Reason and fiat in law
Creators: name: Cornett, Russell Walter
Publisher: name: University of British Columbia
Year: 2010

description: In this thesis I argue that contemporary legal philosophy provides an inadequate analysis of central indeterminacies in law. I focus on "judicial discretion" as central to current analysis. Positivists, such as H.L.A. Hart, argue that it is the contingencies of human society that give rise to uncertainty in the application of law. Therefore, they believe that judges must be given discretionary powers. Ronald Dworkin, an American philosopher, believes that judges should not be given such powers. For him, it is the positivists' conception of law that is amiss. He believes that once the institutions of law are correctly appraised, the need for judicial discretion will be seen as a conceptual fault arising from a positivist analysis. In order to provide a critical framework in which to assess this debate, I outline the Causal Theory of Law developed by Professors S.C. Coval and J.C. Smith. If the attention given the concept of judicial discretion represents a concern with subjective elements in law, then the attention given the concept of a rule represents a concern with objective elements in law. In a tentative way, one might interpret the question at issue as being: "Is law ultimately an affair of reason or will?" Other questions follow: "Is this a false dichotomy?" "Must law be a combination of both authority and power, rational argument and official fiat?" I address these questions indirectly through an examination of Ronald Dworkin's legal philosophy. I find that Dworkin fails to understand the nature and complexity of the problems that he confronts. He believes that legal systems can be designed so that authority and power, legitimacy and efficacy never compromise each other. He does this, however, by giving precedence authority. The causal Theory interprets such resolutions as "disjunctive". Dworkin's resolution betrays his inability to appreciate the complexity of the problem. He also obscures the nature of the problem by his "rights thesis", which interprets the issue involved as primarily a question of normative political theory. However, his conception of normativeness is ambiguous and requires analysis. I argue, against Dworkin, first, that indeterminacy in law is a problem for institutional design, and second, that to argue that this design problem is normative is to take a view that is overly narrow and ultimately misleading. I conclude that those involved in the philosophical debate surrounding indeterminacy in law erroneously think that the solution will take a disjunctive form: One side or the other, of the antinomy between reason and fiat in law must be rejected. In line with the Causal Theory, I argue that once this problem is seen as one of institutional design, the problem takes on an entirely new shape. It becomes one of management and experiment. The function of the law is to help manage the political affairs of society, and also to provide opportunities for individual and group initiatives. Man is limited in his experience and knowledge. In the design of legal institutions man's abilities are not infinite; he can hardly be expected to foresee all eventualities. But such indeterminacy remains a matter of degree, relative to man's knowledge and his ability to use it. The legal enterprise, as does the scientific, can proceed without a completely worked out set of agreements, or system of beliefs. What is essential is an understanding among the participants as to how such sets will be developed. The core remains empirical.