FACING JUDICIAL DISCRETION

Law and Philosophy Library

VOLUME 49

Managing Editors

FRANCISCO J. LAPORTA, Department of Law, Autonomous University of Madrid, Spain

ALEKSANDER PECZENIK, Department of Law, University of Lund, Sweden

FREDERICK SCHAUER, John F. Kennedy School of Government, Harvard University, Cambridge, Mass., U.S.A.

Former Managing Editors AULIS AARNIO, MICHAEL D. BAYLESt, CONRAD D. JOHNSONt,

ALANMABE

Editorial Advisory Board

AULIS AARNIO, Research Institute for Social Sciences, University ofTampere, Finland

ZENON BANKOWSKY, Centre for Criminology and the Social and Philosophical Study of Law, University of Edinburgh

PAOLO COMANDUCCI, University of Genua, Italy ERNESTO GARZ6N VALDES, Institutfiir Politikwissenschaft,

Johannes Gutenberg Universitiit Mainz JOHN KLEINIG, Department of Law, Police Science and Criminal

Justice Administration, John Jay College of Criminal Justice, City University of New York

NEIL MacCORMICK, European Parliament, Brussels, Belgium WOJCIECH SADURSKI, European University Institute,

Department of Law, Florence, Italy ROBERT S. SUMMERS, School of Law, Cornell University

CARL WELLMAN, Department of Philosophy, Washington University

The titles published in this series are listed at the end a/this volume.

FACING JUDICIAL DISCRETION

Legal Knowledge and Right Answers Revisited

by

MARISA IGLESIAS VILA Professor of Legal Theory,

Department of Legal, Moral and Political Philosophy, Pompeu Fabra University,

Barcelona, Spain

• , SPRINGER-SCIENCE+BUSINESS MEDIA, B.V.

A c.r.P. Catalogue record for this book is available from the Library of Congress.

ISBN 978-90-481-5637-5 ISBN 978-94-015-9684-8 (eBook) DOI 10.1007/978-94-015-9684-8

English translation of EI problema de la discreci6n judicial. Una aproximaci6n al conocimiento juridico, Centro de Estudios Politicos y Constitucionales, Madrid, 1999,

translated by S.C. Mendlewicz.

Printed an acid-free paper

AII Rights Reserved

© 2001 Springer Science+Business Media Dordrecht Originally published by Kluwer Academic Publishers in 2001

Softcover reprint ofthe hardcover Ist edition 2001 No part of the material protected by this copyright notice may be reproduced or

utilized in any form or by any means, electronic or mechanical, incIuding photocopying, recording or by any information storage and

retrieval system, without written permission from the copyright owner.

For Nuri Vila, the noblest dreamer

TABLE OF CONTENTS

ACKNOWLEDGEMENTS

INTRODUCTION

CHAPTER 1: THE CONCEPT OF ruDICIAL DISCRETION

1.1 Introduction

1.2 Uses of 'discretion'

1.2.1 Senses of judicial discretion

1.3 Strong discretion

1.3.1 The context of strong discretion

1.3.2 Discretion as choice

1.3.3 Open alternatives

Semantic problems

Legal gaps

Normative contradiction

1.3.4 The zone of reasonableness

1.3.5 The demand for justification

1.3.6 Having discretion and exercising discretion

1.4 Weak discretion

1.4.1 An approach to weak discretion

1.4.2 A further approach to weak discretion

CHAPTER 2: THE STRONG DISCRETION MODEL

2.1 Introduction

2.2 A first look at the strong discretion model

2.3 Simple and sophisticated positivism

2.4 Judicial discretion and hartian positivism

2.4.1 The law-communication thesis

2.4.2 Hartian semantics

Meaning as settled use: easy cases

xi

Xlll

3

4

8

8

9

12

14

21

23

24

26 29

32

32

34

37

39

40 43

43

45

46

viii TABLE OF CONTENTS

Particular and social contexts of u~e

Indexicality and social conventions

Rule-following

2.4.3 No right answer: hard cases

Hard cases and legal interpretation

Antirealism and semantic indeterminacy

2.5 Final remarks

CHAPTER 3: THE WEAK DISCRETION MODEL

3.1 Introduction

3.2 Legal theory and normative adjudication

3.3 Law as interpretation

3.3.1 The semantic sting

3.3.2 Constructive interpretation

Concept and conception

The interpretive concept

Conceptions of the concept

Stages of constructive interpretation

3.3.3 The chain novel

3.4 Law as integrity

3.4.1 Integrity as a legal virtue

3.5 Final remarks

CHAPTER 4: INTERPRETATION VERSUS INVENTION

47

50

56

66

69

70

74

77

78

81

81

85

88

88

92

93

96

98

100

103

4.1 Introduction 108

4.2 Notions of interpretation 109

4.3 Are we interpreting or inventing? 113

4.3.1 The controversy Dworkin - Fish 115

4.3.2 Internal objectivity 119

4.3.3 Constraints to interpretation: the structure ofa conceptual scheme 125

4.4 Quine's episternic holism 127

4.5 Davidson's episternic coherentism 130

4.6 Final remarks 136

TABLE OF CONTENTS

CHAPTER 5: COHERENCE IN LEGAL INTERPRETA nON

5.1 Introduction

5.2 Truth, assertability and coherence

5.2.1 Coherentism as an epistemic theory, and as a theory of truth

Constitutive coherence and epistemic coherence

Back to the point

5.3 The theory of truth as coherence

5.3.1 Coherence and complexity

Coherence in the justification of beliefs

From justification to truth-assertability

5.4 Coherence in legal interpretation

5.4.1 Interpretive adjudication of norms

5.4.2 Authority and coherence

5.4.3 Coherence and the normative'dimension oflaw

5.5 Right legal answers and strong discretion

5.5.1 Incommensurability

5.5.2 Tie between interpretations

CHAPTER 6: HARD CASES AND LEGAL DETERMINACY

6.1 Introduction

6.2 The sceptical challenge

6.3 Justifiying semantic indeterminacy

6.4 Rule-following and the internal relationship

6.5 Agreement, disagreement, and right answers

6.6 Final remarks

BIBLIOGRAPHY

INDEX

ix

138

139

142

142

145

147

148

148

153

160

160

162

166

170

171

174

178

181

186

191

199

204

206

221

ACKNOWLEDGEMENTS

This book began life as a doctoral thesis, submitted at the Universitat Pompeu Fabra,

Barcelona, in 1997, which I completed thanks to the financial support of the Generalitat

de Catalunya. It is the result of several years of study, reflection, and persistency with

ideas that only hesitantly assent to leave darkness.

Special thanks are due to all those who made its publication possible both in its

Spanish as well as in its English version, in particular, to the managing editors of

Centro de Estudios Politicos y Constitucionales and Kluwer Academic Publishers. I am

grateful to the translator, S. C. Mendlewicz, for her work and for the long hours of

detailed discussion. Her observations have helped me clarify a number of points.

Intellectual activity is not the product of mere individual effort. Philosophy benefits

markedly from hard questions, criticism and discussion. I have greatly benefited from

the intellectual atmosphere I was privileged to enjoy at the Department of Legal

Philosphy of the Universitat Pompeu Fabra. I wish to express my gratitude to its

director and my supervisor, Albert Calsamiglia, who provided not only the support,

which means so much, but constant guidance and invaluable criticism from the

beginning to the end. His striking ability to create a fruitful environment for

philosophical exchange afforded me a unique opportunity to meet and learn from

thinkers such as Ernesto Garz6n Valdes, Carlos Santiago Nino, and Eugenio Bulygin.

I am deeply indebted to Jose Juan Moreso, Ricardo Caracciolo, Cristina Redondo

and Maribel Narvaez for the many stimulating and fruitful discussions on the issues addressed in this book, and for reading and commenting upon large portions of earlier drafts. Their incisive criticism and fine observations have led to many improvements.

Many thanks must go to Jordi Ferrer, Josep Maria Vilajosana, Teresa Pascual, Jose Luis Perez Trivifio, Jorge Malem, Pablo Navarro, Daniel Mendonca, Roberto

Gargarella, and Victor Ferreres for their patience and encouragement. I have been the grateful recipient of their suggestions in developing the ideas in this book. Most importantly, I have had the pleasure of sharing with them my passion for philosophical

inquiry.

I wish to thank Neus Torbisco, and all my friends for their unfailing support. They

have been wise to remind me the other strands in my life during the difficult moments

in the writing of this book. And, of course, I shall not forget to mention Africa.

Finally, and most of all, my everlasting gratitude goes to my parents and sisters,

Cristina and Elisabeth, without whose affection, warmth and generosity this book

would never have seen the light of day.

INTRODUCTION

In response to ETA's 1997 kidnappings and murders thousands of Spaniards attended

mass demonstrations to express their contempt for violence as a means of political

pressure. The demand that public authorities prosecute and condemn those who directly

or indirectly support ETA and its terrorist attacks was one of the most prevalent slogans

in the marches. Indeed, the social response was aimed not only against the terrorist

group, but also against Herri Batasuna (HB), the political party that openly endorse

ETA's armed actions in the Basque Country.

From the legal point of view, it is interesting to examine what it is citizens are

requesting from the government in the above-mentioned case. How do these collective

claims translate into legal language? One may think it fit to answer that Spanish citizens

want violence to be met with the institutional punishment prescribed by the legal order.

Nonetheless, it could also be argued that citizens in fact demand that certain kinds of

behaviour be regulated by the law in their country. While from the latter viewpoint

citizens wish for the creation of new legal norms, from the former they are just calling

for the application of the law. What reasons may render us inclined to sympathise with

one of these two views rather than the other? Which one of these two options is most

appropriate?

At first sight, this may appear to be a simple question. Answering it requires no

more than consulting the normative texts and determining what is prescribed by the

Spanish law with regard to this point. If it is the case that support to terrorism falls into a delictive category, citizens just claim an effective application of the law. Otherwise,

they are demanding that a new criminal figure be created.

However, there is more to it than that. Let us inquire about what would make

support to terrorism a legally regulated action. The literal meaning of normative texts is

usually malleable. How would otherwise members of HB have eluded convictions of an

offence of conniving at terrorist acts by expressing approval of them, or co-operating with armed terrorist organisations? Precisely the legal qualification of the conduct of

HB's members has been widely debated in connection to the limits of free speech, and

the room for political action as a sign of democratic pluralism. Thus, the answer to

which alternative better describes citizens claims against the support of violence is not

obvious at all - it very much depends on the conception of law we choose to embrace;

xiv INTRODUCTION

but law is a dynamical social practice that involves argument and discussion, and in

which interaction is driven by some specific purpose. We know what law is when we

are able to account for this complex social practice.

This book is an attempt to address this issue from an epistemic point of view. I will

explore some ·of the assumptions that account for particular conclusions of certain legal

theories about which behaviours are legally regulated. My discussion will develop in the

context of legal adjudication. Over the last few decades, legal philosophy has paid much attention to the analysis of judicial reasoning. This has proven an interesting starting

point to explore questions of a wider scope such as what is law, how do we come to know it, and what are its limits. For this reason, investigating judicial discretion and

legal interpretation will ultimately enable us to identify some of the elements that a view

of law should incorporate to warrant its viability. The main question I will attempt to

answer to is how to ensure the existence of objectively right legal answers. With a view

to doing so, I will investigate some of the difficulties encountered by a theory of the

truth conditions of legal propositions that assumes, at least, partial legal determinacy. I

will suggest an answer along the lines of Dworkin's theory, the thesis of internal objectivity, as to how to justify the existence of right legal answers, and yet avoid falling

into semantic realism. Moreover, I will hint at reasons that prevent the determinacy of

law in all cases. The first chapter outlines the different meanings ascribed to the expression 'judicial

discretion' in the context of legal theory. The features of each one of these uses are described and particular attention is paid to weak and strong discretion. Each of these two uses of discretion yields a separate model about what is law and how it is identified.

In the second chapter, the 'strong discretion model', mainly endorsed by Hartian

positivism, is introduced. The distinguishing features of this model can be summarised in the four postulates: I) the thesis of the social sources of law; II) law as

communication; III) meaning as settled use; and IV) the partial indeterminacy of law.

The purpose of an analysis of these theses is to show the difficulties met by Hartian

positivism and its conventionalist semantics to overcome the sceptical challenge of rule­

following without falling into semantic realism. Additionally, I point to certain

deficiencies in the justification of the positivist claim that semantic disagreement

necessarily leads to legal indeterminacy.

The third chapter is devoted to an analysis of what I shall call 'the weak discretion

model', whose chief exponent is Ronald Dworkin. I develop three aspects of this theory

of law: I) the relationship between legal theory and normative adjudication; II) the interpretive view of law; and III) law as integrity or narrative coherence. The purpose of

INTRODUCTION xv

this chapter is to illuminate the epistemic assumptions of Dworkin's theory and to point

to the main objection that can be pressed against his model, namely how to justify

optimism about the possibility of eliminating the need for strong discretion in

adjudication.

The starting point of the fourth chapter is the idea that every theory supportive of

the existence of right legal answers ought to account for the distinction between

interpretation and invention. The ultimate goal of this chapter is to provide an answer as

to how to draw this distinction objectively and simultaneously avoid externalism or

semantic realism. To this end, I set forth the epistemic grounds of the interpretive theory

of law and evince the advantages of such an approach over Quine's holism and

Davidson's epistemic coherentism. This leads to the conclusion that the best way to

distinguish between invention and interpretation is by adopting a theory of truth as

assertability for legal statements in line with Putnam's internal realism.

The purpose of the fifth chapter is to advocate a theory of truth as assertability that

adopts coherence as the criterion to determine what it is we are entitled to assert. I

consider coherence as a property and as a relationship. Moreover, as far as coherence as

a relationship is concerned, I distinguish between vertical and horizontal coherence. My

claim here is that for a coherentist theory to avoid both foundationalism and a too strict

form of holism it should take into account vertical and horizontal coherence, as

suggested by the idea of reflective equilibrium. I argue that coherence within a complex

interpretive scheme can warrant legal determinacy, albeit only partially. Thus, although

judges always require a weak form of discretion when they adjudicate norms, there is

evidence to support the need for strong discretion in the resolution of certain cases.

Finally, Chapter 6 relates the postulates of Hartian positivism to those of Dworkin's

theory, and shows their differences and similarities. I favour Dworkin's view on the

grounds of its epistemic accessibility and its higher explanatory output. I specifically

stress that Dworkin's position permits a viable strategy to overcome the problem of rule­

following, and distinguish interpretation from invention. This leads to the conclusion

that legal indeterminacy does not necessarily follow from semantic disagreement.