Faced with this problem the High Court sought to resolve it by looking for an interpretation of ‘judicial authority’ able to accommodate Swedish practice and found it, not surprisingly, in Swedish practice, which gave powers of arrest to prosecutors, recognised their independence, and accepted them as members of judicial associations. It failed to see that, by citing national practice to interpret principles meant to govern it, it must negate the rights they protect.
How could such experienced judges could fall into this tautological trap? The question invites a closer look at a theory of law, referred to above, which is widely influential among practitioners and judges. The theory, known as ‘legal positivism’, sees law in empirical terms as a model of rules that are the product of law making bodies, primarily legislatures and courts. For a rule to be a rule of law there must be a judge or other authoritative person or body who, at a given time and place, made it so; be it to resolve a dispute or implement a legislative policy.
The theory says that if there is no clear rule, or conflicting rules by courts with equal authority, judges have discretion to ‘make’ law to clarify the matter. Hence if a rule prohibits vehicles in the park, it excludes trucks, cars and motorbikes, probably ride-on lawn mowers and electric bicycles, but what about scooters, wheelchairs, push carts, hovercraft and model airplanes? In these ‘penumbral’ cases the theory insists that, because unclear law equates to no law, the court must decide what the law should be. It can now pursue a policy of its own, be it to deter noisy children or to encourage use of the park by the disabled.
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The theory treats legal principles as less articulate rules which, being vaguer, confer more law-making power. Judges will be guided by previous interpretations but the spongy nature of principles is such that the central core of clear law may be small: the penumbra of unclear law large. It means judges interpreting principles will be making new rules, adding to the list of rules which collectively define their meaning. In doing so they exercise discretion akin to that of the legislature. They are free to pursue social goals of their choice, in Assange’s case either to support government policy by making extradition easier or to protect his rights.
This ‘realist’ view of principled decision-making is widely taken for granted by lawyers, political pundits and others, and has great influence on public debates. It underlies the main objection to a bill of rights, that it gives unelected judges immense power to legislate social policy. That complaint will remain as long as the positivist theory holds sway.
But this theory has grave flaws, as Ronald Dworkin, successor to the late HLA Hart in the Oxford Chair of Jurisprudence, explained nearly half-a-century ago. Law, he argued, cannot rest on a simple model of rules, and unclear law cannot be equated with a licence to make law. Legal principles, he reasoned, do not confer this kind of discretion; they are abstract but fully articulated standards, which impose a different kind of obligation on judges, but still govern the decision. They are, it might be said, designed for unclear cases - their logic is adapted to this role in that, unlike rules, they have dimensions of both weight and point, which judges must judge. But if judges have this duty they are not free to pursue social goals - in Dworkin’s words, they are never off the hook of obligation.
Despite this account (the full thesis is in Law’s Empire, Fontana, 1986) which, after decades of argument and hundreds of books and articles, no one has yet managed to refute, the law-making theory has enduring appeal for lawyers. This is in part because it is seen as a ‘realist’ response to the more ambitious claims of classical Natural Law theory, its historical enemy, but also as a refutation of ‘mechanical jurisprudence’, a fictitious theory of law invented to confirm its own superiority. Its continuing appeal is a testament to the value of Keyne’s warning about ‘practical’ men being the slaves of yesterday’s theory.
What influence, if any, did positivist thinking have on the Assange ruling, given the Act chose not to define the meaning of ‘judicial authority’, leaving this crucial law unclear? The theory says judges must do their best to fill the gap. They were free to support U.K. policy by dismissing the appeal, or protect Assange’s rights by allowing it. But this is where the theory comes unstuck because the idea that his rights should depend on such idiosyncratic factors as the policy preferences of judges is so repugnant to the judicial mind, and to the ideal of the rule of law, that it was never likely to be a conscious reason.
Instead the judges, aware their duty was to clarify rights not make social policy - a role for which they have neither mandate nor expertise - took the traditional path and sought to rest their decision on the ordinary, literal meaning of the Act, which they saw as an issue of fact; their ruling would then be impartial, because facts are not matters of choice.
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The difficulty with this ‘objective’ approach was that the facts showed the meaning of ‘judicial authority’ in the UK was different to its meaning in Sweden so the decision, if one is a positivist, still required judicial choice. Assange’s fate was sealed when the Court opted for Swedish usage which, reflecting Swedish practice, furthered a policy of recognition, rather than a British common law meaning which protected his rights. So in the end the positivist theory prevailed. There is no hint of this anywhere in the judgment because the choice is never made explicit, and perhaps the judges themselves were not aware of it.
The second problem with this ‘objective’ approach is that the Court ignored its own advice that the Act must be read in light of the European Framework Decision and the basic rights and principles it espoused, including the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union. If the Act must be read in light of these rights and principles, there is no room to choose a meaning for policy reasons.
If we now ask what this case has to do with legal philosophy, the answer seems clear: If judges could stand back from the theory which treats legal principles as fuzzier rules calling for judicial choice, they might see them as standards of a different kind, as precise in the duty they impose on courts as rules, and whose raison d’etre they have an obligation to interpret, just as they have a duty to assess their weight - they had, after all, more than enough weight to invalidate the arrest warrant of a Swedish minister.
Those interested in the rule of law as a moral and constitutional ideal will be anxious to see if Britain’s highest court can do a better job of defending it.