Discretion and Rights*

NEIL MACCORMICK

DISCRETION AND RIGHTS*

The first aim of this paper is to propose an analysis of one, perhaps central, distinction between legal provisions which confer rights and legal provisions which confer merely discretionary benefits. The second is to see whether this distinction may not cast new light on a number of disputed points in contemporary legal theory, while at the same time sharpening awareness of contrasting elements of legal technique. The contrast upon which attention will be focussed appears to have been of great importance historically, yet perhaps to have been obscured in recent debates.

1. CONTRASTING CASES: A PREANALYTICAL SUGGESTION

Successful pursuit of the first appointed aim requires the identification of some legal topic in which different legal systems in broadly similar settings provide contrasting solutions to substantially the same prob-

* The ideas here stated first took shape at a W. G. Hart Workshop in the Institute for Advanced Legal Studies in London in July 1987 organised by Donald Harris, then became a paper for the Yale Law School's jurisprudence seminar organised by Owen Fiss and Jules Coleman (March 1988), continued under further revision to Risto Hilpinen's conference on rights in the University of Miami at Coral Gables, then became the analytical part of an 'Or 'Emet lecture at Osgoode Hall Law School, Ontario. I received much help from all those named, and from others besides, notably Rob Baldwin, Bruce Ackerman, Joseph Raz, Roberto Vernengo, Leslie Green and Wil Waluchow.

Footnotes seemed to me unnecessary in the text, but further reference to the following would be of value to the interested reader: M. C. Meston Succession - Rights or Discretion (1987JurRev 1-11 at p. 7), and the first few sections of the (English) Inheritance (Provisionfor Family and Dependents) Act 1975; George C. Christie's An Essay on Discretion Duke LawJournal, 1986, 747-78; and to Ronald Dworkin, Taking Rights Seriously (1978) pp. 31-2. Also David Hume, Essays, Moral Political and Literary.

Law and Philosophy 8: 23-36, 1989. ~) 1989 Kluwer Academic Publishers. Printed in the Netkerlands. 24 Nell MacCormick lem. A useful such topic is that of family provision in the law of succession. The question is: if a person dies survived by children and a spouse, does the law entitle these survivors to any share in the deceased's estate, or is it entirely for the deceased to decide what testamentary provisions to make, or is there some intermediate possibility (for simplicity, the case of intestate succession is ignored here)? Three jurisdictions might give very different answers, as in fact do Scotland, England and Connecticut (which I understand to resemble in this most of the states of the U.S.A. except Louisiana, where, as in Scotland, civilian principles prevail). In Scots law, surviving children enjoy what are known in the standard speech of Scots lawyers as "legal rights" over one-third of the deceased's moveable estate and the surviving spouse has rights over a further third; only the balance, the "dead's part", is subject to freedom of testation. In English Law the provisions of any valid will left by the deceased govern the distribution of the whole estate; but a spouse or child or other dependant or family member may apply to the High Court with the complaint that the deceased's will does not make reasonable provision for him/her. The court, if satisfied by the applicant that reasonable provision has not been made, may make an order such as will secure what it deems reasonable provision, taking account of an extensive list of statutory factors bearing on the question. In Connecticut no such arrangements of any sort exist in favour of children; they may be wholly disinherited, without any recourse to any judicial remedy; but the surviving spouse has rights which pro tanto defeat the will. As was mentioned, it is a long established legal usage in Scotland to refer by the term "legal rights" to the entitlements of a deceased's children to their shares of the moveable estate. The precision and firmness of the provision in favour of children makes such a usage unsurprising. For any one of n children, that person has a right to one n th of one-third of the free moveable estate, after payment of all prior charges against the estate - i.e., to a 1/3n share thereof. This is a strong entitlement in that it is immune from divesting by the testator or anyone else, and is not dependent on the discretion of any judge or court. A law which allots a fixed share of a determinate or deter- ruinable fund to be paid to each member of a certain class with no possibility of change by anyone else's choice, does seem, at least by the Discretion and Rights 25 test of my linguistic intuition, obviously to give each member of the class a "right" to that share. This could well be taken to be a paradigm case of"having a right". The English statute, by contrast, uses what might be considered an equally paradigmatic case of the technique of judicial discretion in direct preference to that of a conferral of rights. The deceased person's children have not a right but a privilege and power to apply to the court. The court has a duty, upon receiving such an application, to satisfy itself whether or not, having regard to the statutory indicators (set out in section 3 of the Act), "reasonable provision" has or has not been made for the applicant; if the court is satisfied that reasonable provision has not been made, then it has power to make such award as it deems sufficient to make good the want of reasonable provision. This doubtless presupposes some idea that the children or dependents of a deceased person may, in given cases, have some form of moral entitlement to some provision from the deceased's estate. The presup- position is there may be something which it would have been morally right and reasonable for people to have received by the will of the deceased. But the legal remedy devised by English law for correcting a breach of such entitlement, or for bringing about the morally right and reasonable outcome, is a discretionary one. No specific legal right is contrived to match or protect the moral entitlement or even "moral right" in the background; the technique used here is rather that of a discretionary power granted to a judge whereby, if satisfied by a relevant application, he can confer a right such as meets the needs of the case; but the law does not from the start grant any right to persons in general to shares in the estates of their parents. By final contrast, the Connecticut provisions, though they give spouses rights, give children nothing, and in neither case give the court any discretion in anyone's favour or disfavour. It is perhaps a question whether we should then say that there is a legal discretion vested in every owner of property to leave or not leave property to his or her children (if any). I'm inclined not to say so. Morally speaking, it is in a person's discretion to will or not will property to a child - but in law, this is simply an unfettered legal power of testamentary dis- position, not a discretion at all; for nothing is made to be dependent upon the quality of judgement exercised by the testator. Issues of sanity apart, the law raises no question as to the rationality or pro- 26 Neil MacCormick priety of the judgement that led the testator to disinherit the family; testators can make their decisions as arbitrarily as you please, and yet these decisions will be sufficient to be legally dispositive provided only that they have been unequivocally made. That the three cases chosen stand in sharp mutual contrast is surely indubitable; nor does it seem too far out to classify the cases respectively as a case of rights, a case of discretion, and a case of no right and no discretion (I do not follow Hohfeld into a hyphenation of the negatives). The contrast can perhaps usefully be pointed up this way: the Scots law ascribes to the deceased's child a certain benefit that the child shall have at law regardless of anyone's opinion as to whether or not that is what any particular child ought to have. Therefore, if any child should be denied this and make complaint over it, the duty of officials is to secure it for her or him. The English law does not ascribe to the child anything to be held or enjoyed without regard to a prior judgement of what that particular child ought to have. Only on the basis of an official's judgement of what this specific person ought to have been given by the deceased is the child legally entitled to anything, and then the entitlement is to a judgement-dependent share, that which is deemed "reasonable". The Connecticut law ascribes no compulsory share to the child, nor does it provide any remedy or entitlement contingently on anyone's judgement of what a given child ought to be or have been given. The absence of right or remedy here is judgement-independent, just as their presence in Scots law is judgement-independent. The first questions posed by this paper are, then, whether the contrast is clearly and intelligibly drawn; and whether there is anything to be said for the preanalytical opinion here stated according to which the three are paradigm cases respectively of right, discretion, and no right, where discretion is the contradictory of right, and no right its contrary. One person's linguistic intuition may after all be another person's implausible pedantry.

2. JUSTIFYING THE CONTRAST: AN ANALYTICAL SUGGESTION The aforementioned preanalytical contrast (or allegedly preanalytical contrast) has already been sketched out in such a way as to lay some of Discretion and Rights 27 the ground for elucidating the analytical distinction to be proposed. The key point is that about the difference between judgement-dependent and judgement-independent aspects of the contrasted cases. Any legal provision can be constructed or reconstructed in the form of a conditional sentence according to which if a certain state of affairs (certain "operative facts") obtains, then a certain consequence is to follow normatively. To put this summarily: "if operative facts f, then normative consequences c', "if f then c". More ambitiously and revealingly, this can be cast in the forms of predicate logic, but that is a refinement which need not be pursued here. The distinction offered as between discretionary and nondiscre- tionary legal provisions focuses on the facts which the law treats as operative for a given (legal) normative consequence. Sometimes that for which the law stipulates is the simple occurrence of acts, events, or states of affairs as these may obtain independently of any person's judgement about them. Take, for example, this state of affairs: a is a child of b and one of n children of b's, and b is possessed of moveable estate m and the event e, b's death, occurs. This is a complex of states and events which can obtain independently of anyone's judgement about them. A law which stipulates the existence of that state of affairs as the condition of a certain legal consequence is accordingly one which lays down a judgement-independent condition. Many parallel cases can be envisaged, such as that a's act causes b's death, and a intended this, or that a offers goods for sale and b accepts the offer. These are all instances of what I shall refer to as ~judgement-independent operative facts". In other cases the operative facts include as a necessary condition that some judgement be made by some person holding a special office, competence or qualification. For example, the facts made operative in the (English) Family Provision Act: summarily, if a person a represents that a deceased person b did not make reasonable testamentary provision for a, and if a judge j is satisfied that reasonable financial provision was not made, then j can make such order as j thinks fit to provide a with reasonable provision out of b's estate. Here, as is not uncommon, not only the operative facts but also the normative consequences laid down by law contain an essential reference to a judgement to be passed by j, and there is symmetry between the operative and the consequential judgements. This again is far from 28 Neil MacCormick uncommon; for example, there is judgement-dependency in any provision to the effect that if a court is satisfied that it would be unjust or inequitable to let a certain state of affairs come into or continue in being, the court may grant an injunction in terms it thinks appropriate to prevent the injustice or inequity. Many similar examples could be figured. Judgement-dependency thus defined is the distinguishing mark of legal discretion. "Discretion" is that which is conferred on a person whose judgement is made operative under some legal provision of the type here exemplified. This is etymologically well founded, given the close connection of the ideas of judgement and discretion, as wit- nessed, e.g., in the sense of the term in which discretion is a valued personal attribute, e.g., in a political or business adviser, not a form of legally conferred power unpopular with constitutionalists and civil libertarians. It is also descriptively plausible when one considers the part played by disCretion within a legal system.

3. AN OBJECTION: OMNIPRESENT DISCRETION?

There is at least one objection which might swiftly be raised to the proposal just made. It is that every legal provision is, as such, judgement-dependent at the moment of judicial cognition or, afortiori, judicial enforcement. For no right can ever be enforced by any judge save if she or he judges that it has been or is being or is under im- mediate risk of being infringed. So the contrast fails as a contrast, since it turns out to cover every case of a right. The point is plain enough: it is all very well to point out that the legal rights of a deceased testator's children in Scots law are statable abstractly in judgement-independent terms. But the moment any serious question arises as to any such a right in a concrete case, or the moment someone seems to be suffering denial of such a right and wishes to do something about it in the concrete case, the question will have to be taken to court. Then the court will have to judge whether the case as pleaded (pleaded, no doubt, in judgement- independent terms) satisfied the legal conditions for the existence of the legal right, and over how much property, and shared with how many others. Here there is much exercise for the judgement; perhaps Discretion and Rights 29

not different in degree or kind from that involved in determining a case under the English statute. Let us concede the nondifference of kind at this level, though there does remain a difference of degree, to be explored shortly. Even so, this does not show that the primary fight, the right to a fixed share, is judgement-dependent. What it shows is the winning of a remedy for a breach of the right is inevitably judgement-dependent. This is no surprise, for all remedial provisions in law necessarily include provisions as to the appropriate judgement of a court, and thus all legal remedies involve some judicial discretion in determining whether the grounds for granting a remedy have been satisfactorily established. By my definition there is always a discretion in relation to the granting of judicial remedies. At the level of enforcing remedies, discretion - the judgement of courts - is indeed omnipresent. Nevertheless, at the level of primary legal provisions there is still a genuine and important difference between judgement-dependent and judgement-independent provisions. There is in one case a primary provision that a person shall have a certain fixed share of a fund; there is in the other a primary provision, if it is that, entitling a person to make application for that which someone else judges reasonable. The person in the latter case thus can take advantage of the law's provisions only to the extent that another thinks it reasonable for her/him to have or enjoy such advantage. If all the advantages a person could enjoy under all existing primary legal provisions stood this way, that person would not then enjoy anything remotely like a legally independent status; for everything the person would depend on another's judgement, just as the unemancipated son of the Roman paterfamilias was wholly dependent on the paternal judgement, or the feudal vassal on the feudal supefior's. This explains a part of the historical importance laid by eighteenth century thinkers on the idea of fights as such, and the idea that rights had to be grounded in "general and inflexible laws ", to use a term of David Hume's in one of the essays so influential for James Madison and Mexander Hamilton when they came to the writing of the FederalistPapers. The idea of a "free government", inherited by us from that century and such thinkers, crucially involves the enshrining of fights in fixed 30 Neil MacCormick and determinate provisions, such that any person should be able to be independent in law of government and fellow citizens alike, not dependent on the judgement of superiors as under feudal law. We should be able to know where we and others stand at law, so that everyone may live in secure enjoyment of Ms/her own, knowing what is one's own by right and what someone else's. That rights will occasionally be challenged or infringed, necessitating recourse to an inevitably discretionary process of adjudication, sets an unavoidable limit to civic independence, but does not collapse it into discretion- governed dependence. Still to be considered, additionally, is a significant difference of degree between our contrasted pair of family succession provisions. No doubt there is judgement involved in determining who is whose daughter, how many surviving children there are, how much the moveable estate comes to. But all this seems muck less judgemental than deciding, e.g., how much financial provision it would have been reasonable for the deceased to have made for a given applicant in the light of relevant facts "including [e.g.] the conduct of the applicant or any other person" (section 3 (1) (g)). This is important. A value- expression or value-predicate such as "reasonable" always involves a multifactorial judgement in any sound application of it to a case. Even if reasonableness is, as lawyers claim, both a "quesfon of fact" and a matter of "objective" tests, its application is judgemental in the sense that rational people of good will can, in the last resort, differ over a considerable range of cases as to what actually is reasonable in the given context. On this very account some would reverse me as to nondifference in kind. The difference between fact and value, they will say, is transitive over into that between operative facts and operative values in legal norms. Whenever some normative consequence is made conditional on realisation of a value such as "the reasonable" in a concrete legal setting, the norm's application requires a value judgement, hence the norm is disguisedly judgement-dependent, hence by my test discretionary. And if discretion is the contradictory of rights, it follows that there can be no strict rights where there are any such value-predicates, and what would then become of rights to due process, et cetera? The grandest legal rights such as those in the U.S. Bill of Rights or the Discretion and Rights 31

Canadian Charter of Rights would thus turn out to be misdescribed as such - a bold conclusion indeed, but an unconvincing one. Not merely because this reductio is damaging to the present case does this thesis of the difference in kind between operative facts and operative values merit rejection. Facts as much as values always call for the exercise of judgement in concrete cases. Always the evidence for a fact, often the weight of the evidence for and the evidence against its existence, has to be weighed before a conclusion can be reached. This is an evaluative process. There can indeed be facts without any judgement of them; but there can be no acting upon facts without some judgement as to their presence. No less is it so that our whole conception of value-judgement presupposes that values are instantiated independently of our judging them to be realised. But acting upon values is always and necessarily acting upon value-judgements. It is after all the difference of degree which matters. The complexity, multiplicity and contested relative weights of the factors which enter into judgements of fact and of value can vary greatly. Multi- factor values such as justice, fairness, due process, or reasonableness call for greater subtlety of judgement than do most matters of simple fact (and simpler judgements of value, such as those of cheapness or dearness). Whether or not they enjoy some form of existence or reality on an ontological plane, judgements about them, because of their multifactorial quality, exhibit a marked and probably irremediable element of subjective variability. So it is certainly the case that once we reach the remedial level, legal provisions which make such values operative for given outcomes are more broadly judgement-variable, and thus judgement-dependent, than others which are conceptualised in terms of simple operative facts. In this light the conclusion we should draw is the unsurprising and unembarrassing one that legal remedial provisions all involve some exercise of discretion, but discretions differ in their degree or breadth. Some sorts of provision entrust multifactored questions to judicial judgement or jury deliberation. Others pose simpler questions. The more broadly judgement-dependent provisions confer a broader or greater discretion. The less broad, a narrower or more confined discretion. None confers an unrestricted discretion, satisfiable by any sort of judgement or none at all. Discretion is always about judge- 32 Neil MacCormick ment, where judgement is the prerequisite of the exercise of some authority in decision making. If we scrutinise solely the surface structure of primary legal provisions, we can draw a simple differentiation between those which categorically impose duties or confer rights under judgement-independent conditions, and those which make no judgement-independent provisions of any sort. The latter are through and through discretionary. The former, albeit nondiscrefonary at the primary level, are all necessarily judgement-dependent at the secondary or remedial level. Here, there may be considerable differences of degree; the absence of a primary discretion should not blind us to the presence of what may be an alarmingly broad discretion at the secondary level. Resort to the technique and language of rights at the primary level can be rather a sham if at the secondary level any enforcement of the right in question is broadlyjudgement-dependent, that is, broadly discretionary.

4. RIGHT ANSWERS AND THE ETHICS OF RIGHTS OR DISCRETIONS The foregoing argument has studiously avoided the supposition that questions of fact admit of simple right answers while questions of value do not. Since in law, facts have to be proved on balance of probabilities or beyond reasonable doubt, fact-judgements are valua- tion-dependent anyway, so the simple distinction won't run far in pracfcal as distinct from metaphysical settings. In truth, when one looks at the terms of the English Act, one can figure many instances where it would allow one to reach an answer as indubitable as Scots or Connecticut law would give. An aged and wealthy parent has long been cared for by a dutiful daughter or son who gave up independent income and career to look after parent. In a fit of caprice, but being of sound mind, parent makes will leaving all to the Cat and Dog Home, then dies. There is nothing for the carer. The correct exercise of the court's discretion will surely be to award the carer a substantial competence out of the estate, with only a residue to the Cat and Dog Home. Scots law, of course, guarantees carer a share; but in such circumstances, it might be an unfairly small share - then there will be nothing for carer beyond the strict legal Discretion and Rights 33 right, and that will be no more than equal to what cruelly neglectful siblings (if any) will get. Connecticut law has the same plain, nondis- cretionary simplicity as Scots. Here carer gets nothing at all. Of course, there will be many infinitely more finely balanced cases under the English Act where it will be far less clear what the legally right answer is in the circumstances which have transpired. The discretionary system will be fraught with uncertainty, at least on quite wide margins, until these are resolved by judicial determination or passage of time. Here, Scots and Connecticut law will have the marked advantage of far greater certainty and clarity. People will be able to know their rights and act on them, even in cases where the law seems unfair in the distribution it enforces. They will not have to go trailing off to courts, or to wait'while others do so. There will not be familially disruptive challenges to the deceased's reasonableness or fairness dragged out in the glare of courtroom publicity. Even where the English provision is finely balanced, so that it is chancy to predict how a court will decide, and even though there will be cases where honest, able and conscientious judges differ on the right result, this would give us no reason to doubt that under the statute there is normally just one right answer. The number and range of factors brought into judgement by section 3 of the Act creates complexity, but surely a sufficient basis for a well-weighed judgement. Our lack of predictive clarity or demonstrative certainty here is significant for many practical purposes; but it does not, as Ronald Dworkin shows in other contexts, in any way entail that no right answer exists to the present question. Only that it is unclear and controversial what that right answer is. This reinforces the point that the advantages of the other schemes are practical ones of clarity and fixity of rights (together with the independency of position associated with regimes of right). These are not necessarily morally compelling advantages as against the English scheme. Even granted on certain assumptions about family structure and relationships and about the propensity of testators to act reason- ably, either Scotland or Connecticut may often deal with the estates of deceased persons in morally unexceptionable ways, surely it is also the case that the English system will more probably get the morally right and fair answer in more cases than the others, just because the court is 34 Nell MacCormick given discretion to take account of all the morally relevant factors, with special weightings for some of them? Could one even argue, as one of my Edinburgh students does, that all this shows the English system to be rights-based, while Scots and Connecticut law are here rule-based as distinct from being rights- based? The best answer would be to rephrase the question. On what sort of right are the provisions respectively based? The Scots one establishes legal rights through rules, and leaves these to be self- enforced by executors or advisers with judicial intervention of a narrowly judgement-dependent sort when someone's legal rights are breached and remedial action is taken. It is based on "legal rights", just as the Scots lawyers say. The rights on which the English system is based are moral ones, having the multifactorial and highlyjudgemental quality characteristic of moral predicates; but on this basis the law has erected a structure of protective legal discretion, not a regime of legal right. Individualised remedies are constructed to fit individual moral right so far as the statutory factors go. But no generalised legal rights are involved in this. Legal rights indeed clash with discretion; but moral rights are in a different position; only discretionary legal provisions could put legal officials in a position to uphold moral right. So, to put it simply, the English law here is indeed founded on assumptions about the moral rights of spouses, children, dependants and family members. But legally, it uses the technique of discretion to assist in securing these moral rights; whereas Scotland and Connecticut use the technique of legal rights and no rights, at some cost in terms of underlying moral rights. This may be morally justified by the arguments from clarity and independence and regard to familial solidarity; but still involves the risk that moral rights will sometimes be overridden through the implementation of legal ones. This reminds us again of the point of the technique of legal rights as it emerged in history. As Hume pointed out, moral zealots might want everyone always to have in civil society exactly that which they morally ought to have. But the uncertainties and despotic judgments involved in such a regime make it less desirable, even in moral terms, than one organised under relatively strict rules conferring relatively clear albeit nonideal legal rights. Legal rights are not arid should not be mirror images of moral rights. Wherever you really want the law Discretion and Rights 35 to implement some part or aspect of the moral ideal, you will have to have recourse to the technique of discretion rather than to that of rights; or to a mixed system of objectively stated rights whose vesting conditions or operative contents are so vaguely or evaluatively stated as to introduce quite extensive discretion at the remedial level of judicial cognition and enforcement. This would appear to be the case under the U.S. Bill of Rights or the Canadian Charter. Since it is sometimes implied that rights are the dimension of morality, but discretion that of policy, this may seem an alarming conclusion. But morality and discretion are inevitable bedfellows.

5. RULES AND DISCRETIONS; JURISPRUDENTIAL CONTROVERSY Ronald Dworkin has argued that H. L. A. Hart made a mistake about discretion, because of confusing weak and strong senses of discretion. Weak discretion only involves judgement in applying standards, not an absence of standards. Hart thought that where rules ran out, law runs out, and then judges have discretion. "Strong discretion, then, by your definitions", said Dworkin, in effect. But since there are other legal standards beyond rules stricto sensu, this must be wrong, and positivist legal theory must be wrong too, he argued; further, since there are right answers even to the toughest of questions about weigh- ing and balancing principles and other standards at law, the judge's duty in the exercise of weak discretion is to find and implement the right answer. That being his/her duty, it follows that every litigant always comes to court for vindication of at least one right: the right to the legally correct decision. We now see this to be a mixture of important truth and conceptual error. Discretion is indeed not something outside law, but legally conferred. Discretion is found in norms whose operative facts or normative consequences (or, usually, both) are judgement-dependent; strict rules of strict law are judgement-independent, hence, indeed, discretion lies beyond the limits of strict rules and in the application of remedies for their breach. Such discretion is, indeed, always "weak" in Dworkinian terms, there being no such thing as strong discretion within legal thought. But the facts that discretionary judgement com- 36 Neil MacCormick monly involves authorised or inevitable recourse to moral factors, and hence, indeed, to the possibility of correct determinations (right answers), and that discretion may often have regard to moral rights, and that judges have a duty to try for the right answer in every discretionary case do not severally or jointly entail the conclusions of the Dworkinian "Rights Thesis", nor need they refute positivism. The reason why all this is so is our discovery, or reminder, that rights and discretion (albeit discretion can only be weak) are distinct legal techniques, not the same one, as Dworkin, in effect, thinks. The merit of discretion is that it makes for morally sensitive and morally nuanced law; the disadvantage is that too much of it, or excessively extensive forms of it, can be corrosive of civic independence. Legal rights of the kind (or in the sense) identified here protect that latter, but at the price of being morally blunt instruments. All this will be controversial since it is, I hope and believe, a novel idea. As such, it may well be wrong. At least it may arouse fruitful controversy.

Faculty of Law, University of Edinburgh, Old College, South Bridge, Edinburgh, EH8 9YL, SCOTLAND