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 possi- bility (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 respec- tively 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 judge- ment-independent. The first questions posed by this paper are, then, whether the contrast is clearly and intelligibly drawn; and whether there is any- thing 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.