Judicial discretion and the concept of law

The theoretical core of positivism is thought to consist of three theses about the nature of law. The separability thesis denies the existence of necessary moral constraints on the content of law. The pedigree thesis articulates necessary and sufficient conditions for legal validity having to do with how or by whom law is promulgated. The discretion thesis asserts that judges decide hard cases by making new law. While it is often assumed that these theses form a coherent theoretical whole, such an assumption is false. Construed as a claim about all possible legal systems, the discretion thesis is inconsistent with the pedigree thesis. Construed as a claim that is true in some, but not all, possible legal systems, the discretion thesis makes a fundamentally different kind of claim than those made by the pedigree and separability theses and hence should not be thought of as part of positivism's theory of law. Historically, positivism arose in response to classical naturalism, according to which it is necessarily true that whether a proposition is legally valid depends on whether its content conforms to morality. Blackstone describes the view as follows: This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.' Aquinas describes the view in similar terms: 'every human law has just so much of the nature of law as it is derived from the law of nature[;] ... if, in any point, it departs from the law of nature, it is no longer a law but a perversion of law'.2 According to classical naturalism, the overlap of the content of law and morality is not a matter of contingent fact; rather, it is part of the very concept of law that its content conform to certain moral requirements. Thus, classical naturalism * Department of Philosophy, University of Washington. 1 W. Blackstone, Commentaries on the Laws of England, Volume 1 (1865) (Chicago: University of Chicago Press, 1979) at 41. 2 Saint Thomas Aquinas, Summa Theologiae, I-II, Q.95, A.2. ? 1999 Oxford University Press This content downloaded from 157.55.39.59 on Sat, 15 Oct 2016 04:44:23 UTC All use subject to http://about.jstor.org/terms 72 Oxford J7ournal of Legal Studies VOL. 19 asserts that there cannot be any laws that are inconsistent with these moral requirements. Austin characterized this assertion as 'sheer nonsense', pointing out that '[t]he most pernicious laws, and therefore those which are most opposed to the will of God, have been and are continually enforced as laws by judicial tribunals'.3 Indeed, Austin's famous thesis that '[t]he existence of law is one thing, its merit or demerit is another' amounts to nothing more than the denial of the claim that there is a conceptual connection between law and morality. According to positivism's separability thesis, then, it is not necessarily true that whether a proposition is legally valid depends on whether its content conforms to morality. Of course, positivism goes beyond denying classical naturalism's account of legal validity; positivism provides a competing account in the form of the pedigree thesis, which explains legal validity in terms of how or by whom standards are promulgated. On Austin's view, a proposition is legally valid in a society S if and only if: (Al) it is promulgated by a 'sovereign' who is habitually obeyed by the rest of the people in S but who is not in the habit of obeying any other person; and (A2) it is backed up by the threat of a sanction. Claims (Al) and (A2) make up Austin's version of the pedigree thesis, according to which a proposition is legally valid because it has been promulgated by a sovereign and is supported by the threat of a sanction. Hart's view, in contrast, is less concerned with who promulgates law than with how it is promulgated. While his version of the pedigree thesis is considerably more sophisticated than that of Austin, it can be summed up in the following claims: (Hi) a rule of recognition is a set of standards that prescribe procedures for creating, adjudicating, and changing laws; (H2) a rule of recognition is binding in a society S if and only if (i) the rules promulgated in accordance with the rule of recognition are generally obeyed in S and (ii) the officials of S accept the rule of recognition as a public standard of official behaviour; and (H3) a proposition is legally valid (i.e. is a law) in S if and only if it has been promulgated in accordance with the requirements of a binding rule of recognition in S or is (in some sense) a consequence of propositions that have been promulgated in accordance with such requirements. Claims (HI), (H2), and (H3) express Hart's version of the pedigree thesis, according to which a proposition of law is valid because it has been promulgated in accordance with the requirements of a binding rule of recognition or is (in some sense) a consequence of propositions that have been so promulgated. Though Hart's and Austin's versions of the pedigree thesis differ on a number of issues, both express the view that law is created by human beings through acts that can be characterized as official: in Austin's case, such acts are official in virtue of having been performed by the sovereign; in Hart's case, they are official by virtue of satisfying the procedural (and possibly substantive) requirements of a rule of recognition. 3 J. Austin, The Province of Jurisprudence Determined (1885; reprint, Cambridge: Cambridge University Press, 1995) at 158n. (Hereafter referred to as PJD.) This content downloaded from 157.55.39.59 on Sat, 15 Oct 2016 04:44:23 UTC All use subject to http://about.jstor.org/terms SPRING 1999 judicial Discretion and the Concept of Law 73 It is important to note that, like Blackstone and Aquinas, Hart and Austin understand themselves to be making conceptual claims about the nature of law. Austin, for example, describes his theory as stating 'the essentials of a law or rule (taken with the largest signification that can be given to the term properly)' (PJD, 12). Likewise, as the title to The Concept of Law suggests, Hart regards his theory as articulating claims about the concept of law: The lawyer will regard the book as an essay in analytical jurisprudence, for it is concerned with the clarification of the general framework of legal thought, rather than with the criticism of law or legal policy. Moreover, at many points, I have raised questions which may well be said to be about the meaning of words.4 But whether positivism is correctly characterized as a conceptual theory, this much is clear: the core theses of legal positivism are claims about what is true in every possible legal system. Indeed, Austin insists that his theory represents 'the essence common to all laws properly so called'(PJD, 12). While Hart refrains from using the term 'essence' in characterizing his theory of law, he also regards his theory as articulating what is common to all possible legal systems: My aim ... was to provide a theory of what law is [that is] general in the sense that it is not tied to any particular legal system or culture, but seeks to give an explanatory and clarifying account of law as a complex social and political institution with a rule governed ... aspect. This institution, in spite of many variations in different cultures and in different times, has taken the same general form and structure, though many misunderstandings and obscuring myths, calling for clarification, have clustered round it. (CL, 239-40) Regardless of whether their theories are properly thought of as conceptual, each of the claims in the above summaries of Austin's and Hart's versions of the pedigree thesis is intended to express a necessary truth about law. Accordingly, on Austin's view, there cannot be law in a society without a sovereign. Similarly, on Hart's view, there cannot be law in a society without a binding rule of recognition. While all this may seem obvious, we will see that such observations are of critical importance in determining whether the discretion thesis has a place in positivism's theory of law.