IS A GENERAL THEORY OF ADJUDICATION POSSIBLE? THE EXAMPLE OF THE PRINCIPLE/POLICY DISTINCTION
| Author | Max Weaver |
| Date | 01 November 1985 |
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00866.x |
| Published date | 01 November 1985 |
THE
MODERN
LAW
REVIEW
Volume
48
NOVEMBER
1985
No.
6
IS A GENERAL THEORY
OF
ADJUDICATION
POSSIBLE?
THE EXAMPLE
OF
THE PRINCIPLEPOLICY
DISTINCTION
I
-
INTRODUCTION
AND
METHOD
MOST
attempts to explain judicial discretion in law-making fall into
one of four broad categories.’ First,
unitary theories,
in which one
fundamental pattern is said to describe every instance. For example,
a theorist might believe that judges always decide cases
so
as to
produce the outcome or consequences which they personally
prefer.2 Secondly,
dual theories,
in which two patterns are elucidated
and each instance of the exercise of judicial discretion is said to fit
one or the other. Such theories are much more sophisticated than
unitary theories and often have a time and/or court dimension.
Thirdly,
triple theories,
which are similar to dual theories except
that three patterns, rather than two, are identified. The extra
pattern may provide further sophistication. Fourthly,
composite
theories,
in which the differences which are noted and
separated
in
dual and triple theories are noted and
combined
in one account
which is too omnibus to be described as a pattern. Such theories
may be sophisticated but may not fit the facts.
Except in idealistic or normative theories which identify
patterns not as what goes on but as what ought to
go
the
patterns of unitary theories are attempts at accurate general
description. Similarly; the patterns of dual or triple theories may
be attempts to describe. Alternatively, they may be models or ideal
Professor
Ogus
has commented that, “To generalize on patterns of judicial behaviour
is inherently dangerous”; see “Quantitative Rules and Judicial Decision Making” in
Burrows and Veljanovski (eds.),
The Economic Approach
to
Law
(1981), p.216.
Ogus
cites Lord Devlin in support; see “Judges, Government and Politics” (1978) 41 M.L.R.
501, 506-7. See also Robertson, “Judicial Ideology in the House of Lords:
A
Jurimetric
Analysis” (1982)
Brifirh Journal
of
Polifical Science
1,
“If
judges are taken as ideologically
homogeneous, we can learn nothing in detail about how they operate.”
Outcome preference must be refined. A judge might prefer an outcome in a
particular case
or
he might opt for the general outcome of a rule which might produce an
unpreferred outcomd in the particular case. He might be an act-utilitarian or a rule-
utilitarian.
It may be that Dworkin’s theory of adjudication is best regarded in this way; see
Taking Righfs Seriously
(1978).
613
614
THE MODERN LAW REVIEW
[Vol.
48
types which are neither accurate descriptions nor normative ideals
but analytical or heuristic devices.
A
pattern is identified in its
purest form and then compared with the data. Particular cases will
thus be seen to be similar to the model in some respects and
different in
other^.^
If each model corresponds to a basic value of
the legal or political system, such as certainty, flexibility, consensus
or procedural due process, this noting ,of similarities and differences
can illuminate the judicial process very effectively. It is rather as if
one had just been told that a suit is a matching ensemble of jacket
and trousers or skirt worn by respectable people. Suddenly one
sees suits where previously there had just been clothes. More
significantly one notices sober and bright suits, the absence of suits
or the incidence of contrasting waistcoats and begins to ponder
their significance. Provided analytical models are recognised as
such, and not confused with accurate general description or
normative ideals, they provide an analytical method, useful in the
study of the process of adjudication, but capable of application to
the relatively neglected fields of advocacy, counselling, negotiation,
client relations,
etc.
Composite theories must be handled with caution. They are not
models or ideal types but “average types.” Max Weber explains
the danger thus:
“It is important
to
be clear that in sociology ‘averages’ and
therefore ‘average types’ can only be formulated with any
degree of clarity where it is simply a matter of differences of
degree amongst qualitatively similar kinds of meaningful
behaviour. Examples of this do occur. In most cases, however,
the historically or sociologically relevant action is influenced by
a variety of
qualitatively
different motives which cannot be
averaged in any legitimate sen~e.”~
This is an inherent problem with averages. For example, half the
judges may read
Hansard
regularly and the others not at all. The
average
Hansard
readership
per
judge would be
50
per cent. This
suggests a picture of
a
judiciary each member of which reads
Hansard,
but some more keenly than others, whereas, in our
example at least, the judiciary is divided into the qualitatively
distinct groups of avid readers and adamant non-readers.
This article illustrates these methodological considerations by
examining the recent use of the principle/policy distinction in the
House of Lords. This has been of particular interest in the law of
See Runciman (ed.),
Weber, Selections in Translation
(1978),
pp.23-25 and
Wittgenstein,
Philosophical Investigations
(2nd ed.,
1963,
ed. Anscornbe),
I,
para.
130,
“Our clear and simple language-games are not preparatory studies for a future
regularization
of
language
-
as it were first approximations, ignoring friction and air
resistance. The language-games are rather set up as
objects
of
comparison
which are
meant to throw light on the facts of our language by way not only
of
similarities, but also
of
dissimilarities.”
LOC.
cit.
p.24.
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