Theory of Adjudication

- The theory of adjudication looks into how judges arrive at a decision

- Ronald Dworkin’s theory of law is that the nature of legal argument lies in the best
moral interpretation of existing social practices. Thus, all judgments ought to rest
upon the reasoning that people are equal as human beings, irrespective of the
circumstances in which they are born.
Rules and non-rule standards:
- Rules are in fact the law, whereas non-rule standards (principles, maxims etc.) lie not
in legislature or the court, but in the realities within a society.
- Rules and principles are both standards, but that which differ in their nature.
- A rule either determines an issue, or provides nothing on the issue.
- A principle does not dictate an answer, but merely follows a direction; gives a
reason.
- All principles pertain to the domain of morality, which upholds
Dworkin’s belief that law is, and ought to remain, rooted in morality.

- In some instances, the complete adoption of the black letter law has resulted in
injustice. Thus, judges are allowed to ignore the rules that had been set and to apply
non-rule standards.
- R v Dudley & Stephen (passive): The judges simply abided by the express rules
of law in regards to murder, which resulted in the men’s conviction, without
taking into consideration the necessity brought about by the circumstances in
which the men found themselves in that is stranded in the middle of the ocean,
and fighting for survival.
- Riggs v Palmer (active): Elmer murdered his grandfather by poisoning him out
of fear that his grandfather might change his will because of a remarriage.
Although he was convicted and sentenced to imprisonment, the Statute of
Wills (New York) did not disinherit a murderer. However, the judges refused to
follow the express rules, and decided that Elmer should not be allowed to
profit from his own wrong, thus providing for a decision that proceeded on a
principle.

- A hard case is one that is difficult for a judge to decide because there is neither clear
law (or law at all) to apply to it, nor any precedent that covers the case.
- All rules produce hard cases which cannot be resolved by the logical application of the
rule itself.
- In such instances, the task of the judge is to provide a morally charged and
constructive interpretation.
- This is where the substance of a legal argument plays a significant role.
- Even in hard cases, there is always a right answer which judges should try to find and
give, but this is not supplied by the existing rules.
 - The judge can only arrive at such a “right” answer by applying the legal
principles which are implicit or underlying the law.
- A right answer is one which produces a better fit with the existing law and legal
practice.

- In order to find a right answer, a judge must evolve an all-embracing philosophy of

law, particularly in hard cases.
- Dworkin asserts that judges’ judicial decisions should:
- Fit with the institutional and constitutional history of the law (settled
law and past political decisions)
- Have judicial integrity, whereby it should promote justice and fairness
(morally sound), and be a result of the exercise of equality

- Judges must view the law holistically:

- Apply the law as if it were a seamless or continuous web
- Weigh formal rules against non-rule standards
- Weigh principles against each other

- However, judges must always try to uphold the rights of parties.

- Principles identify rights of individuals, thus in any given case, where a
right comes into conflict with any policy, the right must prevail.
- Mohammad Nizar Jamaluddin v Dato Dr Zambry Abdul Kadir: The
Constitution must be construed liberally, as in any case, the interests
of an affected party must be given significant consideration as
compared to mere legislation.
Activist or passive approach:
Judicial passivity encourages judges to exercise restraint upon their powers in deciding a
case.
- This approach upholds the doctrine of stare decisis, which stands by the need for
precedents in order to establish guides to future conduct, and applies not merely to
legal systems, but also to all rule or norm-creating bodies.
- A passive judge is one that merely interprets the law and does so within the
boundaries of precedents (lack of application of non-rule standards)
- E.g: A passive judge is more inclined to give a stricter interpretation and would
say that the Constitution should be interpreted to achieve the intention of the
original framers.

- However, the danger in a judge’s tendency to follow past precedents is that it may
lead to stereotyped procedures and weaken progress of the law.
- E.g: R v Dudley & Stephen
Judicial activism is a philosophy of judicial decision-making whereby judges allow their
personal views about public policy, among other factors, to guide their decisions.
 - It refers to judicial rulings that are purportedly based on considerations other than
that of existing law (non-rule standards).
- Activist judges are those who in discharging their functions exceed what the
Constitution provides, or what history defines, or what the contemporary society
expects of them.
- Departure from the doctrine of stare decisis
- An activist judge provides a dynamic interpretation of the law.
- E.g: An activist judge would say that the Constitution needs to be interpreted
dynamically because a Constitution is not made merely for the generation that
existed back then, but for the future generations.
Examples of judicial activism:
- Badan Peguam Malaysia v Kerajaan Malaysia: The Malaysian Bar questioned the
appointment of a UM law lecturer as a judge who only had 10 years of teaching law
as ‘experience’, and alleged that it was unconstitutional as against Article 123 of the
Federal Constitution. Dr Badariah Sahamid graduated with a first-class degree in Law
from UM, and held a Masters in Law from LSE. She completed her pupillage and was
admitted to the Bar in 1977. However, she never applied for nor obtained a practicing
certificate that would enable her to practice as an advocate and solicitor. Thus, the
issue was whether “advocates of the courts” in Article 123 requires a person to have
been practicing for 10 years preceding the appointment, and whether Dr Badariah was
qualified in law for the appointment.
- Held: The Federal Court expanded the term ‘profession’ as to include the ‘teaching
profession’ and held that her appointment was valid. The phrase ‘practicing law’ was
construed actively and in a broad sense, as the Federal Constitution should be
construed with less rigidity and more generosity than other statutes. The court also
put into consideration other factors affecting the validity of her appointment:
- Removing her and ruling her appointment as unconstitutional would deem her
appointment as a mistake, where they had initially identified her as a potential
candidate.
- The fact that she had resigned from UM to accept the appointment would
leave a bad impression on the judiciary.
- Prior to her appointment, other academicians such as Dr Visu Sinnadurai had
been appointed without any challenge.
- The court departed from the decision in All Malayan Estate Staff Union v
Rajasegaran & Ors: The period of time stipulated in the statute (Industrial
Relations Act) refers to the period in which the person concerned must have
been in practice.

- Teoh Eng Huat v Kadhi Pasir Mas: Where a minor had converted to Islam without the
consent of her parents, the issue was whether the conversion was valid as under the
Guardianship of Infants Act, minors are under the prerogative of their parents. In
deciding the case, Tun Salleh Abas sat on the case; he prolonged the case until the
child had attained the age of majority, at which point the court allowed her to decide
 for herself where she still wanted to convert into Islam. The decision was not merely
about a girl’s conversion into Islam, but was an all-encompassing decision as it took
into consideration the rights of all children to choose their religion.

- Brown v Board of Education: The United States Supreme Court declared state laws
establishing separate public schools for black and white students to be
unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896,
which allowed state-sponsored segregation as long as it applied to public education.

- Donoghue v Stevenson: Where a decomposed snail was found in the opaque bottle
from which the plaintiff drank from and fell ill, the HOL ruled that a manufacturer owes
a duty of care to consumers, as it was reasonably foreseeable that failure to ensure
the product’s safety would cause harm to consumers. The fact that the danger has
been introduced by an act of negligence and does not advertise itself, should not
release the negligent manufacturer from a duty.
- The decision overruled Mullen v AG Barr & Co Ltd, which despite the similar
circumstances (a dead mice was in their bottles of ginger beer and the victims
claimed to have become ill through drinking the tainted liquid), the court
rejected the claim for compensation as there was no contractual relationship
between the manufacturers and the consumers.
Dworkin’s Hercules:
- A superhuman judge who is generously endowed with superhuman skill, learning,
patience and acumen (intelligence).
- Hercules is expected to be able to construct a scheme of abstract and concrete
principles, providing a coherent jurisdiction for all common law precedents, statutory
provisions, and the constitution.
- His task is to construct the soundest theory of law, and should be able to justify his
political and legal theory with a set of principles.
- A sound theory of law must:
- Fit and justify the settled law
- Fit with past political decisions
- Be justifiable or morally sound

- Hercules’ judgment about what the law is depends on what he finds to be the best
explanatory and justificatory theory of the settled law.
- Dworkin illustrate Hercules’ judgment through the analogy of a chain novel:
- Each novelist writes his own chapter in the light of what has passed in the
earlier chapters and attempts to make it as best as it can be.
- A good novelist should try to make the chain novel look as though it is the work
of a single author.
- Despite differing opinions, his interpretation must flow through the text and
capture most of the text of the novel.
 - If he cannot find an interpretation which fits and is justifiable, he must
abandon it.
- He may have to accept interpretations he might have rejected in the beginning
and reconsider the views he might sought to adopt in his theory.

- In the determination of Hercules’ concept of justice, two things must be considered:

- Legal history, which must be given priority
- Actual political history of the judge’s community

- However, Dworkin does not allow Hercules to adopt individual or personal notions of
justice to override the political history of the community. Thus, his personal views of
justice must give way to the requirement of political history of the community.
- Wong Chiou Yong v Pendaftar Besar: It is the prevalent belief and culture in
Malaysia that changing a sex of one person from male to female or vice versa
is not acceptable. Therefore, Article 5 of the Federal Constitution should only
be interpreted in that light.
- Hence, a judge’s personal views of what may be ‘just’ in such a case
should not be adopted where political history of the Malaysian
community has provided a stance.
Judicial discretion:
- Hart asserts that in a hard case, judges have a wider discretion. Thus, judges do not
simply find and apply the law, they do, in fact, make it.
- The open texture of the law leaves a large area for judges to display creativity
through the use of principles, provided that they act with impartiality and
neutrality, while keeping in view the interests of all affected parties.
- This is necessary where there are no existing rules to cover the situation.

- Dworkin, in objecting Hart’s argument that judges make laws, presents two major
arguments:
- Judges are not elected and only representatives of the people make laws
- If judges make new laws and apply it retroactively, the losing party would be
unjustly punished for a duty created after the event has passed.

- Dworkin argues that judicial discretion exists only in two instances:

- A person has a discretion if his duty is defined by standards that reasonable
men can interpret
- A person has discretion when he has to give a final decision that is not
reviewable by any other higher authority

- Dworkin provides that due to the legal system being founded on principles, judges do
not really have a strong discretion. If existing rules fail to give a clear answer, judges
do not have a discretion unlimited by any legal standards.
 - A judge’s discretion is limited to doing what is compatible with legal principles,
legal values and relevant legal standards.
- Judges are subjected to a strong requirement of “articulate consistency”.
- Thus, although Dworkin promotes the application of non-rule standards, he highlights
the limitations that judges must observe in exercising their judicial discretion.
- Amongst these limitations, is the existence of the doctrine of stare decisis,
which forms a cornerstone of our system of jurisprudence (Co-operative
Central Bank v Feyen Development Sdn Bhd)
- The doctrine enables members of the public to organise their affairs in
accordance with the law and for legal advisors to advise their clients
with a fair level of accuracy about the state of law in order to avoid
wasteful and unnecessary litigation (Viro v R)

- Like law, a precedent, to Dworkin, has moral force (moral value) and is relevant
if it is based on fairness or a similar virtue, such as treating people like equals.

- This is reflected in Dworkin’s belief that law is a matter of interpretation.

- He provides for the idea of constructive interpretation which promotes a
creative interpretation of the law, and is a matter of imposing purpose on an
object or practice in order to make it the best that it can be.

- He states that to interpret a law is:

- To enquire into its purpose or point
- To place the law in its (morally) best light

- Judges must interpret the law in a time-frame that is continuous, by going

through the three stages of interpretation (past, present, future):
- Pre-interpretive stage
- Interpretive stage
- Post-interpretive stage

- As a result of the interpretation, a consensus would have emerged as to the

social practice that people want to conform to; the interpretation that best fits
with the realities within the society.