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Published online by Cambridge University Press: 24 January 2025
In any field of law . . . there may arise the rare “landmark” case in which a court, usually a final appellate court, concludes that the circumstances are such as to entitle and oblige it to reassess the content of some rule or set of rules in the context of current social conditions, standards and demands and to change or reverse the direction of the development of the law.
1 Jaensch v Coffey (1984) 58 ALJR 426, 448 per Deane J.
2 Dworkin, RM, Taking Rights Seriously (1978) 115-123Google Scholar (hereinafter referred to as TRS).
3 McLaughlin v O’Brian [1982] 2 All E R 298, 310.
4 Hart, H L A, “American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream” (1977) 11 Ga L Rev 969, 979.Google Scholar
5 Jaensch v Coffey supra n 1, 450 per Deane J.
52 In re K (Infants) [1965] AC 201, 238.
53 There have been further challenges since this paper was delivered: Re Kearney; ex parte Northern Land Council (1984) 58 ALJR 218; Re Kearney; ex parte Japanangka (1984) 58 ALJR 231; Re Kearney; ex parte Jurlama (1984) 58 ALJR 243.
51 Re, L, “Oral v Written Evidence: The Myth of the ’Impressive Witness’” (1983) 57 ALJ 679.Google Scholar
49 S 51.
50 Aboriginal Land Commissioner Report for year ended 30 June 1979 (1980), 9-13.
45 ss 40, 43, 45, 46.
46 s 20(11).
47 s 45(5).
48 s 45(12).
39 s 19(1).
40 Pitjantjatjara Land Rights Act 1981 (SA) s 17.
41 s 6(2)(b).
42 s 17.
43 s 42.
44 The relevant provisions are described in Seven Years On (1984) chs 16-25.
36 Ford, H A J and Lee, WA Principles of the Law of Trusts (1983) para 904.Google Scholar
37 Alderson v Northern Land Council (1983) 20 NTR 1.
38 ss 19(6), 43(5), 44(3A), 48(2).
33 ss 45(2)(a), 45(12).
34 s 67.
35 s 23(3); see also ss 19(5), 48(1), 68(2).
6 Hutchinson, A C & Wakefield, J N, “A Hard Look At ’Hard Cases’: The Nightmare of a Noble Dreamer” (1982) 2 OJLS 86, 103-107.CrossRefGoogle Scholar
7 TRS, 32-34, 69-71.
8 Eg, it will be argued that Lord Scarman in McLaughlin v O’Brian supra n 3 was committed to holism in its primary sense and Deane J in Jaensch v Coffey supra n 1 was committed to holism in its secondary sense.
9 MacCormick, N, “On Legal Decisions and Their Consequences: From Dewey to Dworkin” (1983) 58 NYUL Rev 239, 249.Google Scholar
10 Supra n 1.
11 Harris, J W, Legal Philosophies (1980) 180Google Scholar; TRS, 23, 100.
12 The term “nervous shock” has been recognized as an imprecise and inaccurate term used to cover all forms of psychoneurosis, psychiatric and mental illness which may sound in damages. Nevertheless the term itself has also been regarded as useful and convenient, Jaenschv Coffey supra n 1 430-1 per Brennan J, & 443 per Deane J.
13 McLoughlin supra n 3, 311 per Lord Scarman; Jaensch supra, n 1 448 per Deane J.
14 Supra n 6, 91, 103-104.
15 Ibid 103.
16 Ibid 104.
17 Ibid 110.
18 Ibid 107-109.
19 Ibid 109. “Rules are nothing more than the articulated conclusions resulting from an appeal to those principles identified by reference to the soundest theory at a particular time”; & ibid 110 “the settled body of rules is claimed to be the motor force of the soundest theory”.
20 Ibid 109.
21 The authors concede this, ibid 106"when they point out that the distinction between “norule” and “unsettled rule” cases is of no theoretical consequence for his theory of adjudication.
22 Ibid 104, 106-7.
23 Paton v Trustees of British Pregnancy Advisory Services [1978] 2 All ER 987; ibid 106.
24 Ibid 107.
25 This will be considered below in sections 2 and 3.
26 Who is to say that Paton will not stand in the same position to some landmark case in the future as a case like Derry v Peek (1889) 14 AC 377 now stands to McA/ister (or Donoghue) v Stevenson [1932] AC 562.
27 Galligan, D J, Discretionary Authority: A Legal Study of Administrative Discretion (forthcoming) chap. 1Google Scholar.
28 [1969] 1 AC 191, supra n 6, 105.
29 Supra n 21.
30 Jaensch v Coffey supra n l 444 per Deane J when referring to the majority judgments in Chester v Waverley Corporation (1939) 62 CLR l.
31 H L A Hart, supra n 4, 979. Note that the authors of “A Hard Look at ’Hard Cases’ “ supra n 6, 104 claimed that the arch-positivist’s insistence on confining the judicial function to the strict application of rules ensures that he is completely unable to account for legal evolution and, as such, does not deserve serious consideration.
32 MacCormick, N, Legal Reasoning and Legal Theory (1978) 73-6, 97, 124, 273Google Scholar; and see a discussion of this argument in D J Galligan, “Arbitrariness and Formal Justice in Discretionary Decisions” in D J Galligan (ed) Essays in Legal Theory (1984) 154-9.
33 Supra n 6, 105-107.
34 Ibid 106.
35 Ibid 104.
36 See argument supra, part B.
37 Supra n 1. It is also easy, in the same way, to apply the dichotomy to McLaughlin v O’Brian supra n 1.
38 Supra n 6, 104. Note that this is also the practical conclusion of some “unsettled rule” cases, ibid 104-5.
39 9 Supra n 1, 448.
40 Ibid 437, [1932) AC 562.
41 [1964] AC 465.
42 Ibid, 437-8. Brennan J also recognized the constraints of universalizability by approving Lord Diplock’s passage from Dorset Yacht Co Ltd v Home Office [1970] AC 1004, 1060 where His Lordship cautioned against. misusing Lord Atkin’s general conception of relations giving rise to a duty of care (the neighbour principle) as a universal proposition.
43 Supra n, 28.
44 Supra n 6, 105 (italics added).
45 H L A Hart, supra n 4, 980-81 described Lord Atkin’s formulation as a “broad principle” which served both to define the relationships and so explain the already established clear rules and to provide an answer in the instant unsettled case. Note also that Deane J supra n 1, 441 analogized between the problem raised in Rondel v Worsley and the problem raised in Jaensch. If, therefore, Rondel was arguably an “unsettled principle” case, so too was Jaensch v Coffey.
46 H L A Hart, supra n 4,981 referred to Roscoe Pound’s “higher levels of the legal system” - above that of principles, there are the received values or ideals of the system.
47 Supra n 1, chap 1.
48 Supra n 32, 74-99. See also a criticism of thi5 argument on wider grounds in DJ Galligan, supra n 32, 160.
49 These words are taken from the description given to “unsettled rule” cases by the authors of “A Hard Look at ’Hard Cases’” supra n 6, 103.
50 It will be argued below that Dworkin’s definition of weak discretion is a concession that the “unsettled principle” case exists and correspondingly (but less importantly) that the “norule” case exists.
51 Supra n 4, 979.
52 Supra n 6, 90, 108.
53 TRS, 115.
54 Supra n 4, 983.
55 Ibid.
56 Arguably Neil MacCorrnick subscribes to holism but not particularism, see supra n 32, 246-258 esp 258.
57 Hereinafter referred to as “the discretion in the weak sense” or simply the weak discretion. Dworkin distinguished another sense of discretion (in the “second weak sense”) which describes the discretion one has when the decision is final and no higher authority may review or set aside that decision but this sense is not important for his theory of adjudication nor his attack on positivism. TRS 32, 69.
58 TRS 32-34.
59 Ibid 32, 69.
60 See D J Galligan, supra n 32 for criticisms of formal justice and arbitrariness as constraints on decision-making.
61 This is precisely the problem which faced Roscoe Pound. As H L A Hart pointed out, Pound was unable to solve the problem: “will not the same conflicts or alternatives present themselves at this highest level of received values or ideals?” Supra n 4, 981.
62 TRS 104.
63 Ibid 102.
64 Ibid 103.
65 Hart, H L A, The Concept of Law (1961) 121-32.Google Scholar
66 TRS 103.
67 Dworkin, R, “No Right Answer?” (1978) 53 NYUL Rev IGoogle Scholar; & “Law as Interpretation” (1982) 60 Texas L Rev 527.
68 “No Right Answer?” ibid.
69 Ibid 22.
70 Ibid 27. Dworkin developed this theory in his"article, “Law as Interpretation”, supra n 67 where he described the idea of each judge in the legal system being “like a novelist in a chain” supra n 67, 542. He expounds the notion of a “chain of law” wb.ich is analogous to the idea of a “chain of novelists” (where each novelist from a group writes a chapter in tum of the “one novel”). Every novelist (and therefore every judge) has the “dual responsibility of interpreting and creating” ibid 541.
71 Ibid 28. It is ironical that Dworkin here used a theoretical perspective which is similar to Hart’s internal attitude. In their article, “A Hard Look at ’Hard Cases’” supra n 6Hutchinson and Wakefield noted that as opposed to Hart, Dworkin took an internal point of view on the question of the existence and applicability of law, that is, Dworkin confined himself to observations about the attitudes of those who accept a given legal system (eg its governing officials) rather than of those who observe and experience a legal system without having to accept its rules as definitive (eg a visiting anthropologist). Hence the visiting empiricist philosopher to the group of Dickens’ scholars is not qualified to comment.
72 Ibid 28.
73 TRS 291-368 consists of Dworkin’s reply to eight of those critics.
74 Ibid 105.
75 Ibid 362.
76 Supra n 9.
77 Supra n 3, 310.
78 Supra n 1, 439, 441, 451.
79 Ibid 441.
80 Ibid 450.
81 Supra n 9, 243.
82 Ibid 244.
83 Ibid 257.
84 Supra n 1, 439.
85 Supra n 9, 255.
86 Supra 1, 450.
87 Ibid 451.
88 Ibid.
89 Ibid 441-2.
90 Ibid 453. Arguably Brennan J in that case was even more constrained by universalizability, than was Deane J, especially where Brennan J claimed that he did not find it desirable as a matter of policy or permissible as a technique to create new criteria of limitation on the foresee ability test. Ibid 436.
91 Supra n 6, 108.
92 Supra n 32, 105-27.
93 TRS 105-117.
94 Ibid 122, 340, 342, 360.
95 Dewey, J “Logical Method and Law” (1924-25) 10 Cornell LQ 17, 26Google Scholar as described in MacCormick, supra n 9, 241-2.
96 Llewellyn, K, The Common Law Tradition: Deciding Appeals (1960) 5, 37-38Google Scholar, 401-02 as jescribed in MacCormick, ibid 243.
97 H L A Hart, supra n 4, 972, 978.
98 Summers, R, “Pragmatic Instrumentalism in Twentieth Century American Legal Thought” (1981) 66 Cornell L Rev 861Google Scholar as described in MacCormick, supra n 9, 242.
99 Supra n 4, 989.
100 Finnis, J, Natural Law and Natural Rights (1980) 131Google Scholar. A distinction is drawn by Finnis
101 MacCormick, supra n 9, 245 referred to “the possibility of some hidden ambiguities in he very notion of a consequentialist argument. Everybody seems sure that some kind of conseuentialism has some part to play. But it is much less clear what kind, and what part”.
102 Ibid 256.
103 Ibid 258.
104 Ibid 251.
105 Ibid 256.
106 Ibid 255.
107 Ibid 256 (italics added).
108 TRS 22.
109 Ibid 82.
110 Ibid 22.
111 Ibid 82.
112 Greenawalt, , “Policy, Rights and Judicial Decision” (1977) 11 Ga L Rev 991.Google Scholar
113 J W Harris, supra n 11, 180 described Dworkin’s argument as the idea of “substitutabily”. See also TRS 23, 100 and MacCormick, supra n 9, 245.
114 Supra n 32, chap 6.
115 Supra n 9, 254.
116 Ibid 251.
117 Ibid 254.
118 MacCormick, ibid 249 referred to certam causal consequences as being “pressed rhetoric cally by counsel” and as giving judges “tempting motives for bending the law” but nonethelesr they are not sound justifications for making decisions and are the reasons for saying “hard easer make bad law”.
119 Supra n 3, 310.
120 Ibid.
121 Supra n 1, 448-9.
122 Ibid 441.
123 Supra n 9, 249, 250, 256.
124 Ibid 251.
125 Ibid 254.
126 Supra n 90.
127 Supra n 1, 448-9.
128 Supra n 3, 311. This is to be contrasted with the judgment of Lord Edmund-Davies in McLaughlin who said that Lord Scarman’s proposition of non-justiciability is as novel as it is startling.
129 Ibid 311. Lord Scarman was emphatic about the division between policy and principle. His Lordship said, “Policy considerations will have to be weighed; but the objective of the judges is the formulation of principle. And, if principle inexorably requires a decision which entails a degree of policy risk, the court’s function is to adjudicate according to principle, leaving policy curtailment to the judgment of Parliament”. Ibid 310.
130 Supra n 1, 442, 445, 448-451.
131 Ibid 451.
132 Supra n 9, 254.
133 Ibid 256-7. MacCormick also phrased the question in the following manner: What is it that reflection on juridical consequences via such hypothetical test cases enables us to evaluate, and how does this help us to reach fairly confident conclusions about what is or is not acceptable? Ibid 255.
134 Ibid 256.
135 Supra n 1,439. This is similar to the MacCormick standing values of tort law - respect for persons and their possessions. Ibid 256.
136 Ibid 449.
137 Supra n 9, 245.
138 Ibid 258.
139 Supra n 4, 979-81.
140 Supra n 9, 256.
141 TRS chap l (italics added).
142 Ibid 22.
143 The authors of “A Hard Look at ’Hard Cases’ “ supra n 6, 87 pointed out that Dworkin “offers an account of adjudication which has generated, or is generated by (it does not matter which), a distinctive deep theory of Jaw”.
144 Supra n 6, 108.
145 TRS 105.
146 Ibid 116.
147 Especially in the area of taxation law.
148 TRS 71 (italics added).
149 Eg TRS 32, 71.