NEGOCIACIÓN COLECTIVA EN LA LEGISLACIÓN CHILENA
6. LA HUELGA Y EL CIERRE TEMPORAL DE EMPRESA (LOCKOUT)
6.12. L OS ARTÍCULOS 381 Y 382.
In his 2006 Maccabean Lecture,97 Lord Bingham said that the traditional view of
judging, which he said was only partly true, was that judges should not be motivated by ‘extraneous considerations’.98 If they were, this would be
incompatible with impartial decision-making. These extraneous considerations may be the ‘prejudice or predilection of the judge, or, worse, any personal agenda of the judge, whether conservative, liberal, feminist, libertarian, or whatever’.99
The traditional view of judging saw judicial decision-making as being narrowly concerned with deducing outcomes from legal logic.100 This view therefore holds
that judges do not make law, but only declare it.101
Lord Bingham argued that modern judges reject this interpretation of the role of the judge. He said most judges acknowledge that ‘judges do make law, and regards it as an entirely proper judicial function, provided it is exercised within certain limits’.102 Most judges are said to subscribe to this understanding of the
judicial role because ‘the [traditional] approach is radically inconsistent with the subjective experience of judges’.103 They know, he said:
‘That the cases which come before them do not in the main turn on sections of statutes which are clear and unambiguous … they know, and the higher the Court the more right they are, that decisions involve issues of policy’.104
97 Available from www.law.cf.ac.uk/newsandevents/transcripts/271005.pdf <accessed 8
November 2015>.
98 ibid, 28. 99 ibid. 100 ibid, 44.
101 See T Bingham, The Business of Judging: Selected Essays and Speeches (Oxford University
Press 2000) 25.
102 ibid, 27. 103 ibid, 28. 104 ibid, 28.
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Thus, according to Bingham, judges accept that in cases which reach court there will be arguments of some strength available to both sides. If there were not arguments available to both sides the litigation would never happen, as one side would concede, or settle, or not commence proceedings. The fact that access to the senior judiciary often requires some kind of permission process, where another judge or body determines whether there is legal merit, further demonstrates that there will usually be arguments on both sides.105
Lord Bingham argued that judicial discretion appears when the application of the law does not determine the issue, and so the resolution of the case ‘depends upon the individual judge’s assessment of what is fair and just to do in the individual case’.106 Judges have no discretion when determining issues of fact or
of law, but when having made such findings he or she has to choose between different courses of action, for instance, to allow or to dismiss an appeal against conviction, a discretion is exercised.107
The exercise or presence of discretion can appear ‘slightly deviant.’108 Discretion
is troubling for the criminal justice system because it potentially allows its agents to ‘engage in discriminatory activities and to subvert policies they do not agree with’.109 In the Court of Appeal, this might include, for instance, judges orientated
towards crime control quashing fewer convictions; or more liberal judges quashing more convictions. As Wendel says, ‘principles of judicial impartiality must take a position on the existence of judicial discretion and the problem of legal interpretation’.110 Both Hart and Dworkin sought to explain how judicial
preferences are excluded from the decision-making processes in their
105 This is seen in the ‘leave’ process to the Court of Appeal; the referral process of the CCRC;
and ‘admissibility’ process of the European Court of Human Rights, and so on.
106 Bingham (n 101 above) 36. 107 ibid.
108 DJ Galligan, Discretionary Powers: A Legal Study of Official Discretion (Clarendon 1990) 1. 109 L Gelsthorpe and N Padfield (eds) Exercising Discretion: Decision-making in the Criminal
Justice System and Beyond (Willian Publishing 2003) 2.
110 WB Wendel ‘Impartiality in Judicial Ethics: A Jurisprudential Analysis’ (2012) 22 Notre Dame
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theories.111 Their theories regarding the nature of law placed some importance
on adjudication and how judges decide what the law is, or what it ought to be.
Hart sought to limit the possibility of judicial discretion by arguing that law is a rule governed system, and the outcomes of litigation or disputes will usually be determined by following precedent or statutes.112 However, Hart, like Dworkin,
was not a ‘positivistic formalist’113 who believed in mechanical decision-making.
He argued that at times judicial decision-making requires the exercise of discretion when cases fall within the ‘open-texture’ of the rule.114 Hart argued
that there are many ‘clear cases’ where general expressions are clearly applicable, such as a motor-car is clearly a vehicle.115 If a question was raised as
to whether a car was permitted to enter a park which stated that there are ‘no vehicles allowed’, the judge would have no discretion, because a car is clearly a vehicle. However, it would be more difficult to decide whether an electric toy car is also a vehicle under such a rule. If a dispute arose as to whether this was a vehicle, ‘we confront the issues at stake and can then settle the question by choosing between the competing interests in the way which best satisfies us’.116
Such a case would be a hard case, and the decision-maker would have to make a choice, or exercise discretion or judgment, and the judge’s answer would be legislative in nature, to the extent that once the decision is made there would then be governing precedent constituting a new rule.
According to Hart, this discretion exists only at the limits, or the ‘penumbra’, of the rule. It is only when the law ‘runs out’ that it is possible that partiality could occur as it is only here where judges exercise discretion.117 For Hart, this
‘penumbra’ is small and is a natural consequence of the nature of language and
111 See O Raban, Modern Legal Theory and Judicial Impartiality (Glasshouse Press 2003) 2. 112 What Hart meant by a ‘rule’, and how they are identified by the ‘rule of recognition’, is not
relevant to the present discussion.
113 See GR Carrio ‘Professor Dworkin’s Views on Legal Positivism’ (1980) 55 Ind L J 209, 221. 114 HLA Hart, The Concept of Law, (3rd ed, Oxford University Press 2012).
115 ibid, 129. 116 ibid. 117 ibid, 130.
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the way that society develops. New scenarios may arise which were never considered by Parliament at the time they enacted a rule.
Hart’s theory of law as being characterised by rules which are largely determinate can be disputed by challenging the size of the ‘penumbra’. Hart could be wrong to say that judicial discretion exists only at the limits of legal rules. It may instead infect the whole of the law. This is the view of some adherents of Critical Legal Studies, such as Duncan Kennedy who argued that many of the decisions (primarily American) judges reach are ideological in nature.118 The Legal Realist
position is similar. American Legal Realism is important to this thesis, and evaluated further in Chapter 3.
In Taking Rights Seriously, Ronald Dworkin sought to explain how judicial preferences are excluded from the decision-making process by denying that judges exercise strong discretion.119 Instead, even in hard cases, one party will
have a right to win, and the judges have a duty to ‘discover what the rights of the parties are, not to invent new rights retrospectively’.120 Judges do this because it
is not only legal rules, but also principles which provide citizens with legal rights. Principles, according to Dworkin, are standards to be observed as a ‘requirement of justice, or fairness or some other dimension of morality’.121 As noted above,
Dworkin was in some ways a formalist, as he believed that judges do not exercise strong discretion. However, he did not believe that law was mechanical or rule governed. Rather, the position of the judge was central, and the judges’ duty is to discover the answer to a legal question by constructing a theory which best fits and justifies the law.
118 D Kennedy, A Critique of Adjudication: fin de siècle (Harvard University Press 1997). 119 R Dworkin, Taking Rights Seriously (Duckworth & Co 1977).
120 ibid, 81. 121 ibid, 22.
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To demonstrate this, Dworkin invented judge Hercules: ‘a lawyer of superhuman skill, learning, patience and acumen’.122 His purpose was to demonstrate how a
judge would determine what legal principles require in hard cases. Dworkin said that Hercules would ‘construct these theories in the same manner as a philosophical referee would construct the character of a game’.123 In a hard case
where rules or principles point in different directions, ‘Hercules must turn to the remaining constitutional rules and settled practices under these rules to see which of these two theories provides a smoother fit with the constitutional scheme as a whole’.124 Dworkin acknowledged ‘many of Hercules’s decisions about legal
rights depend upon judgments of political theory that might be made differently by different judges or the public at large’.125 Unlike Hart, who argued that law can
run out due to the open-texture of rules, Dworkin believed that principles also formed part of the law, and these cannot run out.
Dworkin argued that there is no room for partiality in his theory because the determination of which principles apply is not the judge’s own personal convictions, and must not be based upon policy, but must be based upon his or her attempt to determine what the law requires. This cannot be attributed to Hercules’s personal convictions, but to his attempt to determine what the community’s constitutional and political morality is and its fit with the legal rules.126
Decision-making is therefore not based on policy, but on judges determining principles. In Law’s Empire,127Dworkin explains his proposition of ‘law as
integrity’. Dworkin argued that a judge determines a hard case by deciding which outcome ‘follows from the best interpretation of what judges characteristically do about statutes’.128 According to Dworkin, there will be one right answer to this
question. 122 ibid, 105. 123 ibid. 124 ibid, 106. 125 ibid, 123. 126 ibid, 126
127 R Dworkin, Law’s Empire (Harvard University Press 1986) 253. 128 ibid, 87.
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Law as integrity requires a judge deciding a hard case to think of himself as an ‘author in the chain of common-law’.129 Judges in earlier cases may not have
answered the exact same question as him, but earlier judges will have left precedent which orbit the question in his case. He must then use his own judgment to make the story (the law) as good as it can be as a cohesive whole.130
Since the judge is required to interpret the law in the manner of a chain novelist, eventually the wealth of legal materials will become so great that there is only one right legal answer available.
The proposition that there is one right answer to every novel legal question is attractive because it means that partiality is impossible. Dworkin explains that the judge trying to reach the right answer which fits and presents law in its best light, will need to draw upon his or her own conceptions of justice and political morality.131 If these conceptions are ‘right’ then he or she will reach the right
answer as to what decision should be reached. The difficulty is that Dworkin permits judges to use their own conceptions of justice and morality if it produces the ‘correct’ answer. Indeed, the decision-making process is a political exercise, with which other judges or citizens may disagree.132 This does not appear
satisfactory, because, as Raban stated, ‘who cares that these personal opinions are somehow “correct” if we all hold contradictory views?’133
For Dworkin, the question is not whether the right answer is the result of the personal opinions of judges, as Dworkin accepts they are, but whether that opinion is right.134 But, as Posner argued, ‘interesting’ moral claims beyond
tautological ones such as ‘killing is wrong’ are always local, in that they are ‘relative to the moral code of the particular culture’.135 There may therefore be no
129 ibid, 238-9. 130 ibid, 239.
131 Dworkin, Law’s Empire (Harvard University Press 1986) 239. See also Dworkin Taking Rights
Seriously (Duckworth & Co, 1977) 127.
132 Dworkin, Taking Rights Seriously (n 131) 126-8.
133 See O Raban, Modern Legal Theory and Judicial Impartiality (Glasshouse Press 2003) 82. 134 ibid, 80.
135 RA Posner, ‘The Problematics of Moral and Legal Theory’ (1998) (111) (7) Harv L Rev 1637,
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‘correct’ conceptions of political morality. If there are no correct answers, Dworkin’s thesis says little about the desirability of impartial decision-making but appears to invite judges to decide cases based on their personal predilections.
Hart’s and Dworkin’s theories concern the extent of legislative discretion available to judges in hard cases. It may be observed that Lord Bingham’s opinion on how judges decide cases may be compatible with Hart’s, in that he acknowledges hard judicial discretion. Dworkin sought to argue that judges do not exercise discretion in this sense, as the law (broadly defined to also include principles) was determinate. It is clear, however, that Dworkin in no way proposed a theory of legal formalism in which it is legal rules which were determinate. As will be discussed in Chapter 3, the American Legal Realists also explored the level of discretion available to judges. In Chapter 4, the ‘unsafety test’ will be analysed in order to explore the level of discretion judges in the Court of Appeal have. The ‘unsafety test’ appears a particularly open-textured concept, which invites discretion. However, closer analysis shows that the discretion in the operation of the test is constrained by rules. In Chapter 8 is it discussed whether any of these theories of judicial decision-making appear to be well reflected in the sample of appeals studied in this thesis.