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exercise its discretion to waive the time-limit for a particular
claim.1 The question in the appeal was whether the Board was
under a duty to give reasons for its decision. Its functions could
be classified as administrative or quasi-judicial. The judge
decided that the particular function to which the discretion
was attached fell into the quasi-judicial category.
That being so, the Board became subject to the duty, as a
matter of fairness and natural justice to state reasons for its
decision. It had to establish that it had applied proper criteria
in its judgement not to exercise its discretion. The judge equated
the circumstances here with those in a case where there was an
express statutory obligation to give reasons but the reasons
actually given were unintelligible. He cited the judge s obser-
vations in the latter case:
If the reasons are so stated as to be unintelligible, the
parties cannot tell whether the decision has been reached
according to law. The evils are the same as if no reasons
have been given when the statute requires that they should
be given, and the defect in the expression of the reasons
is as much an error of law as would be a failure to give
them.
(2) In the second case, an appeal court ordered a re-hearing in
the absence of any statement of the reasons for a magistrate s
decision.2 Even though magistrates were not required to state
reasons when refusing an application to vary a maintenance
order, any appeal from their decision could only be determined
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CONCLUSI ONS
by reference to the reasoning behind the decision. In the absence
of reasons, the case had to be re-heard.
Understanding the law and the reasons
Besides or indeed rather than the appeal court, everyone within the
jurisdiction of judicial decision-making bodies makes up the audience
to whom the reasons are addressed. Perhaps the right way to portray
the relationship is that the appeal court receives the decision and
the statement of the reasoning of the lower-tier body as a representa-
tive of the people. The emphasis on reasons assumes that the
commonsense of the people as addressees, direct or indirect, not
only demands reasons but also provides the capacity to understand
the reasoning. Commonsense here is nothing other than the shared
sense of fairness and natural justice which, according to the judge
in the first case, called for reasons to be stated. Understand cor-
responds to something less than the meaning of persuasion in the
theory of classical rhetoric or accession in New Rhetoric or agree-
ment in the case of a subject confronted by political or religious
coercion. And to something more than comprehend as well. When
Habermas says that addressees of legal norms must understand
themselves as their rational authors, 3 he has the same conception of
understanding in mind. A similar sense is encapsulated in the legal
term consensus ad idem , which describes the intersubjective meeting
of minds constituting the basic condition of a legal contract.
Comprehension, however, although insufficient in itself, seems
to be a necessary step on the way to the consensus in question.
Once that point is accepted, the language problem asserts itself.
Because of the barrier thrown up by the special features of legal
language, the legal text, including the reasons , are open to condem-
nation as incomprehensible by the citizens. Not only that, but their
sense of natural justice conveys to them that they are intended to
be at least the real addressees of the law, even if they do not perceive
themselves as its rational authors . It was to the children of Israel
that Moses, their representative, presented the tablets of the law.
The sense of violation, of usurpation, is aggravated by the frustration
that the language of the legal text is irritatingly just out of reach.
Another stratum, a cognitive overburden, has been superimposed.
The question then emerges in its sharpest form: how can the people
understand themselves as the rational authors of the law when they
cannot understand the legal text?
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CONCLUSI ONS
Application
From this point of view alone, that is, in not directly addressing
this irksome question, Habermas s work does not live up to the
promise of its subtitle: contributions to a discourse theory of law
and democracy. Although, of course, as brought out in the Intro-
duction, discourse for Habermas is a term of sociological or
sociopsychological import, equivalent to communicative action,
and does not have the close linguistic connection that it has with
Foucault. Dworkin s compendium of his work subtitled: the moral
reading of the American constitution similarly stops short. Certainly
its approach to law is hermeneutic. It lays down a theory of
interpretation and elaborates on how the theory works in practice.
This ought to throw light on the quest to discover the nature and
operation of the distinctive features of the language of legal texts.
But, as already pointed out, Dworkin s discourse (in Foucault s
sense) does not display the characteristics of legal language.
Dworkin s customary language draws on what is recognisably a
philosophical discourse. Moreover, it fits not only his approach
based on the moral reading, but also the task he sets himself to
take rights seriously. This is none other than to articulate the law
in terms of rights grounded on moral principles drawn in turn
from the words of the Constitution. The legal system, in the sense
of the body of laws, materialises rather around more complex
constellations of facts. Dworkin comes close to endorsing a
description of those adjudications, inevitably the majority, in which
the moral reading has no place, as technical exercises in an arcane
and conceptual craft .4 Thus, his theory divides off constitutional
issues from other legal issues. Hence, his focus on rights modelled
on areas of individual freedom, hence also his promotion of moral
over conceptual arguments,5 while at the same time he appears to
nod, to slur over the distinction, when justifying the use of philo-
sophical discourse in legal writing:
[The] proper business [of legal doctrine] forces it to use the
concepts of will, intention, meaning, responsibility, justice,
and other ideas that are frequent sources of philosophical
complexity and confusion.6
So we find that Dworkin draws on philosophical rather than legal
discourse. As a direct effect, he misses the distinction between an
argument which justifies the validity of the legal norm and one which
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CONCLUSI ONS
validates its application in a particular case. This, in turn, is respon-
sible, I think, for the argument in his recent collection that the moral
reading, otherwise his special hermeneutic approach, that is,
interpretation rather than application, is the key that unlocks the
right answer in adjudication. We saw before that this deprives him
of armament to cope with cases where rights or principles collide.
Judges are directed to find the best (my italics) conception of consti-
tutional moral principles & that fits the broad story of America s
historical record .7 Later in this chapter, alternative criteria are
proposed which have the advantage over Dworkin s formula that
they fit an application argument instead of an argument in justifi-
cation of a norm.
The next step, however, is to explore what Habermas, following
Gunther, derives from the shift of emphasis to application. Legal
norms consist of principles and rules. The distinguishing feature of
rules for example, The park will close between June and September
at 8.00pm each day is that they specify the conditions and
situations in which they apply. Principles are, on the other hand,
indeterminate in reference to their application conditions. A legal
norm in the form of a principle presents itself as prima facie valid
but does not by itself determine whether it is the applicable norm in
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