the grounds of adultery in the
Court of Session. His essential point is that since it is one year since his last meeting
with his wife and his wife is now pregnant, then she must have committed adultery
in order to be found in the state she is now in. However, Mrs MacLennan argues she
has undergone artificial insemination by donor (AID) and so she is not guilty of
adultery. Mr MacLennan argues that this excuse is irrelevant. So the question for the
judge is, in a nutshell, is this act, of becoming pregnant against the wishes of a
husband, adultery, or is it not?
In thinking about law in terms of a system of known rules applied to particular facts
there is an assumption that a rule is applied whenever the conditions of its
application are met. That is, there are, in accordance with any rule, certain
operative facts that bring the rule into operation - lets write it this way:
X1 + X2 + X3

And, in the instant case, there will be certain primary, or evidentiary facts - lets
write that this way:
a1 + a2 + a3
Therefore, the question is whether, between the primary evidentiary facts and the
operative facts, there is a co-incidence such that, occurring together, this will
necessarily bring the rule into operation. Put slightly differently, we are asking this:
is a1 an instance of X1, a2 an instance of X2, and a3 an instance of X3, such that we can
conclude therefore, Q ( ie. Q) ?
At first glance, it would seem, given the relevant facts, that there is a prima facie
case for asserting that the conditions which would bring the rule into operation are
satisfied (a1 + a2 + a3 appear to be instances of X1 + X2 + X3 ); on the other hand,
while we might disagree with Mrs MacLennans decision to engage in AID without
the consent of her husband, it is clearly not grounds for adultery. Therefore, we have
a hard case. Why is this a hard case? Because its an unforeseeable case - a new
case that had not and could not have been provided for by the law when it was
enacted.
In MacLennan, the court argued that:
(a)
the evidentiary fact of AID without the consent of the husband, a 1, could
not be classified as an instance of the operative fact, X 1, adultery, and also
that
(b)
adultery, X1, could not be interpreted widely enough so as to include in
it that fact, a1.

18

Notice the legal importance of stating it like this - it is crucially relevant in terms of
appeal (-

Can this be read as an instance of that?

Can that general category be read as including this particular fact?

In reasoning it amounts to the same thing, but in legal appeal it has very different
implications - you can appeal on a point of law, but not on fact.
This is a hard case because there is a penumbra of doubt surrounding it, because it
is not obvious that Mrs MacLennans act is adultery and also because, although we
might be running out of rules to reach a legal decision, we still have to reach a
decision.
A hard case occurs because of an ambiguity, or a gap in the rules. When? When
language is open texture - when there is a penumbra of doubt due to the nature of
language, ignorance of fact, indeterminacy of aim.
For Hart, you cannot get away from open texture, and you cannot eliminate it
however far back you go (for example, perhaps we might argue that in hard cases
what we should do is look to legislation for an answer. But what if there is no
legislation? Or even if there is, it may still not be obvious what it means, and so we
look for the intention of the legislator. But, again, intention is itself open to
interpretation ...... and so it goes on .....!).
Nonetheless, according to Hart, even though it compromises the certainty and
predictability of law in this way open texture (and the existence of hard cases) is,
nonetheless, a good thing. Why? Well, because it allows the law to develop. Before
the judge decides, there is no identifiable way, already existing in law, that can be
followed. The judges answer is right when it appropriates to the particular question
and, in so doing, it allows the law to progress.
Take another example. In the context of industrial accidents the law is that an
employer has to exercise due care. But due care is ambiguous. Nonetheless, for
Hart, this is attractive, precisely because it involves two competing aims: on the one
hand, there is the need to protect a vulnerable category - employees - since an
accident may deprive them of the means to survive; on the other hand, if employers
are made wholly liable, then there is a financial disincentive to invest. So, we need
to balance these, which is precisely what judges will do when such cases come
before them for determination.
For Hart, the vice of formalism is that sometimes we take certainty too far;
whereas, in decision making the reality is that a judge must balance certainty
(whether something is within a category) with openness (a receptive attitude to
hitherto unforeseeable instances). [Of course, the formalist might just as easily
respond that all that this does is increase the opportunities for making the wrong
decision - because how do we know when to compromise certainty to openness?
Does the law tell you when this can be done? Or is it simply up to the judge to
decide when this is to be done? And perhaps this points to just how vulnerable
Harts theory, about open texture and hard cases, is to counter-attack].
So, hard cases occur because of open texture - eg. maybe there is a gap in the law
(we have no major premise) or there is ambiguity (either the operative fact does not
cover the instance or the evidentiary fact is not clearly an instance of the general
category). When this occurs, we have a hard case. Even so, the judge still has to
provide a decision. So the question emerges: how does the judge exercise

19

discretion? According to Hart, in such cases, judges have an unfettered discretion

on how to balance certainty with openness in order to reach the decision that
decides that matter in law.
Final thought:
Q. Why is open texture, as Hart puts it, an attractive feature?
A. Because it brings to the fore so successfully, and fruitfully, cases that are
undetermined, the law can advance - ie. improvement, or progress, is made
possible.

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HARD CASES AND THE SCOPE OF SUBSTANTIVE REASONING

Drawing upon and expanding Harts theory, Neil MacCormick attempts to generate
an effective reply to realism by demonstrating
(i) the place of established rules as normally applicable by simple deduction in
clear cases, while also indicating
(ii) the underlying logic of legal argumentation in its non-deductive elements.
He offers an extended formalism that tries to show how formalism can encompass
both common law reasoning and substantive reasoning.
That is, his theory offers us criteria for reasoning/judging in hard cases. If you like,
its a theory about the constraints governing decision-making when you have a hard
case. How does it work?
MacCormick identifies several stages, or constraints, that operate to guide discretion
in legal decision-making: Universalisability; Consequences, Coherence; Consistency.
1. UNIVERSALISABILITY.
To give an adequately justified decision on a novel point, a judge must give a ruling
on the point in issue, but, according to the doctrine of formal justice, the way you
decide a hard case must be the way you decide every such case in the future ie.
you must treat like as like.
So, universalisability is both backward- and forward-looking:
- backward if a similar case in the past , then this case the same
- forward in the future, every like case the same
In other words, every time you have a similar case, you must treat it in the same
way (eg. in Donoghue v Stevenson, this would translate as you must be prepared to
act every time in this way to every manufacturer who treats every consumer like
this)
So universalisability, or generalisation operating under the control of the doctrine of
formal justice (you must treat like cases alike), is a necessary aspect of what you
do when you run out of rules: it is the first of the legal controls on judicial discretion.
However, what is properly evaluated is not merely the individual decision between
the parties but the consequences of the ruling about the point(s) in issue: ie. what
will be the result if this as opposed to that, among the rival propositions of law
proposed by the rival parties in the case, prevails?
What this means, is that substantive reasoning in law, which requires
universalisability of grounds of decision under the constraint of formal justice, also
appears to involve the embracing of consequentialist argument; that is, the explicit
or implicit ruling by the court on the questions before it must be tested and justified
in terms of the courts evaluation of its consequences. We can see how this would
operate in terms of the decision making process in Donoghue ...
We have to fix each general category in the rule (X1 + X2 = X3 ...) in order to arrive
at Q, and there are an infinite number of ways of describing Mrs Donoghue.

21

However, what is relevant for the category is that she is a consumer. So the second
constraint on decision making is consequences.
2. CONSEQUENCES
Universalisation requires you to fix the genus, and to do this you must consider
consequences. That is, the consequences that the legal system can accommodate
and/or the consequences that the judge is willing to include/contemplate.
We can see this in Donoghue v Stevenson. Inasmuch as this is about corrective
justice, then it is evaluative; that is, it involves a common-sense decision, one that
reasonable consumers would expect. But its also subjective: its about policy the
regulation of daily life and the judge has to decide whether the outcome will help
to promote the policy handed down from the government.
How does the judge balance out these competing aims of common sense and
policy? The answer is by looking at the consequences. ie. consequences balance
universalisability.
What does this mean? Well, we might find that we have, say two, equally valid but
competing rulings that could be made:
Either,
A. X can recover damages,
or,
B. X cannot recover damages.
Which prevails - A or B?
~A (not A) to be fixed.

The point is that deciding positively one way, for A, allows

But even if we decide that, for example, the ruling for A trumps here, we still have to
decide if A is coherent with the body of our law before we can claim it as a rule.
3. COHERENCE.
Judges are required to decide cases only in accordance with rulings that are
coherent with the existing body of law, and supported by it. Moreover, valid rules of
law are justified or explained by reference to principles, which are norms of
considerable generality that, in turn, are founded upon commonly held or universal
values. In other words, whatever rule we come up with through fixing the general
categories in this way must also be shown to be justifiable by reference to some
legal principle, and thus coherent, with already settled law. Thus, coherence is the
third constraint on decision making.
So, what this means is that we have to find some principle of generality under which
we can subsume the rule that we have formulated and this has to be a principle of
settled law, not just something pulled out of thin air. Even if we have decided on
the ruling that A trumps, it still has to be shown to fit within our system by finding
the relevant principle under which to subsume it - unless we do this then it must fall
(eg. if we could not show that there was a governing statute or a contract, then
there would be no liability).
How is this done in Donoghue? By reference to the neighbour principle - in law, we
understand that if someone is injured and I could have foreseen the harm then I
have acted negligently because in this sort of situation I owe a duty of care. But
where does this principle come from? According to MacCormick, Lord Atkins
discovery of the neighbour principle does not represent something new,
established for the first time and thereby read into our law. Rather, it ought to be

22

understood as the explication of a general principle to which we are already

committed. But, however coherent it may be with the body of existing law, the
chosen ruling must also not contradict any other established rule of the system: it
must be consistent with the other rules.
4. CONSISTENCY.
Rulings must not be inconsistent with pre-existing laws or directly contradict some
binding or authoritative rule. What this means, effectively, is that we either have to
establish that - and why - this new case must to be treated differently on this ruling,
or else it will not do (ie. we must either distinguish it successfully, or reject it).
So, decision making in a hard case involves balancing universalisability with ruling
on the consequences, all of which requires a legal warrant. Then, formulating the
rule, we must show, first, its coherence with the body of existing law and legal
principles and, finally, its consistency (non-contradictoriness) with established rules
of law. (And all of this may be seen as building on Harts linguistic criteria of open
texture).
Week 7
Lectures:

Language and Narrative in the Courtroom

Reading:
Veitch et al. (2012), pp. 128-129, 159-167
Further reading:
Frank, J., (1970), Law and the Modern Mind, Peter Smith.
Twining, W. (1984), Some Scepticism about Scepticisms, Journal of Law and Society,
Vol. 1, nos 2 and 3.
Bennett, W. and Feldmann, M. (1981), Reconstructing Reality in the Courtroom,
Rutgers.
Bankowski, Z., (1981) The Value of Truth, Legal Studies 1.

LANGUAGE AND NARRATIVE IN THE COURTROOM

When we say that law is a formally rational system, we mean that its decisions, its
points of law, can and will be rationally deduced from the rules. Remember the
syllogism:
If P, then Q
P.
Therefore, Q
Or,
If you commit murder, then you will get life
You commit murder.
Therefore, you get life imprisonment
That is, the way we decide is about whether someone fits under the rules. But, as we
have seen, there are problems with rules. The rules of law can be vague, unclear or
ambiguous. And more, facts can also be categorised in different ways. For example, I
fire a shotgun into a room. People are killed. Am I guilty of murder? It all depends on
how you categorise the facts: on whether this fact an instance of that rule?
But how do we find out these facts? And how do we decide which facts are relevant,
or material, and which are not? ie. What actually happened? Did I actually pick up

23

the shotgun? How, afterwards, can I find out whether these so-called facts occurred
at all?
The method we use for finding this out is the trial. We do so because we demand a
method that connects with the outcome. Proof cannot simply be left to judges
discretion, but judges need to be constrained in some way, under rules that are
publicly accessible. In other words, for a legal system to work, not only must our
determinations of rules stem from rules, but the facts, too, must be found in a just
way, one that is shown to be just. This means that our notion of the Rule of Law
must accommodate a rational process of fact-gathering, and that process must be
just.
According to Jerome Frank, an American Legal Realist, our system of trials is really
not that much different from tossing a coin or throwing dice. The rules of law can be
made to mean whatever you want them to. But were too concerned with rules, he
claims. Its all part of what he calls AppealCourt-itis. For Frank, a large part of laws
unpredictability arises not from the ease with which rules are manipulated but from
the facts as found by the court. In most cases - where they first really matter, in the
lower courts - its not the rules but the facts that are in dispute. And the way we go
about getting at these facts, with judge and jury, inevitably means that law is
unpredictable - the likelihood is that the facts as found wont correspond to the
actual facts.
How is it, asks Frank, that a system that has its roots in trial by combat is just?
Surely justice demands that law is treated as more than a fight. Its almost as
though we think that provided both sides lie to the best of their ability then, from out
of this, we will somehow manage to get to the truth! It is ridiculous to assert, says
Frank, that this enables us to get at the truth. Every sensible lawyer interviews
witnesses beforehand, so witnesses mould their stories according to their
perceptions of what they believe the lawyer wants to hear, to assist one side rather
than the other. The idea that somehow, out of all of this, the truth will emerge, is
nonsense!
Fight Theory vs Truth Theory
For Frank, what we have is an accusatory system that is far too much overlaid with
the relics of past modes of trial by combat, etc. We need to be more interested in
finding out what happened, not just who wins. Our processes fail because people are
only interested in getting a result, not in the truth, and our procedures are there, not
to get at the truth, but to enable each side to get its point across. We need to ditch
this kind of system, says Frank, and we need to get experts to train our judges in the
practice of judging, with role-playing, psychoanalysis etc, and, above all, we need to
cut down on jury trials and move from an adversarial to an inquisitorial system. We
need a system based more firmly on scientific rationality, where the judges role will
be to direct the search for the truth.
But arent there problems with this view, too?
Is the inquisitorial system really neutral and objective? Dont scientists sometimes
do fraud with figures to help the system along just as police officers occasionally
do with details? Would a system set up in this way be any more impartial, or more
legitimate?
Moreover, Frank appears to talk of facts as existing unproblematically out there,
what we might call a correspondence theory of truth, as if there were some way of
gaining direct access to discreet facts and that the sum of all of them added

24

together would tell us whether or not it is true. But were never looking at separate
items; rather, were always looking at, or for, the whole story in light of which these
facts may be understood as making sense. What were looking for is a coherence
that enables us to judge the truth of a story. When we say he did it! what we mean
is that the story makes more sense if he did it than if he did not do it (read Neil
MacCormicks comments on the case of the R v Voisin [1918] 1 KB 531, in his Legal
Theory and Legal Reasoning (Oxford:Clarendon, 1989, 1995), pp. 89-93).
But the problem with this is that what counts as coherence sounds just a bit too
much like jigsaw puzzles, with opportunities for bias, prejudice and misinterpretation
to creep in. How a story is put forward in court can influence the way in which a jury
and others will see it: they will compare this story with their stories. Coherence
means making the story patterns match. And here it is easy for bias and prejudice to
creep in.
So, can we never get at the truth? That depends on what we mean by the truth. For
Frank, this is where science comes in. Science operates as a system for testing
theories, whether they are true or not. Just so, in law: something counts as true or
not by going through laws own internal channels for ascertaining truth. We have
criteria against which to judge the truth of things and we can only, in the end, look
at everything we see through the prisms of the systems we have.

[**The week 7 second lecture, The Role of the District Judge, by District Judge Peter
Glover, will be delivered on Thursday morning in week 8 in 65/1133 at 1100].

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