Part AThis essay will outline all the ways in which Hartand Dworkin would reconcile the decision in Chester v Afshar with their theories, simultaneously offering a critique of both the theories.
Chester v Afshar in context of Harts theoryThere is a general consensus on the pre-eminence of Harts positivist theories; built on the works of Bentham it maintains that morality and the law are distinct concepts.Hart in developing these theories introduced “the pedigree thesis which is considered central to positivist theory. It claims that rules valid with in a modern legal system must meet the criteria set out in the rule of recognition. Therefore, according to Harts scheme, only those rules which satisfy the criteria of legal validity set out in a legal system's rule of recognition may be classified as law. Anything else, including rules of morality and other social standards, cannot be law and will therefore not be directly relevant in the process of adjudication carried out by the courts. Based on these facts it can be concluded that in Chester v Afshar dissenting judge's, Lord Bingham and Lord Hoffman, approach is more positivists like Hart that is applying the law within the rule of recognition, in this case it is the strict rule of causation. As Lord Bingham stated in Chetser v Afshar: “Satisfying the ‘but for' test is necessary if not a sufficient condition of establishing causation. Here in my opinion, it is not satisfied. Miss Chester has not established that but for the failure to warn she would not have undergone surgery.” Lord Hoffman supported the view with his own hindsight. His subsequent statement perhaps reflects Harts view of separating identification of the law from its moral evaluation. “ Nor do I agree with Professor Honores moral argument for making the doctor an insurer, namely that his act caused the damage. ” Seeing from positivist view such as Hart, It would be very difficult to suggest the modification of the rules of causation without accepting that there would be a moral cost associated with it. Hart might perhaps refer to the case of the Speluncean explorers where we saw that the positivist judges applied the law the idea was that you should leave it to parliament to make changes to the law, and even if there are moral issues the judges should just follow the law. At a first glance, one might conclude that Hart would regard the outcome is Chester v Afshar as unacceptable, as despite there being a rule the judges decide to go a bit further. However deep observation reveals that Hart might justify the conclusion reached by the majority as one falling under his concept of ‘open texture'. Hart argued that with all general rules, there will be a ‘core of certainty', central cases where the application is clear, and a ‘penumbra of doubt', where the application of the rule is uncertain. At this margin of uncertainty Hart concluded that judges inevitably must use their discretion to make new law, on the occasions where the legal rules have “open texture”. In exercising this discretion, the judge or official will look to the purposes or the social consequences of adopting a certain interpretation of the rule (e.g. competing policy arguments), as the majority judges did in Chester. The majority went on to allow the policy extension, telling us that, just as in Fairchild, there was in this case, too, a special case for making an exception. Lord Steyn, one of the majority judges justifies the outcome in Chester in the following words: “…. the present case -cannot neatly be accommodated within conventional causation principles. But he was also right to say that policy and corrective justice pull powerfully in favour of vindicating the patient's right to know.” According to positivist like Hart, the process of adjudication in these situations then amounts to almost legislation, giving judges the ability either to make new law or fundamentally to alter the meaning and range of application of existing laws.  Chester v Afshar reconciled with Dworkins theory However theorists like Ronald Dworkin argue that this positivist approach does not accurately reflect and explain what in fact happens when courts make decisions in ‘hard cases'. Dworkin's starting-point might sensibly be regarded as his attack on Hart's model of rules. For Dworkin law consists not merely of rules (as Hart would have us believe) but also of what Dworkin calls ‘non-rule standards'. ‘Dworkin believes that when a court has to decide a hard case it will draw on these (moral or political) standards -principles and policies- in order to reach a decision. And that there is no rule of recognition which distinguishes between legal and moral principles.' 
i) Moral standards and the lawIn Justice in Robes Dworkin reflects upon the appropriate function of morals in legal theory. Dworkin proffers a hypothetical case in which he argues that adopting a Hartian ‘source thesis'would annihilate Mrs Sorensen's action since it fails to include moral principles, and there is no legislation or judicial decision that would satisfy Hart's source thesis that could come to her aid. Dworkin therefore concludes that in cases such as this one, the question of what is the law is resolved ‘by asking whether the best justification of negligence law as a whole contains a moral principle that would require that result in her circumstances.' It could be said that Dworkin may categorise Chester to be in line with the Sorensen's case, likely requiring moral considerations to be taken in account.
ii) Principles and rules distinguishedPrinciples describe rights; policies describe goals. It is part of Dworkins argument for ‘taking rights seriously' that he contends that rights have a ‘threshold weight' against community goals; this is his theory of ‘rights as trumps'. If we are to respect individual rights, he argues, they must not be capable of being squashed by some competing community goal. By using cases such as Riggs v Palmer Dworkin demonstrates that certain situations necessitate the application of principles in order to avoid absurd results. The court held in Riggs, that the application of the rules was subject to the principle that ‘no man should profit from his own wrong'. Dworkin argues that this decision demonstrates that, in addition to rules, the law incorporates principles.. Dworkin would perhaps argue that in Chester the majority judges are applying principles, the relevant principle or right that judges are protecting in Chester is the right of autonomy and dignity. Lord Steyn quoted Ronald Dworkin , Life's Dominion, in support : “ The most plausible[account] emphasises the integrity rather than welfare of the choosing agent; the value of autonomy, on this view derives from the capacity it protects.” In the case of Chester Dworkin might disagree with dissenting judges, as they were inclined towards applying the strict rule of causation, rather than taking principles in account.
iii) Hercules and the limits of judicial discretionHart argues that in certain circumstances a “penumbra of doubt” occurs whereby judges inevitably use their discretion in deciding cases.Although Dworkin acknowledges strong discretion in specific circumstances, he provides an alternative theory regarding judicial decision-making processes in “hard cases”. Dworkin argues that by apportioning weight to principles and applying them when deciding “hard cases” the penumbra of doubt is removed leaving a single correct answer ascertainable in each case. Within this theory Dworkin developed Hercules J, as an archetypal judge capable of ascertaining this correct answer. It can be argued that in Chester Dworkin would perhaps say that the majority judges are weighing principles, as two principles are seen to be conflicting. First one being the traditional principle of English law that a tortfeasor would not be liable unless he had, by his conduct, increased the risk to which a Claimant was exposed. Secondly the principle or right judges are trying to protect is that of an individual's autonomy and dignity. According to Dworkin in such a situation the conflicting principles have to be weighed and balanced against each other before the decision is made to apply one or the other.As we see the outcome of Chester is based on policy grounds by the majority judges, Dworkin would justify this outcome explaining that in a hard case the judge will apply rules, or, when rules do not apply, as seen in Chester,he will balance legal principles in order to work out which one ‘fits' in the scenario before him. There is ‘one right answer' which the judge strives to find (‘Hercules' would always find it ).Dworkin would say that in cases where principles conflict, as in Chester, Hercules would be able to talk about policy, only because both the principles fit, it would be relevant to consider the political considerations of these principles as both of them fit. Furthermore, Hercules treats ‘fit' holistically. This may require him to consider related branches of the law to see whether the community has committed itself to some background right from which the concrete right would follow. Thus in arriving at the outcome of Chester, Dworkin would say that the judges have indeed taken in account other related branches of law in arriving at the conclusion, for example by referring to medical law, as well as the law of uninformed consent. And have weighed the two principles at hand and applied the one that best fits. In this case in conflict with the traditional principle of causation, as mentioned above, the principle of a right to autonomy (informed consent) overrules in terms of political morality. Moreover, in Taking Rights Seriously, Dworkin specifically addresses the Spartan Steelcase, which he regards as proving his theory of adjudication,as he quotes: ‘That is, I suppose, what is meant by the popular idea that a court must be free to decide a novel case like Spartan Steel on policy grounds.' Dworkin would further justify the outcome of Chester based on policy grounds, by arguing that ‘if a judge's decision appears, on its face, to be based on considerations of public policy, it ought really to be understood, as an appeal to the rights of individual members of the public.'
Criticism of Hart and DworkinHowever both the approaches adopted by Hart aswell as Dworkin are not free from criticism. Although compelling, Dworkins critique is not without flaw. Hart argues that the existence of discretion is a “conceptual truth” Dworkin theory being “a noble dream” .Also principles can be considered “qualitatively different” making it impossible to comparatively weigh them. For Raz, Dworkin has misstated legal principles, “far from excluding discretion…they presume its existence and direct it”. Perhaps too cynically, this leads Raz to suggests that one can only expect a low degree of consistency from judicial pronouncements due to the fact that strong discretion allows them to decide cases based on their own opinions and conceptions of what is right. Within his post-scripts Hart concedes that tests whether the law conforms to morals or principles may be applied, provided law and morals remain distinct. However,in many ways, Hart discussion of “open texture” was preliminary: there is much work that still must be done in disentangling arguments based on the nature of language and arguments based on the nature of rules, and Hart is probably too quick to conclude immediately from the existence of “open texture” that judges do or (should) have discretion in deciding hard cases.
ConclusionIt can therefore be argued that the outcome reached in Chester would be supported by Dworkin on the basis that the judges have exercised ‘weak discretion' and are applying principles reflecting policy to protect individual rights, which is ultimately the aim of a Dworknian approach ‘protection' of individual rights. Or the other end of the argument could be that the outcome of Chester is in fact a little more vague than that, the law could be seen as being in line with Harts opens texture , that we have a rule on causation, but it's only a very strict rule and we have seen it in the past that it has been modified for eg in Fair child therefore it can be modified again because the rule has an open texture, so that you can narrow and widen precedent in which case Hart would not have such a problem with it, however he might has some problem with it because Hart talks about efficiency and rules being certain as positivist think that the best rules would be rules that tell us what to do, having rules which we can chop and change would be seen as problematic by a positivist like Hart.
Part BThe object of this essay is to analyse the strengths and weaknesses of ‘fact scepticism' in context of Miller v Jackson. Firstly it will distinguish between ‘rule scepticism' and ‘fact scepticism' and then go examine ‘fact scepticism' with reference to Miller v Jackson. It will then look at the strengths and weakness of ‘fact scepticism'. The final part of the essay will argue that although with strengths ‘fact scepticism' is not free of flaws.
Fact scepticism v Rule scepticismThose who declare allegiance to the banner of legal realism might just as easily be called sceptics, and they sometimes are, or even cynics. Legal realists attack what they claim to be only too prevalent in traditional legal science, the conception of law as a ‘brooding omnipresence in the sky'. In order to discuss the strengths and weaknesses of fact scepticism it's important that we briefly reflect the idea of rule scepticism as well. Rule sceptics, include those like Llewellyn, concentrate on the notion that rules do not necessarily, automatically lead to a particular conclusion or judgement so they argue that judges do not reach their decisions in a formalist way by applying rules, principles and concepts to the facts. Oliver Wendell Holmes Jr, whose concept shows shades of legal positivism, famously quoted that “General propositions do not decide concrete cases”.Realists however, argue that the legal process is really a rationalisation of a result, judges decide on the results usually by reference to politics and then retrospectively rationalise it, so that it seems as legally right and inevitable. However, some of the later legal realists like Jerome Frank took a more radical position. He criticised authors like Llewellyn for what he called their “upper courtitis”.They were merely ‘rule sceptics' whereas he, Frank, was a ‘fact-sceptic ‘, who were concerned to ‘uncover the unconscious forces that affect the discovery and interpretation of the facts of the case.' For Frank, most realists missed the important aspect of unpredictability in the judicial process: the elusiveness of facts. Thus the various prejudices of judges and jurors often crucially affect the outcome of the case.The main thrust of Frank's attack was directed against the idea that certainty could be achieved through legal rules. This, in his view was absurd.Thus 'fact scepticism', typified by the works of Frank, ‘essentially claimed that the facts of cases were ‘illusive' and therefore one could never produce any theory which systematically mapped the facts of cases to the decisions of the court' One commentator has gone so far as to describe the assertion, “in deciding cases judges respond primarily to the stimulus of the facts of the case”, as the “core claim” of American legal realism.
Fact scepticism in context of Miller v JacksonReferring to the case in question that is Miller v Jackson it is hard to deny that Lord Denning was very much persuaded by the ‘realist' school of thought: one only has to look to the idyllic village cricket club that his Lordship portrays in Miller, to find that it accords perfectly with the realist fact sceptic analysis and as such it is not surprising that his theory best fits with realism. Moreover, the law being whatever the courts said it was would greatly appeal to his Lordship as he was always trying to rid himself of the constraints of the law to do what he, sincerely, thought was best. So when describing the events Lord Denning is presenting the facts in a way that suggests the merit of the outcome which he has already reached. As he quotes: “In summertime village cricket is the delight of everyone…... [I]n the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well…………. [T]he whole village will be much the poorer. And all this because of a newcomer who has just bought a house there next to the cricket ground.”
Strengths and WeaknessesFrank is certainly the most accessible of the realists, indeed, as Twining puts it, ‘clever rather than wise…. but somewhat erratic in his judgements…' .At the end of the day Frank's fact scepticism is implausible simply because it is wildly exaggerated. ‘To accept that the facts are so illusive, that there is simply no rhyme or reason to the judge's or jury's decision, seems to misrepresent and insult both at the same time. It is also worth pointing out that one does not really find any disagreement that supports a genuine scepticism about facts.' Rather, the scepticism lies in scepticism about human rationality. His scepticism lay in a judge's or jury's ability to respond to that reality in any sort of realistic way; his position eventually amounts to the assertion that judges and juries are unable to decide like cases alike and unlike cases differently, the most basic requirement of justice. Again, whether in fact judges and juries often fail to be rational in just this way is open to question; a claim that they are constitutively unable to do so seems exorbitant. If the belief that rules matter, inside and outside courts, were to be totally discredited, it would not merely confirm the cynicism that many share about the law; it would also lead to total negativity about the efficacy of law reform. The only possible ‘law reform' would be to substitute officials with enviable prejudices for those officials we have. Judges, old or new, would automatically have absolute discretion, but we might as well make this plain by giving it to the new ones expressly- for rules to guide them would not guide them. However more positively, it has had ‘some influence in directing research towards non-rule-governed operations -towards studies of the personal background of judges, the actual workings of the jury system, the practical importance of availability of legal representation, and the consequences of formality in procedure. But these matters were not altogether neglected before' the introduction of the concept of fact scepticism.
BooksØ Ronald Dworkin, Taking Rights Seriously, Gerald Duckworth & Co. Ltd (1996) Ø James Penner, David Schiff and Richard Nobles, Introduction to Jurisprudence and Legal Theory: Commentary and Materials, Oxford University Press (2002) Ø Brian Bix, Jurisprudence: Theory and Context, (Thompson: Sweet & Maxwell) 4th Edition Ø Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) Ø J.W. Harris, Legal Philosophies, LexisNexis (2003), 2nd Edition Ø Routledge.Cavendish ‘Jurisprudence' fifth edition Ø J.E. Penner, McCoubrey & White's Textbook on Jurisprudence, 4th ed., OUP (2008)
ArticlesØ Jerome Frank, “Are judges Human?”, 80 University of Pennsylvania Law Review 17 Ø (1931)K. Himma ‘Trouble in Law's Empire: Rethinking Dworkin's Third Theory of Law' (2003) OJLS Vol. 23, No.3 (2003) Ø Allan C. Hutchinson and John N. Wakefield, A Hard Look at ‘Hard Cases': The Nightmare of a Noble Dreamer,  2 OJLS 86 Ø Stephen Perry, Judicial Obligation, Precedent and The Common Law  7 OJLS 215 Ø Lon L. Fuller, The Case of the Speluncean Explorers  4 Harvard Law Review 616
CasesØ Miller v Jackson  QB 966 Ø Spartan Steel & Alloys Ltd v Martin & Co. (Contractors) Ltd  1 QB 26 Ø Chester v. Afshar  UKHL 41 Ø Fairchild v. Glenhaven Funeral Services Ltd  1 AC 32 Ø Riggs v Palmer  115 NY 506  H.L.A Hart ‘Positivism and the Separation of Law and Moral'(1958) Quoted in Penner, Schiff and Nobles, Jurisprudence and Legal theory: commentary and materials (Butterworths,LexisNexis 2002) p.151  Also known as “ the master rule theory”  Also known as ‘master rule'  Routledge.Cavendish ‘Jurisprudence' fifth edition, at page 65  Chester v.Afshar  UKHL 41 at page 141  Chester v.Afshar  UKHL 41 at page 147  “The Case of the Speluncean Explorers,” Harvard Law Review, vol. 62.no 4 (1949) pp.616-645  Will be referred to as ‘Chester' in the remaining essay.  Majority judges in Chester v Afshar; Lord Hope, Lord Walker, Lord Steyn  Hart, The Concept of Law,p.123  James Penner, David Schiff and Richard Nobles, Introduction to Jurisprudence and Legal Theory: Commentary and Materials, Oxford University Press (2002) at page 121  Fairchild v. Glenhaven Funeral Services Ltd  1 AC 32  Chester v.Afshar  at page 146  Routledge.Cavendish ‘Jurisprudence' fifth edition at page 65  They are those cases which deal with a fundamental proposition of law, upon which lawyers disagree. See Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 147  Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 142  Ibid  Ronald Dworkin, Justice in Robes (Cambridge, Mass and London; Harvard University Press,2006).  i.e. that law identified by reference to statutes, precedents, and social practice  Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 151  Ronald Dworkin, Justice in Robes (Cambridge, Mass and London; Harvard University Press,2006).  Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 145  Riggs v Palmer  115 NY 506  Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 146  Chester v.Afshar  UKHL 41 at page 144  Argued by J. Raz quoted in S. Perry ‘Judicial Obligation, Precedent and the Common Law' (Summer 1987) OJLS Vol.7 No.2 page 233.  R Dworkin A Matter of Principles p.122 quoted in J.W Harris Legal Philosophies( 2nd edition Lexis Nexis UK 2003) page 207.  Routledge.Cavendish ‘Jurisprudence' fifth edition at page 66  Ronald Dworkin, Taking Rights Seriously, Gerald Duckworth & Co. Ltd (1996) at page 60  J.W. Harris, Legal Philosophies, LexisNexis (2003), 2nd Edition at page 200  Spartan Steel & Alloys Ltd v Martin & Co. (Contractors) Ltd  1 QB 26  Ronald Dworkin, Taking Rights Seriously, Gerald Duckworth & Co. Ltd (1996) at page 83-85  Ibid  K. Himma ‘Trouble in Law's Empire: Rethinking Dworkin's Third Theory of Law' (2003) OJLS Vol. 23, No.3 (2003) page 346.  Hutchinson and Wakefield ‘A Hard Look and ‘Hard Cases': The Nightmare of the Nobel Dreamer'(Spring 1982) OJLS Vol.2 No.1 page 90.  J.W. Harris Legal Philosophies (2nd edition Lexis Nexis UK 2003) page 209.  James Penner, David Schiff and Richard Nobles, Introduction to Jurisprudence and Legal Theory: Commentary and Materials, Oxford University Press (2002) at page 353  Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 136  Stephen Perry, Judicial Obligation, Precedent and The Common Law  7 OJLS 215 at page at page 233  J.W. Harris, Legal Philosophies, LexisNexis (2003), 2nd Edition at page 209  HLA Hart, The Concept of Law.Second edition, page 250 discussed in R Wacks Understanding Jurisprudence (OUP, Oxford 2005) page 70.  Also termed “soft positivism” JW Harris Legal Philosophies 2nd edition page 121.  Brian Bix, Jurisprudence: Theory and Context, (Thompson: Sweet & Maxwell) 4th Edition at page 47  Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 172  J.W. Harris, Legal Philosophies, LexisNexis (2003), 2nd Edition at page 98  Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 179  Holmes meant to refer to quite general legal concepts or principles. Holmes believed that specific legal rules would determine results in most legal cases.  Followers of legal positivism are generally called legal positivists like Hart mentioned in part A.  Loncher v New York, 198 U.S. 45 at 76 (1905)  Jerome Frank, “Are judges Human?”, 80 University of Pennsylvania Law Review 17 (1931)  J.W. Harris, Legal Philosophies, LexisNexis (2003), 2nd Edition at page 100  Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 179  For example,plus or minus reactions to women,or unmarried women, or red-haired women,or brunettes, or men with deep voices or those who have pronounced gestures or nervous tics.See Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 179  Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 179  Ibid  J.E. Penner, McCoubrey & White's Textbook on Jurisprudence, 4th ed., OUP (2008) at page 60  Brian Leiter, “Legal Realism”, in A Companion to the Philosophy of Law and Legal Theory (Dennis Patterson ed., Blackwell, Oxford,1986),pp. 261-279,at p.269  Miller v Jackson  QB 966  Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 180  Miller v Jackson  QB 966 Per Lord Denning MR, at 976.  Raymond Wacks, Understanding Jurisprudence: An Introduction to Legal Theory, Oxford University Press (2005) at page 180  J.E. Penner, McCoubrey & White's Textbook on Jurisprudence, 4th ed., OUP (2008) at page 62  Ibid  J.W. Harris, Legal Philosophies, LexisNexis (2003), 2nd Edition at page 103  Ibid at page 100-101
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