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Obligatory Rules Followed By Society
According to H.L.A. Hart, the society has to follow a set of obligatory rules. A society is normally a close knit community that follows a set of customs and traditions. However, according to Hart, the society which follows only primary obligations tends to face challenges which do not enable the society to have any growth or flourish in the economy.
The first of the challenges faced by the society would be the uncertainity of the various rules and obligations followed by them. The society is not always well informed of the rules binding them. Most people are expected to follow rules regarding which they may have various doubts on. There may be doubts regarding the interpretation of the rules or of the fact that many may not even know the rules well enough to follow them. Due to this, people may tend to interpret it as they like and the rules are therefore not applied in a proper manner. Furthermore, it also faces the challenge of not being implemented properly due to misinterpretation of rules.
The second of the challenges faced by the society would be that the primary rules may be of a static character. According to Hart, the rules in the society remain the same, therefore, as they are static in nature without any changes , no growth in the society will take place. Instead these rules will go through a slow process of degenerating slowly. It may be followed in the beginning and slowly it tends to lose it importance and therefore, disintegrates.
The third of the challenges faced by the society would be that the primary rules create inefficiency. If the rules are not implemented properly, they tend to create inefficiency in the society, and therefore the society may not feel obligated to follow these rules properly.
Taking all these drawbacks into consideration, Hart formulates remedies to battle these challenges. These remedies he puts forward as secondary rules. For uncertainty, he puts forward the rules of recognition. Under this, he states that a system must be established in order to clear the doubts regarding the rules that are to be followed by the society. The society has to be made clear on the proper interpretation of the rules so that no one tends to deviate from following the rules in the right manner. The system to clear doubts and make the rules clear to the people has to be well-implemented and systematically done so that there are absolutely no doubts in the minds of the people.
For static character of rules, Hart puts forward the rules of change. He believes that the only way there can be growth in the society is by introducing new rules and eliminating the old rules. For this, he provides examples such as contracts and wills which can bring about the introduction of a new rule. By eliminating an old rule, Hart states that it is required in order to prevent the degeneration of a rule. Only by introducing new rules or amending rules, can the rules be followed in a proper manner by the society. However, the society must be adequately informed of the changes in the rules
For the inefficiency of the rules, Hart puts forward the rules of adjudication. He believes that these rules must be implemented in a proper and regulatory manner. This can only be done by conferring special and judicial powers in the hands of a set of people who can easily regulate and make sure that the rules are followed by the society in a proper manner.
Therefore, Hart has concluded by saying that a society will be able to function in a systematic manner only when the remedies are applied and implemented in a proper manner to face the challenges faced by the obligatory society on the primary rules.
In Why Adversary Justice fails, John Langbein classifies the legal system into the ‘adversarial’ and the ‘non-adversarial’ systems. Adversarial system is one where the lawyers have to collect the information and facts regarding the case, present their facts and arguments before the judge and the judge, after hearing the facts and arguments of the case will narrow down the facts and will deliver the verdict. Whereas in a non- adversarial system, the judge decides the facts of the case and after hearing out the arguments, decides the verdict.
John Langbein compares the adversarial legal system to how a baseball match takes place where he mentions that when the person hits the ball with his baseball and goes to second base, sometimes due to turn of events you may not know whether he was in or whether he was made out by the person who might have been near the second base and caught the ball just in time. In this situation as well, the referee has to listen to both the sides of the story. Similarly even in the adversary system, the advocates will present the facts before their judge from their client’s viewpoint. However, Langbein also criticizes stating that sometimes one advocate may be more influential in acquiring the verdict of the judge in his/her favor.
Whereas in case of a non-adversarial system, John Langbein criticizes stating that since the judges decide the facts of the case, they may not decide a fair verdict as they may tend to be biased in their decision of the verdict. John Langbein takes the example of the O. J. Simpson case where the judge may have been biased in deciding the verdict of the defendant as the defendant was a black and the judge was a white.
Now a court in a non-adversarial system, follows the procedure of the judge deciding the facts. In deciding a murder case, the judge will hear out the arguments placed by the prosecution and the accused regarding the case. If the judiciary system has a jury, the judge can completely override the decision of the jury and deliver his own verdict. At times, the judge can be quite biased in his decision as he is given the power to decide the facts. So, under normal circumstances, the judge will completely stick to the rule of murder and deliver a verdict based on the facts he has investigated. He may listen to the arguments of the lawyers as well.
In an adversary system, the advocates investigate the facts and formulate their arguments accordingly. Then the advocates present the case before the judge by listing out the facts and putting forward their arguments in favor of their clients. The prosecution will first put forward the facts and the arguments, after which the accused will do the same. This helps in narrowing down the basic facts of the case and the judge has two viewpoints to decide from. Accordingly the judge will decide the basic facts from the two viewpoints and then decide his verdict accordingly. However, this may also lead to a wrong decision on the part of the judge if the accused is actually guilty of murder and if the advocate of the accused is much more influential.
Thus, the adversarial and non-adversarial systems have their respective drawbacks and yet, they have their merits too.
The judge, from the fictional court in Lon L. Fuller’s The Case Of The Speluncean Explorers, whose approach I agree with would be Foster’s approach. Foster believes in the implementation of an ancient law known as the natural law which is based on the natural principles which were prevalent in the ancient times. Natural law mainly lies down guidelines regarding the peaceful coexistence of man. Foster believed that when there is a problem in the coexistence of men, then the maxim of rationality must be used in sorting out the problem faced. He stated that when law does not have a solution to a particular challenge faced, then rational thinking which was used as part of the natural law should be applied here.
Foster believed that if one has to strictly follow the law, one can always interpret it differently to suit a particular situation. Foster stated that one can ‘break the letter of law without breaking the law.’ According to him, law could be changed in order suit a rare situation where no law provides a proper and fair outcome. I agree with this concept as law, at times, tends to be unfair and unjust and therefore, in order to deliver justice, one has to be given the right to interpret it differently without actually breaking the law.
Foster also believed in the utilitarian or the ‘greater good’ approach. This approach looks out for the society as a whole rather than a set of individuals. This approach mainly states that it is alright to encroach the right of the individual in order to protect the rights and the interests of the society as a whole.
Foster’s argument may not take law that much into consideration, but it tries to present a logical and rational thinking that has to also be taken into consideration when a judge is deciding the verdict of a particular case. Sometimes the law tends to be unjust and may not be able to deliver a fair verdict, so therefore, one has to definitely consider and approach in a rational manner as well to arrive at the best possible verdict.
There may be some who may criticize Foster’s approach by saying that one cannot interpret the law in any manner as one may like. Those few may believe that the law has to be followed word by word in the exact manner laid out. They may believe that even though it may not lead to a just outcome one cannot criticize the law. Examples of these critics are Tatting and Keen who were also judges in the fictional case of the explorers.
Tatting criticized Foster by saying that one cannot interpret the law in any manner and that the law had to be applied in the manner laid out however just or unjust the verdict maybe. He dismissed Foster’s approach as ‘unreasonable.’ Keen also criticized Foster by saying that the law has to be followed and principles which are not in place in present cannot be used to interpret law. However irrational the law may get, Keen stated that every wording of a particular laid out statute must be followed strictly.