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Is there any virtue in treating “law” as a discrete system of rules? Can proponents of such a view withstand the concerns of critical legal theories?

Is there any virtue in treating “law” as a discrete system of rules? Can proponents of such a view withstand the concerns of critical legal theories?

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An essay for the 2011 Undergraduate Awards (Ireland) Competition by Helen Clarke. Originally submitted for Law at Queen University Belfast, with lecturer Sara Ramshaw in the category of Law
An essay for the 2011 Undergraduate Awards (Ireland) Competition by Helen Clarke. Originally submitted for Law at Queen University Belfast, with lecturer Sara Ramshaw in the category of Law

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Published by: Undergraduate Awards on Aug 31, 2012
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05/13/2014

 
1Warren E. Burger, former Chief Justice of the US Supreme Court, once said “Judges rule onthe basis of law, not on public opinion, and they should be totally indifferent to pressures of thetime”
1
. Whether this actually happens in practice has been debated for many centuries by legal philosophers. This essay will outline the key arguments of those thinkers who believe in treatinglaw as a discrete system of rules and the virtues of treating our legal system in this way. It willexplore the work of H.L.A. Hart and Professor Dworkin. Professor Dworkin, although critical of thestance of legal positivists, treats the legal system as a discrete system. He does to a limited extentaccept the infiltration of politics and morality into the law. However, as a I shall argue below, heviews the law in too narrowly by failing to take account of the law outside the courtroom situation.The essay will also explore the Critical Legal Studies (CLS) movement and their critique of the positivist viewpoint. I shall offer examples in legal practice where the law is neither created nor applied in an objective manner, highlighting that outside considerations can and do play a part inour legal system. A critique will be offered of the CLS to demonstrate that whilst the movement hascast an insightful and critical eye on the legal system, it has by and large failed to provide realsolutions to problems. In conclusion, the essay will demonstrate the concerns of the CLS areconvincing for broadening the legal system to value the experiential, but it has its own internal problems and therefore most still accept the “illusion” that our legal system is discrete.First it is important to define the key terms to be discussed. “Law” is defined in the OxfordEnglish Dictionary as “a rule of conduct imposed by authority – the body of rules, whether  proceeding from enactment or from custom, which a particular state or community recognizes as binding on its members or subjects.
2
For these purposes, the law will encapsulate statutes,regulations, case-law and precedent. The “discrete system of rules” can be defined as a legal systemwhich is free from any outside influences, for example politics, religion, economics, morality.Liberal legal thinkers such as positivists and interpretivists view the legal system, in varyingdegrees, as discrete and free from any outside influence. Positivists view the law as a social fact;laws are created by those empowered to make them. “The only law that counts is the law posited bythe legislator, a law which can be recorded and dated and, in application, observed and measured.”
3
.This approach views the law as a discrete system of rules. Positivism adopts an almost scientificapproach to jurisprudence but others insist it is more complex with “sacral and poetic”
4
theories of 
1E.M. Maltz,
The Chief Justiceship of Warren Burger 1969-1986 
, (Columbia: University of South Carolina Press,2000)2law,
n
” The Oxford English Dictionary, 2
nd
ed. (OED Online: Oxford University Press, 2009)3C. Douzinas & A. Geary,
Critical Jurisprudence: The Political Philosophy of Justice
, (Oxford: Hart. 2005), p1404
 Ibid 
, p141
 
2the nature of the law being incorporated making positivism a well rounded and successful theory of law
5
. Over the centuries positivism has developed greatly. Austin believed that laws were essentiallyorders and ongoing commands created by the sovereign backed by threats; it is this threat and thefear of sanctions which becomes the primary motivation for citizens to comply with the law
6
.Although it is hard to imagine this conception stretching beyond the criminal law, for example people are not punished by failing to make wills.Hart's positivism is different from that of Austin's. A legal system is not just about obedienceof a rule. In the first place the rule must be accepted by the community. The rule becomes “a criticalreflexive attitude to certain patterns of behaviour as a common standard”
7
.Therefore the legalsystem can be conceptualised as a set of rules which have been accepted and recognised within thecommunity. For Hart, the legal system is comprised of primary and secondary rules. The primaryrules are those which prohibit certain behaviours, for example murder, violence, theft and affect theway all citizens behave
8
. These rules in isolation could lead to uncertainty (due to the lack of anauthoritative text), an inability to develop these laws and inefficiency (a lack of dispute resolutionmechanisms)
9
. In order to remedy these problems, a set of secondary rules should exist which aboutthe primary rules themselves. The problem of uncertainty is remedied by a rule of recognition
10 
whereby the community acknowledges that the rules are authoritative and binding. This is themaster rule which underpins the legal system and allows the community to know what rules countas law. Furthermore, the system can develop by empowering a body to introduce new rules (rules of change) and rules of adjudication allows a body to resolve disputes
.The virtue of positivist legal theory and in particular Hart's positivism is that each citizenknows with some degree of certainty what the law is with regard to a particular issue. The law iswhat the community recognise as binding namely statutes, legal principles and case law. The citizenis aware that the state is bound by these predetermined rules and they are able to know “how theauthority will use its coercive powers”
, as a result one can decide how they will behave and “planone's individual affairs”
.
5
 Ibid 
6J. Austin,
 Lectures on Jurisprudence or the Philosophy of Positive Law
, R Campbell (ed), Volume Two (London:John Murray, 1885) 5337HLA Hart,
The Concept of Law
, 2
nd
Edition, (Oxford: OUP, 1994) p.508
 Ibid,
p919
 Ibid 
, p92-9310One can see that Hart has developed his idea from the Hegel's Theory of Recognition – for example during mutualrecognition A and B recognise and understand their individual freedom but they also develop boundaries and limitsto their freedoms in order to establish what is “proper” and appropriate behaviour. See GWF Hegel,
The Phenomenology of Spirit 
, translated by AV Millar (Oxford: Clarendon Press, 1977)11HLA Hart, above n.7, p9512F Hayek,
The Road to Serfdom
(London: G Routledge & sons , 1944) p7213Ibid
 
3It follows from these virtues that the rule of law will be preserved. The rule of law ensuresthat individual freedom is protected. It has been described as an “indispensable institutionalmechanism”
. The rule of law ensures equal treatment before the law, ensuring fairness, freedomand certainty in the legal system. This accords with positivism because if law is about the objectiveapplication of rules to a factual scenario then the rule of law will, nearly always, be preserved.Although critics have suggested that because a rule that is validly passed counts as law no matter how unjust the rule is. Therefore, the rules under the Nazi regime must be valid but to reach such aconclusion seems wrong and problematic
.This must offend the rule of law. Liberal scholars admitoppression can exist under this theory but they argue that the rule of law is necessary and the besttool to avoid oppression. For the most part “law has the power to constrain, confine and regulate theexercise of social and political power”
.Whilst Hart's concept of the law purports to be certain and fair by preserving individualfreedom and the rule of law, it has three internal problems. Firstly, law and legal rules can beindeterminate and dispute can arise as to what the words actually mean. Indeterminacy does arise in practice. For example, in the landmark case of 
Ghaidan v Godin-Mendoza
the question waswhether a homosexual cohabiting couple could be included in the definition of a “family” for the purposes of the Rent Act 1977. In this situation, Hart proposes the judge decides the meaning of words within their discretion. A further problem is by conceiving the law as a discrete system of rules in that must be applied objectively by the judiciary, unfair or unjust results can arise. This isseen as an inevitable consequence of law being applied objectively which cannot be avoided.Situations will arise when no law exists to resolve a dispute. Where gaps in the law exist, Hart proposes judicial discretion be employed to create new laws. While the use of judicial discretion has been criticised, one can see the virtues in such an approach. It is impossible for a legislature to predict what disputes will arise. Gaps in the law and the use of judicial discretion allow the commonlaw to be flexible and develop solutions for new problems rather than applying outdated, ill-fittinglaws or principles. Furthermore, judge made law is open to greater scrutiny than any legislation andcan be easily modified by courts
. Before relying on judge made law any court will assess thereliability of the judgment as the skill and consistency of judges varies
.Moreover as Razhighlights, judge made law rarely has sweeping drastic consequences like legislation as judgesusually fill gaps in statutes. They are limited to articulating single rules and only the ratio decidendi
14A Altman,
Critical Legal Studies – A Liberal Critique
(Princeton: Princeton University Press, 1990) p1315R Dworkin,
 Law's Empire
(London: Fontana. 1986) p3516A Altman, above n14, p1317[2004] UKHL 3018J Raz,
The Authority of Law
, 2
nd
edition (Oxford: OUP, 2009) p195-619HLA Hart, above n7, p97

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