Logic, rationality and rule-following in judicial decision: a review of H. L. A. Hart’S doctrine

The key thesis of the paper is Hart’s decentration of logical instruments in judicial decision (as a specie of a rulefollowing), understood as being subjected to an art of interpretation and qualification of particulars as well as to a reaching social goals and consequences.

KASATKIN Sergey Nikolaevich

Ph.D. in Law, professor of Theory and History of State and Law sub-faculty of the Samara Law Institute of the Federal service of execution of punishments of the Russian Federation

In post-soviet jurisprudence and legal philosophy rationality traditionally associated with logic, understood as a universal way of explanation. This view, however, does not take into account im­portant developments in the XX^th century (Western) philosophy, including analytic linguistic philosophy of «later» Ludwig Witt­genstein, John Langshaw Austin et al., that show limitations of logical instruments. The same applies to a doctrine of a famous Oxford philosopher and jurist, Herbert Hart (1907-1992) — one of key theories for Western (Anglo-American) jurisprudence of the second half of the XX^th century. Applying ideas of analytic phi­losophy to law, Hart contributes to redefining boundaries and re­lationships of logic and rationality in explaining judicial decision which seems meaningful to a relevant enrichment of contempo­rary post-soviet philosophical-legal thought. Thus a discussion of Hart's doctrine composes a subject of this paper.

1. Coming from Austin's and Wittgenstein's ideas, Hart re­fers to a debate between formalism and American legal realism as conceptions of judicial decision. For formalists a judicial deci­sion seems to be a logical inference from a «closed» system of law, containing answers to all legal questions. In realists' view such a theory and practice are «mechanical jurisprudence» and «abuse of logic» and are inadequate to a real state of affairs: the decisions are based not on rules and logic, but on experience and judicial choice.

Hart here offers a middle position. For him (like for Wittgen­stein and Austin) a meaning of a word is a way of its use. The sta­bility of meanings is established by a typicity of such use, creat­ing uncertainty in nonstandard, borderline cases, when language «breaks down» and «we don't know what to say» (as in situations of a goldfinch, quoting Virginia Woolf, by Austin or a vanishing chair by Wittgenstein). Hence Hart distinguishes clear and bor­derline cases of applying a term and so a relevant rule. Language and law predetermine a legal outcome in clear cases and fail to do that in borderline ones, making necessary a judicial discretion as a choice between alternatives. Thus, in Hart's classic example, a prohibition of a vehicle in the park is clear in relation to a car, but is vague in respect to a bike, etc. The answer here is not absolutely settled or completely open, it is underdetermined.

Accordingly Hart conceives a judicial decision largely along a Wittgenstein's model of rule-following. First, an application of a rule is established not by its wording and abstract calculus, but by a socio-normative context of its use: a rule is a socially accept­ed and practiced standard of conduct. Second, even in borderline cases a judicial decision composes a rule-following, though requir­ing additional efforts or operations: interpretation, reasoning and so on. (Hart also seeks to explicate criteria for rule-following or, more precisely, grounds for a proper ascription of following legal norms to a judge: a presence of an «internal» normative attitude, justification or criticism of someone's actions through an appeal to rules, etc. However, these are seemed to be insufficient both as counterarguments against realism and as a general explanation of judicial conduct along the model of following (legal) rules).

5. What is the role of logic and logical explanation in this mod­el? Hart rejects a characterization of «mechanical» decisions in bor­derline cases as «an abuse of logic», while decentering importance of logical tools. According to Hart, logic is only a hypothetical for­mal connection of antecedents and conclusions, whereas the crux of judicial decisions is an art of interpretation and qualification of particulars, i.e. the question of establishing meanings of terms and rules as well as their proper application in light of social objectives and values. The so-called «mechanical» decisions are either judge's denial of an openness of rules and a need for a choice (causing a «blind» decision) or, more often, a conscious choice, based on grounds, not recognized by critics. Hence Hart generally rejects a logical-deductive model of a decision: even if it is possible to state judicial reasoning through logical means, such a statement is not able to grasp its essence. (Here Hart doesn't discuss Wittgenstein's thesis about logic as a specie of language-games, leaving open a question of whether it is possible to establish law totally without logic. It seems that for him such a conclusion is too radical).

• Accordingly, in Hart's view a rationality of judicial de­cision is not confined to its logical rationality or correctness. It is rather a social acceptability or legitimacy, coupled with a conscious character of a decision, rule-following in borderline situations, and an account of social objectives and consequences. Also this ratio­nality is multiple, irreducible to a (concrete) morality and allow-
• Hart H. L. A. Positivism and the Separation of Law and Morals. S. III.

ing various ideological patterns. At the same time Hart's doctrine contains a tension between the ideas of judicial decision as follow­ing a rule (in Wittgenstein's spirit, describing a language practice) and as an implementation of ethical standards or social goals even against existing regulations (like in jurisprudential theories of natural law or legal realism). Here Hart, apparently, also offers a moderate position. Within his project of analytical jurisprudence he describes a decision primarily as a rule-following, bringing oth­er issues beyond his discussion. So a «core» of a linguistic meaning (as, too, laws of logic) rather constitute a limitation for a judge's choice, though not being an insurmountable obstacle for a possible deviation from a rule (or rather for following one rule contrary to another) — the main thing here is that such deviation should be a deliberate and rational choice. Hart also concedes various un­derstanding of what constitutes following a rule in different social contexts as well as different versions of decisions and justifications in an uncertainty situation.