I wrote this article in June 2019 as the final essay for the course "Legal Reasoning and Research".
Introduction
In common law systems, Judges are bound to precedents when deciding cases. This is known as ‘stare decisis’. When clearly binding precedent is absent, the case is hard to decide. Legal philosophers developed theories setting forth their observation and understanding of how judges decide when facing such a situation. In this essay, their theory will be discussed and applied to a famous hard case – McLoughlin v. O’brian.
Dworkin’s Theory
In Dworkin’s criticism against H.L.A. Hart’s positivism, he raised his point that ‘Principles, policies, and other sorts of standards’ is what judges depend on when deciding hard cases, as Dworkin concludes.[1] Dworkin took examples of Riggs v. Palmer[2] and Henningsen v. Bloomfield Motors, Inc.[3] In both cases, the court recognized and admitted the existence (or absence) of rules, but made decisions depending on principles.
The role of legal principles is significant in Dworkin’s theories. Dworkin categorized three models of community – a non-associative community model, the ‘rulebook’ model, and the principle model.[4] Dworkin use ‘shared understanding’ to tell the difference among them. People in his most ideal community, the community of principle model, accept that ‘they are governed by common principles, not just by rules hammered out in political compromise’.[5]
According to Dworkin’s principle thesis, judges do not exercise discretion as positivism sees when facing such cases (hard cases without clear precedent).[6] Instead, judges should argue the principle behind the cases (as Hercules, the most ideal judge Dworkin hypothesized, would do).[7] Decisions and rules may be incidental, but the principle is coherent. They reflect the community’s common understanding. Therefore, the principles are able to cover a wide range of cases like a ‘seamless web’.[8] If principles are binding law, there would be no discretion and no multi-solution in court judging. I think this is the theoretical basis of Dworkin’s hypothesis of Hercules. The courts are now bound to a strict purpose, that is to carry out the principles to every decision of cases. In all cases, the one true answer exists, waiting for a fine judge to discover.
With his belief in principles, Dworkin also expressed his disagreement with positivism and realism by establishing his interpretive concepts, the theory of ‘constructive interpretation’. Constructive interpretation pointed out that the judges do not try to discover the author’s motives or intentions.[9] As the intentions of legislators are not necessarily in unity, such work is impractical. Instead, the judges interpret the law according to the principles and experiences in judicial practices. This is in accordance with Dworkin’s general idea of principle thesis.
MacCormick’s Theory
Deductive Reasoning
The first thing to talk about MacCormick is his deductive reasoning. I would compare it to the syllogism. MacCormick took Daniels and Daniels v. R. White and Sons and Tarbard[10] as an example and showed how deductive reasoning works.[11] Then, he gave a formalized framework to make it clearer: “(A) In any case, if p then q. (B) In the instant case p. (C) ∴, in the instant case, q.”[12]
If we compare to a typical syllogistic argument, we may call sentence (A) a ‘major premise’, sentence (B) a ‘minor premise’ and sentence (C) a conclusion. The most important part of the syllogistic argument is the authenticity of (A) and (B). If the validity of these two is jeopardized, the whole argument collapses. So, if it’s hard cases here to discuss, the (A), I’d like to generalize as rules established as statutes and precedents, is vague or questionable. Therefore, deductive reasoning may do no good under this circumstance. Actually, the usage of deductive reasoning is very common in civil law, which mostly consists of written rules and where interpreting rules are more stylized.
MacCormick realized this situation. He also put forward three main categories of problems of judicial reasoning –
problems of ‘interpretation’, which version of interpretation of rules should be chosen;[13]
problems of ‘relevancy’, the relevancy between rules and issues, [14]
and problems of ‘classification’, deciding which criterion of the rule’s concept to which the fact belongs.[15]
Second-Order Justification
MacCormick put great value in reasoning. Especially the logic relation within. But as David Hume would doubt the rational reasoning in practical affairs, MacCormick made an improvement with ‘second-order justification’.
The first essence of second-order justification is consequentialism.
Consequentialism, suggests that when there are several choices to choose, the judge should compare the consequence of choosing each one of them and made the choice most acceptable. Consequentialism reflects the spirit of utilitarianism. MacCormick believed that consequentialism has been widely adopted in the common law system. He cited plenty of example cases in Anglo-American law decisions, to support his view.
The second essence to be mentioned is coherence and consistency. Coherence means the combined purpose shown by various statements. Consistency requires the logical harmony between statements, which adds validity to the judgement.[16]
It seems to me that MacCormick’s argument of coherence and consistency has some common ground with Dworkin’s principle thesis. But MacCormick sticks more to the rules then principles. He took the view that Dworkin ‘exaggerated’ the difference between applicable rules and invalid rules. Rules can ‘contribute to a decision on facts to which it is not directly applicable’ by analogy.[17] In MacCormick’s view, deductive reasoning is still the core and foundation of legal justification. Second-order justification is a supplement and improvement of deductive reasoning.
Case Outlined
The case to be discussed here, McLoughlin v. O’Brian[18], is an English tort law case. It’s about a car accident that took place in 1973. The accident involved the plaintiff’s husband and three children. The plaintiff was home when she learned of the accident two hours after its occurrence. When she arrived at the hospital, realizing the severe injury of her husband and two kids, and the death of her youngest daughter, she suffered serious nervous shock, which resulted in psychiatric illness as she alleged. Then she brought suit for damages.
There have established plenty of precedents allowing victims of psychiatric injury to recover damages, however, when and only when the victim was on the scene.
The trial court ruled for the defendant. It held that Mrs. McLoughlin’s injury was not reasonably foreseeable. In tort law, the injury needs to be reasonably foreseeable, or there is no negligence. Therefore, the defendant is not liable. Plaintiff appealed.
The court of appeal dismissed the plaintiff’s appeal. But it held that the injury was foreseeable. The reason for its decision is the consideration of policy. If the law awards compensation for such a wide range of damages, there will be too many cases, including fraudulent ones, drowning the courts. Plaintiff appealed.
When the case came to the House of Lords, it invoked even more conflicts of views. This part is the main part that will be discussed below.
In House of Lords, Lord Wilberforce, Lord Edmund-Davies, Lord Russell of Killowen, Lord Scarman and Lord Bridge of Harwich gave the speeches. They all allowed plaintiff’s appeal but showed diverse perspectives.
Applying theories to case
Lord Wilberforce, pointed out the most disputed issue in front of the lord, which is ‘whether a person … who was not present at the scene of grievous injuries to her family but who comes upon those injuries at an interval of time and space, can recover damages for a nervous shock’. He first listed the rules that had been developed by common law. Especially by Bourhill v. Young[19] where the House clarified much of such case. Summarizing shortly below. First, ‘direct impact or fear of immediate personal injury for oneself’ is needed to award damages. Second, damages of nervous shock brought on by injury of a near relative may be recovered. Third, a wife comes to the scene shortly after the accident and sees her injured husband and suffers nervous shock can be awarded damages. Fourth, a rescuer at the scene of an accident may recover damages for his or her nervous shock.
Then, he summarized arguments brought before the lords by both sides. He discussed the policy arguments. To award damages for the appellant, the law must extend the liability in tort law. Wilberforce listed four reasons against such an extension. First, there may be fraudulent. Second, it may impose unfair liability to defendants. Third, cases like this would increase and lengthen litigation. Fourth, such an extension should be made by the legislature. However, he is against these arguments. He continued reasoning in the content of the policy and pointed out such limitations imposing on recovering “nervous shock” is improper. He emphasized the three elements that should be considered: ‘the class of persons whose claims should be recognized; the proximity of such persons to the accident; and the means by which the shock is caused’[20]. This took the reasoning back to discussing basic elements in tort law. He then cited several cases to justify the proximity in this case and held the damages recoverable.
From Wilberforce’s reasoning, we can see the judge first reviewed the case law, then weighed the legal requirements (of establishing negligence, like foreseeability, proximity and so on). He then gave his own consideration and made the outcome. He took a substantial amount of time talking about policy arguments. Three out of the four reasons he listed against the extension of liability are about the consequence. This reflects the essence of MacCormick’s consequentialism. The judge took the prospective impact that his decision may make into consideration. The same efforts were made in the court of appeal. MacCormick’s second-order justification is well reflected. Undoubtedly the practice of public policy, namely, consideration of common benefit, has been carried out within the legal system.
In his speech, Wilberforce described these points as ‘principles’. He referred to these points in his later reasoning as term ‘principle’. But I think by the word ‘principle’, he means ‘rules’, or at least guiding and generalized rules. The points he listed were derived from decisions in UK legal systems, and therefore he might tend to use as ratio decidendi. I can’t find a word more fit here then rules to reveal the nature of this part of his reasoning. The reason why he used ‘principle’ was that they are generalized and summative. They can’t guide the decision of the case solely by themselves, but through thorough reasoning and justification, they will do.
Principles, in Dworkin’s context, are the common belief with a community. It may sometimes even go beyond the system of law. It’s a compass guiding both social organization form (e.g. social contract theory, democracy, human rights) and judicial practice (e.g. good faith principle, the principle of ‘nobody can profit from misconduct’). These principles are neither written nor directly binding. In Dworkin’s view, principles are the underlying value of rules, and they stand out when the case is disputable due to the defect of rules.
Therefore, we may conclude that Lord Wilberforce didn’t explicitly show any consideration of principles. We can’t also conclude his tendency to consequentialism.
Lord Scarman opposed integrating policy arguments to limit the defendant’s liability, although he recognized the anxiety of policy consideration. He believed that such consideration should be left to the legislature instead of court and thus improper reason to deny recovery of damages. He also contested that the law covers everything. This is familiar to Dworkin’s ‘seamless web’ metaphor. He believed the job of judges is to adopt the right part of the law, instead of making differences or advancements.
Lord Scarman’s point on policy consideration was then criticized by Lord Harwich. He said, ‘To attempt to draw a line at the furthest point which any of the decided cases happen to have reached, and to say that it is for the legislature, not the courts, to extend the limits of liability any further, would be, to my mind, an unwarranted abdication of the court's function of developing and adapting principles of the common law to changing conditions.’ Harwich shared his opinion regarding the adaptation of principle with Scarman, but on what’s within the scope of courts’ jurisdiction, he disagreed.
We may see the principle thesis of Dworkin is well-proven as the lords using principles to support their views quite frequently.
We may also conclude that the whole ‘draw the line’ things they argued is about the consequence of applying law this way or another. Their discussion very much based on the consequentialism. For example, the main disagreement between Scarman and Harwich is whether the question of extending the liability should be left to legislatures or remain in the courts. Analogical reasoning is also reflected in Harwich’s speech.
Conclusion
Since the theoretical disagreement exists, the conflicts often occur when hard cases invoke them. The outcome of the McLoughlin case is unanimous among the lords, but the lords’ opinions show more debates than consensus. To remain the coherence and consistency of law while giving justice outcome from the perspective of tort law is the lords’ goal and consideration. This is also the goal that MacCormick and Dworkin value. But their theories suggested different methods to get there. To conclude, in my point of view, Dworkin’s thesis of principles can better show the practice in this case and possibly in most cases in the common law. The lords seem to have tacit agreements on constructive interpretation by using principles support their rulings, whilst they still differ in implementing the consequential analysis.
Bibliography
Court decisions
Bourhill v Young AC, 92 (1943)
Daniels and Daniels v R White and Sons and Tarbard, 4 All ER 258 (1938)
Henningsen v Bloomfield Motors Inc, 32 NJ 358, 161 A2d 69 (1960)
McLoughlin v O’Brian, 2 WLR 982 (1982)
Riggs v Palmer, 115 NY 506, 22 NE 188 (1889)
Secondary sources
Dworkin, Ronald, ‘Law’s Empire’, Belknap Press (1986)
Dworkin, Ronald, ‘Taking Rights Seriously’, Harvard University Press (1977)
MacCormick, Neil, ‘Legal Reasoning and Legal Theory’, Oxford University Press (1978)
MacCormick, Neil, and Aleksander Peczenik ‘Coherence in Legal Justification’, Theory of legal science, 235, 251 (1984)
- Ronald Dworkin, ‘Taking rights seriously’ (Harvard University Press, 1977), p. 22 ↑
- 115 N.Y. 506, 22 N.E. 188 (1889) ↑
- 32 N.J. 358, 161 A.2d 69 (1960) ↑
- Ronald Dworkin, ‘Law’s Empire’ (Belknap Press, 1986), p. 209 ↑
- Ibid. at p. 211 ↑
- R. Dworkin, supra, note 1, pp. 44-45 ↑
- Ibid. at p. 110 ↑
- Ibid. at p. 115 ↑
- R. Dworkin, supra, note 4, pp. 52-55 ↑
- 4 All E.R. 258 (1938) ↑
- Neil MacCormick, ‘Legal Reasoning and Legal Theory’ (Oxford University Press, 1978), pp. 19-23 ↑
- Ibid. at p. 24 ↑
- Ibid. at p. 68 ↑
- Ibid. at p. 70 ↑
- Ibid. at p. 95 ↑
- Neil MacCormick, ‘Coherence in Legal Justification’, in Theory of legal science 235-51 (Aleksander Peczenik et al. eds., 1984) ↑
- N. MacCormick, supra, note 11, p. 155 ↑
- 2 W.L.R. 982 (1982) ↑
- A.C. 92 (1943) ↑
- Ibid at p. 10 ↑