First of all, my most abject apologies for the silence of the last couple of weeks. I was swamped (and then trying to recover from being swamped). I have a lot to catch up on, if I can, not least the Supreme Court’s hate speech decision, Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11. But I want to ease my way back into the blogging routine, and to show you a bit of what I have been up to, so I start with a version of a passage from the paper I have been working on, eventually to be part of my thesis.
The paper explores the sources of the rules which judges apply in “hard cases”―cases the rules that can be found in the usual legal sources (the constitution, statutes, or precedents) are inadequate (more on what that means shortly). I argue that there are several such sources―at the very least, underlying legal principles, social practice, and what might properly be called “judicial legislation” or policymaking. Perhaps there are others, but I am not sure yet. Be that as it may, most legal philosophers who write about adjudication only focus on one of these sources, though not all on the same. Each has his favourite―for example, principles are Ronald Dworkin’s, pracitice F.A. Hayek’s, policymaking Richard Posner’s.
But why is it that these very smart people have missed the plurality of the sources of rules in hard cases? The problem, I think, has to do with the question what makes a case a hard one. It is often assumed that the answer is the absence of relevant rules in the standard sources of law (constitutions, statutes, precedents, etc.). Hence for example Cardozo’s description, in his great work on The Nature of the Judicial Process, of the judge as “legislat[ing] only between gaps,” “fill[ing] the open spaces in the law” (113), and Judge Posner’s assertion, in How Judges Think, that judges have “legislative freedom, albeit only in the subset of legalistically indeterminate cases.” (82). But that is not necessarily so.
A hard case, to use Posner’s description from elsewhere in the same book, is one “in which the orthodox materials of judicial decision making, honestly deployed, will not produce an acceptable result” (79; emphasis mine). Cases where these materials “may not produce any result” (ibid.; emphasis in the original) are only the more extreme subset of this larger category. (That sub-set, in turn, includes a sub-subset consisting of cases where the materials supply a rule that seems clearly applicable, and yet is too vague to be applied without interpretation.)
Hard cases are often hard not because the law “runs out” and leaves the court without a rule by which to decide, but because the court realizes that the application of the legal rule supplied by materials such as statute or precedent would be, as Posner puts it, unacceptable. This may be because the rule derived from the obvious law conflicts with general principles implicit in the law, or because it is at odds with practices and expectations of the society which they purport to regulate, or because it will produce bad policy outcomes.
This suggests that the reason for the often-unnoticed plurality of the sources to which judges turn in hard cases is the variety of the problems in order to address which courts articulate the previously unannounced legal rules. Sometimes the problem is that the orthodox legal materials have run out, or are vague; sometimes it that the rule supplied by these materials is at odds with the law’s structure or underlying principles; sometimes, it is a mismatch between the materials and the expectations of the community; sometimes it is that the materials produce bad policy outcomes. Seeing the function of adjudication as being predominantly, if not only, one thing―whether interpreting legislation, ensuring the law’s coherence or “integrity,” or adjusting it to the community’s expectations, or producing the best policy results going forward―naturally enough leads the theorist who falls victim to this tunnel vision only to see the source of adjudicative law which is most apt to help perform this function.
In reality, depending on which of the problems with the traditional legal materials which a court identifies in a given case, it will turn to a different source for formulating a new rule to resolve it. The obvious correspondences between the problems and sources―incoherence and principle, mismatch between law and expectations and social practice, bad policy outcomes and judicial legislation―do not always hold. A court may sometimes respond, for example, to a mismatch between social practice and the existing legal rules by reaching back to the law’s underlying principles to reformulate the rules, as Lord Atkin arguably did in his famous judgment in Donoghue v. Stevenson,  A.C. 562. Yet these correspondences hold often enough for me to leave the last word to Cardozo:
My analysis of the judicial process comes then to this, and little more: logic, and history and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate m any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. (112)