1

Table of Cases.

Mc Farlane v Tayside Healthboard [2000] 2 A.C. 59

Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.[1964] a.c. 465.

Henderson v. Merrett Syndicates Ltd [1995] 2 A.C.

McLoughlin v O’Brian [1983] 1 A.C. 410

 2

Introduction.

In a discussion of Denning MR’s reference to policy in the Spartan case, Stephen

Guest was of the opinion that:

It was not that Denning managed to write a theory of law. He was

not really a philosopher; not at all that way inclined. Nor is it the way
of most judges who could conceivably be characterized as having
philosophical pretensions…Rather, it was that Denning talked
lucidly about law in a way that told all the particular set of moral
values he thought it important to uphold in his role as judge. He
explicitly declared that he thought that law in the end served
justice.1 (Emphasis added)

Much jurisprudential ink has been spilt in the debate of whether there is such a
thing as easy cases, in analyzing Lord Denning’s opinion; I shall avoid this
philosophical black hole and strive to offer a critical evaluation of legal positivism,
Dworkin’s anti Positivism and Realism as regards what judges should do in ‘hard
cases such as Spartan Steele’.2

1 Stephen Guest, JUDGING AND JUSTICE: THE SIR FRANK KITTO LECTURE, (2005) 2
UNELJ.< http://tlc.une.edu.au/lawjournal/pdf/UNELJ_2-1_Guest.pdf > accessed 26 Dec 2008 .

2 Dworkin.R, Taking Rights Seriously, Duckworth publishers, 1977, p 84

 3

Legal Positivism.

One of the main tenets of legal positivism is its insistence on the conceptual
separation between the law as it is and the law as it should be. ‘In other words,
the distinction between the law as it is and the law as it ought to be entails a
parallel distinction between the activities of applying the law and creating it.’ 3
Hard positivist insist that all criteria of legality must be its ‘social sources’ but soft
positivists maintain that judges may employ moral reasoning by saying that ‘ the
rule of recognition may incorporate as criteria of legal validity conformity with
moral principals or substantive values.’4

Soft Positivism.

Prof Hart distinguishes between the core and penumbra of concept–words in his
famous passage on a legal rule forbidding one to take a vehicle into a park.5 He
outlines the open texture of law that holds that language is indeterminate and
standards such as fairness can be widely interpreted and precedent widened or
reduced. He accepts that there are ‘hard cases’ where the law ‘runs out’ and
judges make law since in arriving at decisions, judges have a fairly wide
discretion by virtue of the rule of recognition:

if there is some ‘acid test’ by which judges are to able to decide

what are the valid legal rules, then where there is no applicable
legal rule or the rule or rules are uncertain or ambiguous, the judge

3 Marmor A, Interpretation and Legal Theory, Clarendon Press, Oxford. 1992 p 124

4 Hart H.L.A., The concept of Law,2nd Ed, by P.A Bulloch and J.Raz (Oxford Clarendon Press)
1994. 250 .

5 Hart, H.L.A (1958), Positivism and the Separation of Law and Morals’, in Hart (1983: 49-87).
First pub. In 71 Harvard Law Review (1958) p63
 4

must have a strong discretion to ‘fill in the gaps’ in such ‘hard

cases.’6

Lord Denning is thus guided by various sources but ultimately bases his decision
on subjective conceptions of fairness and justice. Decision’s based on fair, just
and reasonable that incorporates morality are accommodated within RoR.

Hart admits that although the union of primary and secondary sources is at the
centre of a legal system, it is not the whole and “as we move away from the
center we shall have to accommodate…elements of a different character.”7
Sometimes there is no source (rule or precedent) to guide the judge and he must
use strong discretion and legislate. However, when a judge applies the concept
of ‘fair just and reasonable’ he is not legislating. Judges are not elected; they
should thus use their discretion sparingly.

b) Hard Positivism.

Raz only accepts the ‘social thesis’ of Law and takes issue with Hart’s ‘internal
point of view’, that officials recognize a law that is valid and obey it, for Raz that is
a committed statement. He claims that we have a detached legal system where a
judge can say that Euthanasia is illegal while believing that it’s moral. For Hard
positivists, law is unconnected to morality and when a judge applies the concept
of ‘fair, just and reasonable’ he is legislating.

Raz declares that law is not based on rules and principles or moral
considerations rather, on social facts. He agrees that the law does run out and
when it does judges apply strong discretion to cases where morality is pertinent.
For example in McFarlane v Tayside Healthboard8 Lord Steyn (who reflected
Dworkin), held that ‘considerations of distributive justice indicated that the law did

6 Wacks Raymond, Understanding Jurisprudence, An introduction into legal theory, Oxford

University Press, 2005.83.

7 H.L.A Hart, The Concept of Law, (1961) Oxford University Press, p 96

8 [2000] 2 A.C. 59
 5

not permit the parents of a healthy but unwanted child to claim the cost of its
upbringing from a health authority’.9 Lord Millet held that the law regarded the
birth of a healthy, normal baby as a blessing and not as a detriment, the
advantages and disadvantages of parenthood were inextricably bound together
and the benefits should be regarded as outweighing any loss;10 accordingly, the
parents were not entitled to recover the costs of caring for and bringing up their
child. Raz argues that the judgment of McFarlane would have been morally
offensive if existing precedent were applied, (the extended Hedley Byrne
principle) from Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd.11as explained in
Henderson v. Merrett Syndicates Ltd12 that’s the ‘assumption of responsibility by
the doctor who gave the negligent advice.’13 This therefore according to Raz
showed strong judicial discretion overturning a fifteen year precedent (three
judges based their opinion on ‘distributive justice’) and all five spoke of morality
yet denied that it was a public policy decision.

9 Ibid p 76

10 Ibid p 114

11 [1964] a.c. 465.

12 [1995] 2 A.C. 145

13 (n5) p 78
 6

Dworkin

Prof. Dworkin occupies a unique place in the Jurisprudence continuum; He is

neither a positivist nor a naturalist nor a realist. He can best be described as anti-
positivist, though he shares the belief that legal rights derive from legal principals
and not from morality but at the same time shares the rival thesis that morals are
important but only those that are valid points of law. He is therefore in-between
naturalism and positivism. He disputes Hart’s RoR and the argument that judges
have strong discretion in hard cases.

Dworkin holds that the law is made of rules and principles, the law never runs
out, there is always an answer waiting to be found and ‘Hercules’ can find it by
reference to principal hence there is no need for judges to be given strong
discretion, they need only apply principal. Dworkin explains that policy is that kind
of standard that sets out a goal to be reached, generally an improvement in some
economic, political or social feature of the community.’14

Principle on the other hand, ‘is a standard to be observed, not because it will
advance or secure an economic, political or social situation ... but because it is a
requirement of justice or fairness or some other dimension of morality.’15

Policy may be relevant when choosing which principle to apply and Lord Denning
may have been doing this. Dworkin’s Law as integrity asks judges to suppose as
far as this is possible, ‘that the law is structured by a coherent set of principals
about justice and fairness and procedural due process, and asks them to enforce
these in the fresh cases that come before them.’16

14 Dworkin.R, Taking Rights Seriously, Duckworth publishers, 1977, p 22

15 Ibid p 22

16 Dworkin R. Law’s Empire, Hart Publishing 1986 p 243

 7

In McLoughlin v O’Brian17 ‘policy’ grounds were given as the reasoning behind

the judgment. Although precedent had established liability for emotional injury,
the Court of Appeal said that recognising a larger area of liability would have a
variety of adverse consequences for the community;

‘It would encourage many more lawsuits for emotional injury, this
would exacerbate the problem of congestion of the courts. It would
open new opportunities for fraudulent claims by people who had not
really suffered serious emotional damage...increase the cost of
liability insurance, making it more expensive to drive...’18

The House of Lords reversed the decision and ordered a new trial, several of the
Lords agreed that in some circumstances, policy grounds would be sufficient to
distinguish a line of precedents but they did not say when good policy arguments
might limit recovery for emotional injury. Two of their Lordships however said it
would be wrong for courts to deny recovery to an otherwise meritorious plaintiff
for ‘policy ‘reasons. “The precedents should be regarded as distinguishable”,
they said, “only if the moral principle assumed in the earlier cases for some
reason did not apply to the plaintiff in the same way.”19 The argument between
their Lordships, as Dworkin rightly observed, ‘revealed an important difference of
opinion about the proper role of considerations of policy in deciding what result
parties to a lawsuit are entitled to have.’ 20 He goes on to state that judges who
adjudicated McLoughlin disagreed about the force and character of precedence
as a source of law ‘but this disagreement was about what the law was not what
should be done in the absence of law.’21

Dworkin’s theory of Law as Integrity would ask a judge such as Lord Denning to
think of himself as an author in the chain of common law:

17 [1983] 1 A.C. 410

18 (n 11) p 27

19 Ibid, p 28

20 Ibid p 29

21 Ibid p 39
 8

He knows that other Judges have decided cases that, although not
exactly like his case, deal with related problems; he must think of
their decisions as part of a long story he must interpret and then
continue, according to his own judgment of how good it can be.22

Dworkin maintains that ‘judges must make their common law decisions on
grounds of principal not policy…’23 He notes that although Lord Denning
described his opinion as policy, he did not mean to distinguish an argument of
principle from an argument of policy in a technical way as he (Dworkin) had but
nevertheless he proposed the thesis that ‘judicial decisions in civil cases even in
hard cases like Spartan Steel, characteristically are and generated by principle
and not policy.’24

22 Ibid p 239

23Ibid p 244

24 Dworkin.R, Taking Rights Seriously, Duckworth publishers, 1977, p 84

 9

Realism

Realists claim that law is essentially a matter of social convention; law is ipso
facto, what a community of lawyers and judges thinks it is. They embrace the
descriptive thesis about adjudication: in deciding cases, judges react primarily to
the facts of the case, rather than to applicable legal rules and reasons.25 A realist
would thus argue that in the Spartan Steel case, it was the specific facts that led
Denning MR to formulate the outcome, and then give policy justification. For
realists, there is no law or Torts, per se; rather numerous laws of torts specific to
differing situation types and all that courts do is enforce the prevailing,
unconditioned norms as they would apply to the facts before them.26

Karl Llewellyn is perhaps the most relevant Realist for the purpose of this paper;
he regards law as an engine ‘having purpose, not values in itself.’27 His
‘functionalism’ theory states that there are ‘six law jobs’ and the most important is
the disposition of trouble cases.

‘”Within the law,” I say, therefore, “rules guide, but they do not control decision,
There is no precedent the judge may not at his need either file down to razor
thinness or expand into a bludgeon.”’28 Contrary to Dworkin, he refutes that there
is ‘one right answer’ to every legal question.29He shrewdly observes that if law
was no more than the application of rules to fact situations, then there would be

25 Leiter Brian, Review: Positivism, Formalism, Realism, Columbia Law Review, Vol 99, No. 4
(May 1999), 1148< http://www.jstor.org/stable/1123484?seq=11> accessed on 23 December
2008.

26 Ibid 1149.

27 ‘A Realistic Jurisprudence- The next Step’ (1930) Columbia Law Review 431

28 Karl Llewellyn The Bramble Bush, New York , Oceana Publications, 1959 p 180
 10

little mystery and even less need for trained lawyers.30 A realist would respond to
Denning’s opinion by saying that the result of a case should be not be made by
application of rules, principles or concepts to the facts but to whether its
something which can be hoped or thought to look reasonable by any thinking
man. Fact skeptics such as Jerome Frank would argue that judges interpret and
evaluate the facts of a case according to the results they want to achieve.

Cross roads.

Judicial discretion is viewed by Hart as a highly desirable means of achieving

flexibility and rationality in the law31

29 Karl Llewellyn, The Common Law Tradition: Deciding Appeals (Boston, Mass: Little, Brown &
Co., 1960) p 227

30 Ward I. ,An Introduction to Critical Legal Theory, Routledge, 1998 p142

31 Waluchow W. J Strong Discretion, the philosophical Quarterly Vol. 33 No. 133, p 1 <
http://www.jstor.org/stable/2219160?&Search=yes&term=discretion&term=strong&term=Hart
%2C&term=H.L.A&list=hide&searchUri=%2Faction%2FdoBasicSearch%3FQuery%3DH.L.A
%2BHart%252C%2Bstrong%2Bdiscretion%26gw%3Djtx%26prq%3DH.L.A%2BHart%252C
%2Bthe%2Bconcept%2Bof%2BLaw%26Search%3DSearch%26hp%3D25%26wc
%3Don&item=2&ttl=714&returnArticleService=showArticle> accessed on 5 January 2009.
 11

Arguments of policy justify a political decision by showing that the decision

advances or protects some collective goal of the community.32A good example of
this would be the Court of Appeal decision in McLoughlin explained herein.
Arguments of principle on the other hand, justify a political decision by showing
that the decision respects or secures some individual or group right.33An example
of this would be Lord Steyn’s opinion aforementioned in McFarlane. Dworkin
disagrees with the notion of strong discretion and would rather a judge in a hard
case such as Spartan Steele base his opinion on principal and not policy.

Conclusion.

In conclusion it is clear that the three schools of thought hold very different views
about what judges should do in hard cases, soft positivists would rather a judge

Hard positivists hold that if decision is based on morality then it is an example of

strong discretion.

Dworkin’s theory of adjudication includes the claim that the right answer in a hard
case is that answer which is provided by the scheme of principals and policies
which offer the best explanation and moral justification of the settled law.

For realists, a judge refers more to the facts of the case than to legal rules or
precedence and comes up with a decision to which he then attaches a principal.

32 Dworkin.R, Taking Rights Seriously, Duckworth publishers, 1977, p 82

33 Ibid
 12

Bibliography.

Primary Texts.

• Dworkin R., Law’s Empire, Hart Publishing, Oxford, 1986.

• Dworkin R, Taking Rights Seriously, Duckworth publishers, London 1977.
• Hart, H.L.A (1958), Positivism and the Separation of Law and Morals’, in
Hart (1983: 49-87). First pub. In 71 Harvard Law Review (1958).
• H.L.A Hart, The Concept of Law, Oxford University Press, Oxford,1961
• Hart H.L.A., The concept of Law, 2nd Edition, by P.A Bulloch and J.Raz
(Oxford Clarendon Press) 1994.
• Karl Llewellyn, The Bramble Bush, New York , Oceana Publications, 1959.
• Karl Llewellyn, The Common Law Tradition: Deciding Appeals (Boston,
Mass: Little, Brown & Co., 1960.)
• Marmor A, Interpretation and Legal Theory, Clarendon Press, Oxford.
1992.
• Wacks Raymond, Understanding Jurisprudence, An introduction into legal
theory, Oxford University Press, 2005.
• Ward I. An Introduction to Critical Legal Theory, Routledge, 1998.

Articles.

• A Realistic Jurisprudence- The next Step’ (1930) Columbia Law Review

431.
 13

• Leiter Brian, Review: Positivism, Formalism, Realism, Columbia Law

Review, Vol 99, No. 4 (May 1999), <http://www.jstor.org/stable/1123484?
seq=11> accessed on 23 December 2008.
• Nino Carlos, Dworkin and Legal Positivism, Mind, New Series, Vol 89, No.
356 (Oct., 1980), Oxford University press.
• Stephen Guest, JUDGING AND JUSTICE: THE SIR FRANK KITTO
LECTURE,(2005)2UNELJ.< http://tlc.une.edu.au/lawjournal/pdf/UNELJ_2-
1_Guest.pdf > accessed 26 Dec 2008.
• Waluchow W. J Strong Discretion, the philosophical Quarterly Vol. 33 No.
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&Search=yes&term=discretion&term=strong&term=Hart
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%3Djtx%26prq%3DH.L.A%2BHart%252C%2Bthe%2Bconcept%2Bof
%2BLaw%26Search%3DSearch%26hp%3D25%26wc
%3Don&item=2&ttl=714&returnArticleService=showArticle> accessed on
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