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Summary: I. Introduction: Law’s Abstract Judgement (LAJ). II. LAJ Reviewed. III. LAJ Revised. IV. Conclusion: LAJ Recognised.
I. Introduction: Law’s Abstract Judgement (LAJ)
Elucidating and defending the abstract nature of law’s judgement is the double aim of William Lucy’s Law’s Judgement.1 It is worth mentioning that this feature of law, i.e. law’s abstract judgement (herein-after LAJ), has been either dismissed or overlooked by legal theory. What’s more for most critical authors it is morally troublesome or historically anachronistic.2 Hence, the book rectifies and redresses this wrong not only by exploring the various connections between LAJ and some of our most important legal and political values, such as dignity, equality and community, but also by showing its close relations to juristic conceptions embedded in the law, such as personhood, i.e. legal persons, and fairness, including responsibility, impartiality and equity (or even mercy). In that sense, it serves a double purpose: first, it makes a case against those who counsel liberation from LAJ; and, second, it redirects attention to the task of morally evaluating LAJ in its own terms.
In my opinion, Lucy’s contributions, in addition to providing the first book-length and pretty exhaustive analysis and defence of LAJ, are both descriptive/explicative and prescriptive/normative, since it has both explanatory/expository and justificatory aims.3 In what follows, I will commence by reviewing Lucy’s LAJ; continue by revising critically his version of LAJ; and conclude by reinforcing why I applaud and embrace Lucy’s LAJ.
II. LAJ Reviewed
The main claim that William Lucy defends right from the start and develops throughout the book is: “[L]aw’s judgement is abstract” (p. 3). For that purpose, in the introductory chapter 1, he begins by explaining his claim re how law judges us, which he identifies mainly with bourgeois (or liberal and modern) law, and by emphasizing that LAJ includes as three of its most distinctive features:
The presumptive identity component;
The uniformity component; and
The limited avoidability component.
According to (1) law -usually- sees its addresses as identical abstract beings, regarding both their capacities and entitlements, at least in a formal way; (2) law -generally speaking- judges its addresses by reference to general and objective standards equally applicable to all; and (3) law -often- includes a limited number and range of exculpatory claims that are subject to reasonableness standards (pp. 4-5). The first component refers to the nature of law’s addresses, i.e. legal persons or subjects, whereas the second and third components relate to the content of laws themselves (the former to legal standards and the later to its mitigations, i.e. rules and exceptions) (pp. 15-16). As Lucy clarifies, in stating the three components -(1), (2), and (3)- the qualifications used -‘usually’, ‘general speaking’, and ‘often’- are deliberate: “My claim is not that these three components are realised to the maximum degree across the whole of all or most current legal systems. Rather, it is that their significance in many legal systems and much legal thought is such that departures from them -which are in fact numerous- are regarded as suspicious or problematic.” (p. 5)
Lucy continues by making explicit two caveats regarding LAJ (p. 16):
It is not ubiquitous, but pretty common throughout legal doctrine; and
It oscillates from more to less abstract (and back).
And from the last caveat, i.e. “LAJ must be contrasted with less abstract (but not pure particularistic) judgment”, prefigures “another and related warning”: “It is that LAJ should not be flippantly contrasted with moral or ethical judgement. This is a mistake because there is no a priori reason why the models in play in one domain should not be similar or even exactly the same as those in another” (p. 18).
Later on Lucy responds to the question: “Why is LAJ worthy of further study?” (p. 19) Although his response is not fully unpacked until the end of the book, he advances: “My general argumentative strategy is an attempt to find value in LAJ regardless of the charges against it” (p. 25). In short, there are at least four considerations that make the study of LAJ worthwhile, each one responding to a charge against it:
It appears to be an historical anachronism, but it is “historically significant”: “Its emphasis in generality and abstraction could be seen… as generating a distinction between feudal (or medieval law), on the one hand, and bourgeois (or liberal) law, on the other”(pp. 19-20);
It “seems deeply morally counterintuitive” by suppressing particularities and differences: “[L]aw deliberately ignores much about character, context, and knowledge of those before it, so that makers of good faith mistakes and those not wilfully ignorant can often be trapped in the law’s maw” (p. 21);
It looks like “there is a great deal wrong with it” and as such is “deeply problematic” (p. 22); and,
It follows -from A, B and C- that LAJ is, therefore, unfair, morally objectionable, or suspect.
In sum, he identifies at least four different, but sometimes related, strands in the critique of LAJ:4
The grip of a significant historical transition: “it is a shift from modern law to postmodern law, from autonomous law to responsive law, or from [liberal] legal order to post-liberal legal order” (p. 22);
The suppression of “particularity and difference”, by ignoring “many of the significant features of those before it” and by articulating and informing behind an arguably genderneutrality an “objectionably valorised notions of masculinity, on the one hand, and inappropriate images of femininity, on the other” (pp. 23-24);
The problem of fairness: “although law is often a means of treating people equally, it is simultaneously and equally often a means of treating them unequally. Treating different people as if they were the same, or treating different people in exactly the same way, is in effect a form of unequal treatment” (p. 24); and
Two related forms of an intuition regarding the problem of fairness: “One holds that, keeping defendants rather than claimants in mind, it is unfair for the law to hold them to standards of behaviour which they cannot achieve… The other, related form of this intuition holds that it is unfair not to excuse goodfaith wrong doing” (p. 25).5
Lucy proceeds to tackle the methodological question of “How?” Firstly, he advances: “The approach adopted here is jurisprudential or legal-philosophical”; but with an important constraint “law’s judgement is an aspect of legal institutional design”, which refers to “both to procedural and substantive doctrines, on the one hand, and more general features of a legal system, on the other” (p. 26). Secondly, he cautions: “The temptation among many contemporary jurists and legal philosophers is to assume that answers… must entail the construction of arguments from first principles” (p. 27). Instead, he explains: “What follows avoids immediate recourse to first principles. Our examination of LAJ aims to illuminate the values, if any, immanent within this aspect of legal institutional design or, at the very least, closely related to it”. Thirdly, he clarifies “The values I examine are normative -part of our moral, ethical and legal fabric-” and “I ignore non-normative sources of support for LAJ”, and even elucidates (p. 28):
My discussion of the values immanent within and supportive of LAJ is not in any sense foundational. It is not therefore concerned, as much moral philosophy is, with the epistemological or rational basis of those values. Rather, the principal burden is to elucidate those values and their relationship not just with this aspect of legal institutional design but also with one another.
Fourthly, he makes explicit one key aspect: “One way in which we can try to ensure a close fit between our normative and explanatory accounts of an aspect of legal institutional design, on the one hand, and that aspect of legal institutional design, on the other, is by embracing the participants’ point of view as our principal methodological injunction” (p. 29).6 Lastly, he takes sides with those -like Ronald Dworkin- who think that contemporary legal philosophy does not have to be boring, but “should strive to be interesting” (p. 31, fn 79)7. He adds (p. 32):
[W]e cast our troth in with the proponents of the allegedly interesting jurisprudential project and focus upon illuminating some area of legal institutional design. The questions in this enterprise do not revolve around the existence conditions for law in general or for any conceivable legal system, but instead centre upon particular legal concepts and features of existing legal systems.
He finishes his introductory chapter one “Law’s Judgement” with a “Prospect”: “Chapter two addresses the legal person, examining the forms it takes and sketching the nature of its relation with LAJ”. “Chapter three distinguishes three charges of unfairness that LAJ often generates. One of the charges relates to legalliability responsibility, [other] raises the issue of impartiality and the third invokes the idea of equity (or mercy)” (pp. 32-33). The remaining chapters explore -as advanced- the various connections between LAJ and some of our most important legal and political values, such as “dignity” in chapter four (pp. 123-162), “equality” in chapter five (pp. 165-203), and “community” in chapter six (pp. 205-242). “The final [concluding] chapter -chapter seven- recaps the arguments of the previous chapters and reiterates the claim that LAJ is nowhere near as morally and politically problematic as critics lead us to believe” (p. 34).
Clearly, his argument implies the adoption of a broader normative perspective, which can be characterized as “immanence” and distinguished from “consistency” (or “congruence” or “coherence”)8:
“The immanence (or embeddedness or embodiment) claim is stronger than the mere consistency claim in two respects. First, because it insists that the values in play are not merely compatible with, but make normative sense of LAJ; and second, because it holds that these values are indeed manifest or constrained in that social-institutional form” (p. 246).
What’s more, he adds: “an account of the moral and political company that LAJ keeps adds to the latter’s lustre because it endorses an holistic position about value. Such a position holds that both the worth and truth of each of our values is, either in part or in full, a function of how well each fits with the rest of our values” (p. 247).
Immediately after, he refers to Dworkin -who espoused this kind of view- and quotes a couple of passages from Justice for Hedgehogs (pp. 247-248): “in political morality integration is a necessary condition of truth. We do not secure finally persuasive conceptions of our several political unless our conceptions do mesh.” And, “full value holism -the hedgehog’s faith that all values form an interlocking network, that each of our convictions about what is good or right or beautiful plays some role in supporting each of our other convictions in each of those domains of value”9. In the final chapter seven “Conclusion”, Lucy wraps his argument (pp. 243-245):
My attempt to place LAJ in a broader normative (moral-cumpolitical) perspective is intended to make some of its particular features less troubling than they might appear when viewed up close… Furthermore, this broader normative perspective prevents us viewing LAJ in isolation, helping us to see that it is not a freestanding, single ‘thing’ or discrete item but, rather, part of a more complex interconnected whole or amalgam comprising, at the least, notions of dignity, equality and community.
III. LAJ Revised
I agree almost completely with Lucy’s claims, but I fear he is being extremely cautious and tends to avoid going deeper and stops short by adopting weaker versions, instead of the stronger versions. Let me be clear, I totally agree that law’s judgement is abstract, and contains the three components described by Lucy, and so on, especially regarding the duty of the judges of fidelity to law and its purposes and values to the extent that I endorse completely the virtues of LAJ. As the reader can see I am sympathetic to the project, and will like to push it forward.
First, instead of endorsing unambiguously the claim that law’s judgment -in addition to being abstract- is objective, Lucy affirms (p. 5, fn 8):
It is tempting to say that these features show that law’s judgement is also objective and there is at least one credible sense of ‘objective’ in which this is right... However, the notion of objectivity when applied to law can have many other senses... and is undoubtedly complex. Although some significant points about law’s abstract judgement can be made using various senses of that term... this runs the risk of unnecessary complication.10
He can easily respond that his claim is merely that law’s judgement is abstract, without endorsing or neglecting that it can be objective as well. In any event, instead of saying that it is “undoubtedly complex” and “runs the risk of unnecessary complication”, I will like to advise him on the contrary: to explore not only the dichotomies abstract-concrete, general-particular and objective-subjective, but also the close interconnections between abstract-general-objective, on the one hand, and concrete-particular-subjective, on the other hand. After all, these three components, in general, and the uniformity component, i.e. “law judges its addressees by reference to general and objective standards equally applicable to all” (p. 4), in particular, are rooted in the interconnection between abstractness, generality and objectivity, which are at the core of law’s formality and even legality. Actually, in his “Abstraction and the Rule of Law”, Lucy advanced:
“That concept [i.e. the concept of the rule of law] consists of two constitutive claims: first, that the rule of law stands against arbitrary power and, second, that it consists of, at the very least, a limited number of principles, observance of which prevents lawmakers from exercising power arbitrarily.”11 Furthermore, he acknowledged that Lon L. Fuller’s and Joseph Raz’s accounts of the rule of law do not explicitly support LAJ, except implicitly through “the requirement that legal rules be general.” He added:12
As a matter of both lawyerly and ordinary common sense, generality in this context can have at least two meanings... one idea in play is that the provision in question applies to all citizens or, perhaps, to all of its addressees (these two possibilities need not be the same)... Generality here is therefore simple uniformity: the same rules bind all...
But there is another sense generality can plausibly have here... [rules] are or must be applied in the same manner. Saying this is to say more than that the same rules do or should bind all citizens (or addressees). It is to insist upon uniformity of application. This second sense of generality turns attention from the rules themselves to their enforcement and interpretation...
Simple uniformity and uniformity of application can be advanced by, and are to some extent embodied in, law’s abstract judgement. The uniformity component of law’s abstract judgement is, after all, virtually synonymous with simple uniformity. The first -presumptive identity- component ensures a degree of uniformity of application by making it very difficult for liability decisions to turn upon particularities of the disputants’ character or context...
Second, regarding Lucy’s caveats, although he announces that “LAJ is not ubiquitous”, he cannot really meant it, at least not without risking a contradiction, since he asserts “It is more deeply embedded in some areas of legal doctrine than in others. A more expansive survey would disclose areas in which it has little influence”; and, “Judged across entire legal systems, the abstract nature of LAJ is thus a matter of degree, of more or less” (p. 16). In that sense, the fact that LAJ is not as deeply embedded in all areas of legal doctrine, even if we grant that there are areas with little influence, does not disprove, but -on the contrary- proves that it is ubiquitous, i.e. present everywhere, where law is and its large or little presence, reconfirms that it is thus a matter of degree, of more or less.
Let me suggest a friendly amendment to this caveat: LAJ is ubiquitous, though more deeply embedded in some areas of legal doctrine than in others, including some in which it may appear to have little influence, and as such LAJ’s ubiquity across entire legal systems is thus a matter of degree, of more or less. Furthermore, this way of framing his caveat is consistent with the book, in general, and the other two warnings, in particular: not only LAJ oscillates from more to less abstract and back, and can be contrasted with less abstract (but not pure particularistic) judgment,13 but also has a close interconnection with moral or ethical judgement.14
Third, despite his thorough defence of LAJ, Lucy tends to adopt the weaker versions, although stronger ones are easily available to him: “I do not claim that the three components of LAJ have marked each and every legal system known to humankind. I claim only that LAJ is a more pronounced feature of liberal or bourgeois legal systems than it is of feudal legal systems” (p. 6). From my perspective, it is possible to adopt a stronger version of the LAJ claim to the extent that it is not only a pronounced feature of modern law, i.e. bourgeois or liberal, but also a prominent feature of law that has marked each and every legal system. He can again easily respond by repeating what his claim is and is not, but I will like to counsel him to the contrary. Let me be clear, I completely agree that “LAJ is a more pronounced feature of liberal or bourgeois legal systems than it is of feudal legal systems”, but it is still a prominent feature of law that has marked each and every legal system, including both feudal or medieval law and liberal or modern law. The problem seems to be that Lucy considers the former as rigid and the latter as not. In his voice (p. 20):
If the former was made up of different legal incidences tied to a variety of fairly rigid roles, one’s rights and obligations being determined by those roles, then the latter seems distinctive in its lack of such rigidity and because all addressees of the law are legally formally equal. Law’s abstract judgement in part embodies the latter idea and this could possibly be regarded as a constitutive characteristic of bourgeois law.
...There was no genuine sense in which all addressees of the law were regarded as the same before it; nor were addressees of the law always bound by the same laws. The law recognized a number of different legal statuses and these determines one´s legal rights and duties, liabilities and immunities, in a fairly rigid way.
Certainly, in the feudal or medieval law there were different categories of legal addressees and the different legal statuses determined one’s rights and obligations, whereas prima facie in the liberal or modern law all legal addressees were placed in the same (or similar) broad category and so had the same (or similar) bundle of rights and obligations.15 Let me suggest that LAJ is independent not only of the rigidity or not of the categories but also of the multiplicity or not of legal addressees, since the abstractness is and will be present within each category regardless of being broadly or narrowly construed. Is this consistent with Lucy’s position? And more importantly, is this true? I believe it does.
Bear in mind that in chapter two “Law’s Persons”, Lucy begins by clarifying “the legal person is not necessarily a natural person... Corporations are not natural persons -the kind of physically embodied human beings by which we are surrounded- yet they are certainly legal persons” (p. 35). Continues by distinguishing at least two in- stances of legal persontalk: “One encompasses what can be called ‘the person as presupposition’ (PaP), while the other is ‘the person as consequence’” (PaC) (p. 37)16. Accordingly, the legal person is understood not only “as the precondition of legal regulation” (p. 39) (or the “common point of imputation” in Kelsenian terms) but also “as a consequence of legal doctrine [that] can yield numerous apparently quite different persons” (p. 52) (or “an artificial construction of jurisprudence” / “a construction of legal science” in Kelsenian terms)17. Finally, he concludes: “‘the’ legal person is multiform and not identical with natural persons” (p. 53). In that sense, a “legal person” is a construction that does not correspond necessarily to a “natural person” (or a “human being” in Kelsenian terms), since legal systems do not grant necessarily “personhood” (or “personality” in Kelsenian terms) to all natural persons and even recognize non-natural persons as legal persons.18 In Hans Kelsen’s words:19
It is said, too, that the human being has “personality”, that the legal order invests man with personality -and not necessarily all men. Slaves are not “persons,” they have no legal personality. Traditional theory does not deny that “person” and “human being” are two different concepts, though it asserts that according to modern law, as distinguished to ancient law, all men are persons or have personality.
It is worth noting that the legal person comprehends not only the broader category of PaP and different narrower categories of PaC, including both natural and non-natural persons, but also that the abstractness is and will be present within each category, with their respective set of rights and duties.20 The fact that the category of legal persons has been extended from very few more or less rigid categories in ancient law21 to several rigid categories in medieval law22 to the not so rigid category of all -or almost all- legal addressees in modern law reinforces in my point of view that LAJ is independent both of the multiplicity or not and the rigidity or not of the categories.
What’s more, the fact that nowadays boys and girls, citizens and foreigners, disabled and not-disabled, heterosexual and homosexual, men and women, poor and rich, religious and not religious, and so on, can fit into the same abstract and broad category of human beings does not mean that they are completely identical nor that there are any differences among them. Let me insist that abstractness -and even generality- should not be confounded with equality, as Lucy himself argues, by exploring the connection between LAJ and “equality” (pp. 165-203), and even seems to recognize, as George Orwell puts it: “All animals are equal, but some animals are more equal than others.”23
Fourth, there are a couple of minor points, in which I prefer an alternative approach (or some other stipulations) and somehow a different conclusion. On the one hand, at first I was intrigued by Lucy’s use of the term “impartiality” (pp. 96-110), which in some contexts seemed to me to refer to “neutrality”. Then, I noticed -by revising the essay24 from which that section draws upon- that Lucy conceded not only that “impartiality is often taken to be synonymous with the idea of neutrality” but also that “efforts to distinguish them appear merely stipulative, inventing a distinction not actually here.”25
Personally, I believe that complete neutrality is impossible in social sciences, in general, and in the law, in particular. It is neither possible nor desirable. The law is not neutral, it has purposes and values, and the legal officials cannot remain neutral by taking no position, they have to act upon and take some position, as Lucy points out: “Yet, although adjudication rarely, if ever, extends its judgement to every aspect of the disputants’ conduct and character, it always invokes (when done legitimately, at least) the law values. And the judicial duty of fidelity to law must include, if recourse to purposes and values is unavoidable in rule application and interpretation, fidelity to those purposes and values” (p. 100).26 (I will return to the discussion on fidelity to law in section IV. Conclusion: LAJ Recognised.)
On the contrary, I consider that impartiality at least in the application and interpretation of law is not only desirable and posible but also necessary.27 Since the law is not neutral and the legal officials cannot remain neutral, it is necessary not only to guarantee “a minimal requirement of impartiality in the context of legal disputes, namely, an attitude of openness to and lack of prejudgement upon the claims of the disputants” (p. 97)28 but also to audi alteram partem, i.e. listen to the other party or side, in order to take a position on the dispute and not on the disputants, and much less to have an already biased, prejudiced or preestablished position on either the dispute or the disputants, as Lucy puts it (p. 106)29:
Judgment must be based on the law and not some assessment, unless it is part and parcel of the law, of one or other of the disputants’ moral or social status or virtue. Why? To ensure that disputants are treated in the same way regardless of their character or worth, their moral status, lifestyle or gender, ethnicity or religion. Judgement according to the law therefore treats disputants impartially, not in the sense of taking no position on the rights and wrongs on the dispute, but in the sense of taking no position on the rights and wrongs of their character, commitments, moral standing, etc., except insofar as such considerations are relevant to the interpretation or application of the relevant law.
On the other hand, Lucy affirms at the beginning of the book “Law’s judgement is supposedly blind to these differences, treating Duke and pauper, man and woman, Christian and non-Christian, homosexual and heterosexual, aesthete and philistine alike” (p. 8); later on, he reiterates “The law and the courts are supposedly blind to differences in status and needs, treating both mighty and lowly in exactly the same way” (p. 99). And in his conclusion he asserts (p. 243):
The abiding motif of the various arguments presented in previous chapters is that law’s abstract judgement (LAJ) ignores much. What it ignores, and the ways in which it does so, is not, however, well captured in the traditional image of Justitia. That image most often tells us that the law has no gaze, for Justitia does not see: law and justice are blind. But they are patently not. When we stand before the law, facing its judgement, the law’s agents assuredly do see: they register all of those aspects of ourselves and our conduct made relevant by the law, both at conviction and liability stages, and at sentencing and remedy stages. The law sees, yet it almost never attempts to view us in all our detail and context, being satisfied only with glimpses of the real nature, character, experience and milieu of those it judges. This is not to suggest that the law’s agents -judges, magistrates, police officers, wardens and the like- deny the humanity and particularity of those with whom they interact. Yet they must often ignore aspects of that doublesided truth, setting aside or placing out of view many of the specificities of those before them.
Let me recall that the traditional image of Justitia is depicted by a goddess, Astrea, for the Greeks, and Themis, for the Romans, who is not blind but blindfolded, i.e. it is no that she does not see, but that she is not expected to see. Therefore, I am confident, on the contrary, that the traditional image of the blindfolded goddess Justitia does capture why LAJ ignores much and has to ignore much.
Last but not least, fifth, one of the many contributions of the book -as I’ve already said- consists in providing the first book-length pretty exhaustive analysis and defence of LAJ, and its connection not only with our most important legal and political values, such as dignity, equality and community, but also with some juristic conceptions embedded in the law, such as personhood, i.e. legal persons, and fairness, including responsibility, impartiality and equity (or even mercy).
Anyway, I have to confess that at some point I was speculating what about the connection of LAJ with liberty (and its many facets as autonomy, freedom, free will and even responsibility).30 However, I was surprised that though it was not developed explicitly, it was found throughout the book in most of the discussions, but especially in two: 1) on the rationalist legal person (and PaP) and its rationality (pp. 63-67); and, 2) on liability-responsibility (pp. 81-82), and its three conditions: capacity (pp. 87-89), intentionality (pp. 82-85), and rationality (pp. 85-86).
On one side, after delineating three conceptions of rationality, from the “more demanding” to the “less demanding” and then to the “even less demanding”, Lucy affirms (p. 64): “To be an addressee of the law here, to be ‘responseable’, is to have the general capacity both to recognise reasons and have reasons as the basis for one’s beliefs and conduct”. On the other, after demarcating three conditions of liability-responsibility, Lucy cites Fuller at length (p. 90), but let me emphasis the relevant portions: “To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults”. “Every departure from the principles of the law’s inner morality [or legality] is and affront to man’s dignity as a responsible agent”31. Furthermore, Lucy clarifies (p. 91):
Yet law traditionally does buildin a good deal of room for such choice because it normally attempts to engage with the practical reasoning of its addressees. It sets and communicates requirements to its addressees, but it is possible for its addressees to ignore these, to make and act upon other choices, albeit at the risk of sanction or other legal consequence. By building in room for choice, the law treats its addressees as (in Fuller’s term) responsible beings, with (in Fuller’s terms) dignity. In allowing the possibility of choice contrary to its guidance, law also respects freedom. This is freedom to act other than law requires, but it is no less a form of freedom for all that.
I found these discussions very illuminating and consistent with the revision of the classic literature done by Friedrich A. Hayek, who attributed to Marcus Tullius Cicero the most effective formulations of freedom under the law:32
The conception of general rules -leges legum;
The conception of obedience to law in order to be and remain free -omnes legum servi summus ut liberi esse possimus; and
The conception of the judge as a law with voice and of the law as a voiceless judge -Magistratum legem esse loquentum, legem autem mutum magistratum.
IV. Conclusion: LAJ Recognised
To conclude let me clarify that I not only applaud Lucy’s pretty exhaustive analysis and defence of LAJ but also embrace it because he has the merit of “standing on the shoulders of giants”,33 in general, and Dworkin and Fuller, in particular. On the one hand, in addition for adopting a form of “moral reading”, for his sympathetic but yet critical discussion of Dworkin’s conceptions of “dignity” (via Immanuel Kant) (p. 149),34 of “equality” as “(the right to) equal concern and respect” (pp. 192-200)35, and of “community” (or even “fraternity”) as “community of principle” (pp. 230-241)36.
On the other hand, for his references to Fuller and the acknowledgment that the judicial duty of fidelity to law, i.e. to follow and apply the existing law, not to create new law, includes and must include fidelity to law’s purposes and values, which I have characterized - following Fuller- as an “intelligent fidelity” in contraposition to a “unintelligent fidelity”37. In Lucy’s words (pp. 100-101):38
But, as soon as it is conceded that the law is a purposive institution, it becomes unavoidably normative: law in general and the law of particular jurisdictions consists not only of a collection of standards, requirements or prohibitions, but also of a range of purposes that animate them... what we expect of good judges deciding hard cases is judgement, where what is meant is not simply a resolution of the dispute, but a discerning assessment of what the law and its underpinning purposes or values require in the particular case.
Certainly, in hard cases, factual or fictional, such as the Elmer’s case,39 the Ida White’s -or the vanished legacy- case,40 the Speluncean explorers’ case,41 and even the “No dogs (in the airport/railway station/subway)” rule42 or the “No vehicles in the park” rule,43 the fidelity to law and to its purposes or values necessitates LAJ. It will guide the judge in doing a virtuous judgement from the abstract to the concrete and back of what the law and its purposes or values truly need not only in most cases but also in exceptional ones that cry for a mitigation of the rigidities of the written law. In sum, I endorse Lucy’s LAJ and will like to push the argument even further.
