University of London Common Law Reasoning and Institutions The Community's Wellspring: Blackstone, Rawls, Dworkin, and the

Sources of Law Thomas A. Falcone, B.A. 2013

There can be no real argument about it: judges make law. The declaratory theory is more or less nonsense.

The declaratory theory of the law, which traces its origins to William Blackstone's landmark Commentaries on the Laws of England, continues to provoke critical discussion among legal scholars and others engaged in jurisprudence. Legal theorists widely consider the theory to be deficient and other approaches to the sources of law have become far more fashionable in the halls of legal academia. But to what extent is the dismissal of the declaratory theory warranted? This paper will examine this question. I will begin by offering an overview of Blackstone's articulation of the declaratory theory and then outlining some critiques of it. I will then proceed to argue that, if we envision our political community as being underpinned by certain perennial principles of justice as John Rawls suggests, then the nature of law is more accurately described in Blackstonian terms. I will conclude by briefly suggesting that the legal theory of Ronald Dworkin provides a more contemporary and perhaps more plausible way of advancing the notion that the law is more than the creation of judges.

The fundamental concern with regards to the declaratory theory for the purposes of this paper is whether or not judges make law. Is the law simply the creation of judges pronounced in judicial decisions, or is the law something deeper, or more metaphysical than this? Blackstone comes down firmly on the side of the latter proposition. His account of the role of the common law judge revolves around several propositions.1 Firstly, he claims that the authoritative nature of the common law is based on the fact that the common law itself is an ancient custom, a tradition passed on through the ages. Thus for Blackstone judges are the depositories of the laws; the living oracles who must decide in all cases of doubt.2 Note here that if judges are depositories of the law, then the law itself is something
1William S. Brewbaker III 's article in the Journal of Law and Religion was immensely helpful to me in understanding the core ideas of Blackstone's jurisprudence. See William S. Brewbaker III. Found Law, Made Law and Creation: Reconsidering
Blackstone's Declaratory Theory. Journal of Law and Religion. Vol. 22, No. 1 (2006/2007), pp. 255-286

2 William Blackstone. Commentaries on the Laws of England (University of Chicago Press: 1979) vol. 1, 11

external to them, as opposed to a creation that flows from them. Thus judges must decide "not according to [their] own private judgement but according to the known laws and customs of the land.3 Finally and importantly, Blackstone also notes that decisions rendered from the courts are not themselves the law rather, they are evidence of the law itself.

Adam Gearey and Wayne Morrison aptly summarize the Blackstonian relationship between the judge and the law as such: even though [a judge] may reach a decision on a legal problem never before addressed by a common law course, he does so not as an original author of new legal ideas, but as a representative of a collective wisdom greater than his own. He interprets and applies the law but does not create it, for the law has no individual offers. It is the product of the community grounded in its history.4 So the common law, according to Blackstonian declaratory theory, is a living embodiment of a historical tradition in which the law itself is always something more than judicial decisions and/or statues passed by legislators, but it is never something codified primordially. It is the collective wisdom from the community's wellspring as passed down through the ages judges simply provide us with samples of evidence of the law itself.

This kind of jurisprudence may seem unnecessarily obtuse or cryptic. It is worth quoting J. C. H. Wu at length here, as he gives a rather lyrical illustration of the nature of the common law which I think is congruent with that which the declaratory theory proposes:
The common law is full of fringes and penumbra, full of shades and nuances; this is what makes it so human, so attractive, and so natural. In the enchanted garden of the common law, there are many shady groves which cheer your heart and refresh your spirit at the same time [as] they lure you on to new vistas. It is not a closed garden, but one which is continuous with the wide fields, hills and rivers on one side, and leads to the streets and market places on the other. At first you feel all but lost in the labyrinthine ways and paths; you want to discover some design, but you find none. But daily saunderings in the garden familiarise you gradually with the genie of the place, the atmosphere, the ever-changing moods of the garden, with the inevitable result that you are more and more fascinated by it. [...] You do not find a general design, except perhaps by the design of nature or of a mysterious Providence. What you find is not logical consistency
3 Ibid., 69 4 A. Gearey and W. Morrison. Common Law Reasoning and Institutions Study Guide. (University of London: 2012), 21. Emphasis added.

arrived at once and for all, but an endless series of organic adaptations which must be renewed every day. 5

Judges do not make the law, according to Blackstonian declaratory theory. The law is rather something far deeper and more profound than this: it is the living embodiment of the political community's collective moral wisdom.

As I noted earlier, however, the declaratory theory and Blackstone's writings have largely fallen out of vogue amongst legal philosophers and academic lawyers. Having briefly sketched the declaratory theory of law, I will now discuss some objections that have been raised to this sort of understanding of the relationship between judges and the law.

One of the earlier objections to the declaratory theory of law was raised by Justice Oliver Wendell Holmes Jr. in Southern Pacific Company v. Jensen. Justice Holmes contends that the common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified.6 It is easy to see here how Justice Holmes' passage in his dissent is a rather direct assault on a Blackstonian jurisprudence of the common law. Since the declaratory posits that the law is something beyond the decisions of judges and that judges simply discover or declare what the law is as oppose to crafting it themselves, it is tempting to see the declaratory theory as elevating the source of the law to a metaphysical plane. Justice Holmes, however, sees the common law as the expression of an easily identifiable authority law is created by a sovereign, or rather an instrument of the state.

Critical legal theorists are also highly suspicious of the notion that judges have little discretion in their judgements because the law is somehow more than their own creation. David Kairys argues
5 J. C. H. Wu. Fountain of Justice. (New York: Sheer and Ward, 1995), 96-97 6 P. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting)

that there is no such thing as legal reasoning, in the sense of a logical, neutral method of discovering what the law is as if it exists beyond the decisions of the judiciary. He states that judicial decisions are actually based on a complex mixture of social, political, institutional, experiential and personal factors,7 and are simply legitimated, or justified, by reference to the idea that the judges are simply declaring what the law is. The law provides a wide and conflicting variety of such justifications from which courts pick and choose.8 The driving force behind critical legal theory's objections to the declaratory theory is that if judicial decisions are deconstructed within the social, political, economic, and cultural context they were delivered in, it becomes clear that law is generally made by judges in order to promote the interests of the ruling class and preserve the hegemonic socio-economic order. Given the wide-spread notion that the judiciary is slow to respond progressively to pressing societal changes, it is clear that this sort of critique may have considerable draw.

We have, then, two very different pictures of the source of the law. Are judges simply to paraphrase Blackstonian jurisprudence the 'repositories of the experience of the community over the ages,' who in their decisions draw from the community's collective moral wellspring to provide evidence of the existence of a grander body of the law? Or are judges proactively involved in the creation of the law a complicated set of rules and judgements that are the clear voice of a sovereign mostly interested in the preservation of the dominant power structure? I think that in order to better analyze this question it is important to have an understanding of the make-up of the political community in which the law operates itself.

It is necessary to understand the historical context in which contemporary Western democratic society have emerged. Since at least the Reformation, Western society has been marked by stark divergences in conceptions of the best way to lead a good life, in moral values, religious doctrines, and
7 David Kairys. The Politics of Law: A Progressive Critique. (New York: Basic Books, 1998). 8 Ibid.

in philosophical beliefs. Individuals in the West practice a stunningly diverse array of religions, have radically different lifestyles, and are able to consume or not consume from an ever increasing selection of ideas about how to live our lives. Indeed, the advent of advanced telecommunications technology has made developing and maintaining boutique lifestyles a simple task. That people who interact and co-operate in society disagree with each other about a plethora of fundamental questions of value is a fact that participants in Western civilization have known for a very long time. So because of this, Rawls stresses that there are requirements of a workable conception of political justice: such a conception must allow for a diversity of doctrines and the plurality of conflicting, indeed incommensurable, conceptions of the good affirmed by members of existing democratic societies.9

How, then, are we to configure the institutional regulations of our divergent life plans? I take Rawls as arguing that there is a deep well of political traditions and intuitions that we draw from when we try to formulate a public conception of justice. He writes that we collect such settled convictions as the belief in religious toleration and the rejection of slavery and try to organize the basic ideas and principles implicit in these convictions into a coherent conception of justice [...] We look, then, to our political culture itself, including its main institutions and the historical traditions of their interpretation, as the shared fund of implicitly recognized basic ideas and principles.10 Essentially, we can accept Rawls' justice as fairness as the mediating theory that underlines the structural institutions of society if we recognize the core beliefs and intuitions that are imbedded in the brick and mortar of Western civilization itself.

How does this relate to our discussion on the relationship between judges and the law? I mentioned earlier that an analysis of the source of the law is better positioned if placed within an
9 John Rawls. Justice as Fairness: Political not Metaphysical. Philosophy and Public Affairs. Vol. 14, No. 3 (Summer 1985). 225 10 Ibid., 228. Emphasis added.

understanding of the structure of the society in which the common law operates. Rawls' description of Western democracies as societies based on co-operation that construct their major social institutions including, I assume, the law from a shared wealth of values and convictions that have developed organically through that society's history is a compelling narrative about the structure of our society. But if we accept the idea that democratic societies are underpinned by certain timeless values fairness, equality, liberty, and other liberal principles that permeate the constitutions and public discourse of democracies then I think certain challenges arise for a jurisprudence that maintains that judges are the makers of the law who enjoy wide discretion when making difficult decisions in contentious cases. If we accept that the common law is one of the institutions constructed from the shared values and settled convictions that form a backdrop to the society in which it operates, then the law itself must by definition be more than the creation of judges because judges themselves are drawing from a collective fund of timeless principles that underpin the legitimacy of the decisions they render. Ultimately, a judge's discretion is powerfully limited by the fact that her decisions must be congruent with the law (as formed by precedent and statute), which in turn is itself an institution based in certain values. Judges, I think, do not make decisions from seemingly arbitrary case-specific facts and various political pressures it is far more accurate, given the structure of Western democratic society itself, to say that they discover what the right principles are of a given case.

Here it is useful to briefly outline Dworkin's philosophy of law in order to present a contemporary way of articulating the notion that judges are not lawmakers in the broad sense. Dworkin argues that law is a seamless web of principles, which supply a right answer to all problems and disputes that come before it. He suggests that while sometimes judges may not be able to employ precedent or turn to statute that is relevant to the case-at-hand, the underlying principles of law are inexhaustible. Dworkin claims that judges first look at the body of precedent, and from case law deduce which principles apply to the case they are called upon to render a decision on. Then they

consult their own sense of justice as to which apply, and also consider what the communitys view of justice dictates. Dworkin calls this law as integrity.

Dworkin describes this approach with reference to McLoughlin v O'Brian:11

The conventionalist holds [...] that if there is no law in cases like McLoughlin, and that a judge must therefore exercise a discretion to make new law, which he then applies retrospectively to the parties to the case. There is ample room in that account of the situation for the further stipulation that the judge should decide in a way that engages his own political or moral convictions as little as possible and gives as much deference as possible to institutions conventionally authorized to make law. Once it is made clear that the judge makes new law in these circumstances, as conventionalism insists, then it seems plausible that he should choose the rule he believes the actual legislature then in power would choose, or, failing that, the rule he believes best represents the will of the people as a whole. [...] Suppose, on the other hand, that he is guided by law as integrity, which does not limit law to what convention finds in past decisions but directs him to also regard as law what morality would suggest to be the best justification of these past decisions. The judge decides McLoughlin by employing his own moral convictions, which is just what the popular ideal abhors. Once he is satisfied that the law as he understands it for Mrs. McLoughlin, he will feel justified in deciding in her favor, whatever the present legislature thinks and whether or not popular morality agrees. 12

Judges, on Dworkin's account, draw from the community's wellspring in order to discover what the justice what the law demands in a difficult cases. If the structure of democratic society is itself based on a shared fund of socio-historical values and principles, then this is indeed a compelling jurisprudence. It is overreaching to claim the declaratory is non-sense, though a contemporary update through Dworkin to the notion that judges discover the right answer to cases as oppose to make the law is welcome.

11McLoughlin v OBrian [1983] 1 AC 410 12 Ronald Dworkin. Law's Empire. (Cambridge: Harvard University Press, 1986) 119-120

Bibliography

A. Gearey and W. Morrison. Common Law Reasoning and Institutions Study Guide. (University of London: 2012) David Kairys. The Politics of Law: A Progressive Critique. (New York: Basic Books, 1998) J. C. H. Wu. Fountain of Justice. (New York: Sheer and Ward, 1995) John Rawls. Justice as Fairness: Political not Metaphysical. Philosophy and Public Affairs. Vol. 14, No. 3 (Summer 1985) McLoughlin v OBrian [1983] 1 AC 410 P. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting) Ronald Dworkin. Law's Empire. (Cambridge: Harvard University Press, 1986) William Blackstone. Commentaries on the Laws of England (University of Chicago Press: 1979) vol. 1 William S. Brewbaker III. Found Law, Made Law and Creation: Reconsidering Blackstone's Declaratory Theory. Journal of Law and Religion. Vol. 22, No. 1 (2006/2007)