Cooking up Legal Theory

by Nicole Carmen Tan Yi

“[T]heory is built on ignorance” (Halpin, 20001). Since it is reasonable to assume that skills attained from practical experience in law will never be rich enough to provide us with what is required from the practice, legal theory endeavours to provide the best understanding of law, by attempting to encapsulate its features: its nature and technical aspects. However, whether legal theory actually does assist in our understanding of law is an entirely different issue, and it is this question that this essay seeks to answer.

To do so, an analogy can be drawn between legal theory and cooking recipes; recipes are instructions that put forth a description of a dish and steps on how to create it. Therefore individual recipes, however general, only cover how to prepare specific kinds of dishes. Similarly, individual legal theories fail terribly in providing a fixed concept of law, as no single theory will be able to provide a framework that will cover the law of every type, in every jurisdiction, and at every era. I am not proposing that legal theory is completely useless, but that the true value of individual theories is in assisting our understanding of law in limited scopes. With this said, before they can be of any practical value, we must first point out the precise role each theory best plays, and apply it accordingly. To do so, two deductions necessarily follow for every theory:

  1. The scope of the theory must be identifiable via the acknowledgment of its limitations.
  2. The theory must be accurately categorised into any of these three kinds: Descriptive, Normative and Prescriptive.

Deduction (1) is cardinal because we want to apply the theory in real-world situations, and not in a vacuum. Because of the complexity of the interactions between law and real-life situations, in order to efficaciously apply any theory to any real-life context, four important factors must be considered: Who is applying it, what type of law it is applied in, when it is applicable, and where (which jurisdiction) it is applied. Correspondingly, Deduction (1) is needed to tells us:

[Who] if the theory can be applied by everyone in the same way; [What] how well fit the theory will be in a specific area of law; [When] whether we are moving towards or away from such a framework; [Where] if any modifications need to be made before the theory can be transplanted from one jurisdiction to another.

The significance of these factors will be elucidated when we reach the specific examples of legal theories. The importance of Deduction (2) will be handled as the essay goes on, and will form the major theme in the essay, to show how theory assists in our understanding of law.

DESCRIPTIVE THEORIES: JUST FOR STARTERS

For a recipe to be effective, it requires only a framework of how to prepare a dish – a list of the ingredients needed and an explanation on how to prepare it.  The addition of other information like the precise cooking techniques does not necessarily improve on its helpfulness, as people have different skills and personal preferences even for the most basic steps (like stirring). Imposing methods of such specificity, if unsuitable, may result in the dish tasting different from what  it should. Accordingly, there is value in the positivist’s view that the objective description of law is a worthy goal, because one must have an idea of the skeleton of law before any analysis or application of the theory can come into play; the importance of the conceptual separation of law from morality comes across visibly as well, given that our ideas of morality are inexplicably differing.

Austin’s Command Theory: Reflective of Criminal Law In 19th Century England

In the Command Theory, Austin maintained that coercion is an essential and normative aspect of law, and that legal norms comprise threats backed by sanctions. While this has been fiercely criticised because it neglected the non-coercive dimensions of law, it must be noted that the period which Austin put forth his Command Theory was during the 19th century, where a great deal of emphasis was placed on criminal law due to the skyrocketing of crime rates. Therefore, it is understandable why the purpose of law then focused on maintaining order. However, with the expansion of law to cover various other types such as company and intellectual property law, coordinating interests of people is of greater importance. It is thus imperative to recognise that while this theory is likely to represent the law in 19th century England, it is unlikely to represent the current state of law even in England itself, where various areas of law are not coercive in nature. This illustrates the significance of [When], because as societies progress and law gets more advanced, law’s primary functions may change, making it important to recognise the limitations of such theories’ accuracy in this respect.

Nevertheless, the fact that this is a descriptive theory of the past does not render it useless in assisting one’s understanding of today’s law, as long as one can accurately identify the area of the law in which it can be applied [What] and does not apply it as a blanket concept. The Command Theory can still accurately capture many aspects of criminal law in many societies today. Singapore serves as an excellent example, as people here are fined for extremely trivial activities, such as selling chewing gum (as per the Sale of Food (prohibition of Chewing Gum) Regulations2). While these are considered to be perfectly acceptable in other nations, most people who come to Singapore nevertheless adhere to these rules – the most plausible explanation of this, is that the threat of sanctions provides criminal law with normativity that it would otherwise not have.

Hart’s Model of Rules: Focus on Legal Rules and Materials

As a descriptive theory, Hart’s theory attempts to describe the law as it is, and focuses on the idea that a legal system consists of primary and secondary rules. However, it nevertheless covers grey areas of law, such as whether constructive dismissal falls within the definition of “notice of dismissal” in section 84(1)(b)(ii) of the Employment Act3, which he would label as a “penumbra of doubt”. His theory allows us to understand that the issue would be whether there is a primary of obligation imposed on employers to provide statutory compensation to constructively dismissed pregnant employees, and that judges will use their discretion to decide on this (covered in “open texture – this however, is left as a preliminary concept with little development).

Although the lack of emphasis on legal reasoning has been fiercely criticised, placing greater emphasis on legal rules has greater worth than what people would usually credit it for. This is because we can only use legal materials as our reference to what the law is; in attempting to understand the present situation of the law, we can only turn to legal rules and use legal materials to help us ascertain how the law really is, as opposed to thinking processes of lawyers, legislatures or even judges. Therefore, rules play a much larger and more concrete role than legal reasoning. Going back to the analogy, the precise steps taken in its preparation although imperative in preparing the dish, are no longer central to what the dish is once it is served. Steps then become merely norms that the creators of the dish use – thus this belongs not in a descriptive, but a normative theory.

NORMATIVE THEORIES: EACH HIS OWN TASTE

Normative theories describe purported norms relating to law; it is important to differentiate such theories from descriptive theories, because even if a legal rule or decision seems to completely stray from accepted norm, it does not change the fact that it is still valid law. Normative theories are important when one wants a deeper understanding of the process of the creation of law – Legal reasoning, and play a predictive role, to show how an area of law or a specific legal rule is likely to change. However, there is clearly no hard-and-fast rule on the criteria people use in legal reasoning to make a legal decision, for example, one may weigh morality over procedural due process or vice-versa. Thus it is unavoidable that such theories will never accurately predict the outcome of all legal decisions, like how recipes can never describe the exact taste or capture the exact appearance of the dishes created from them.

Dworkin’s Interpretive Theory of Law: Hercules

Dworkin has attracted many critics for his “Right Answer Thesis”, that what people disagree on, is what the right answers to individual cases are, the right answers being how the perfect judge “Hercules” would rule there. While it as a theory providing an interpretive truth is inherently problematic, it forms a completely cogent a normative theory. It is perfectly reasonable to purport that it is a norm that judges would work towards possessing Hercules’ characteristics of “superhuman skill, learning, patience and acumen” (Dworkin, 19774) just as how it is absolutely acceptable to say that all chefs aspire to be a flawless master-chef who cooks the best food.

Furthermore, Dworkin even set the context where his Hercules exists: “some representative American Jurisdiction” (Dworkin, 19775). This serves as an acknowledgment that the process of legal reasoning he purports to be used (with the use of justice, fairness, procedural due process and political morality as primary decision-making factors) may not be as preferable in a different Jurisdiction [Where] – it is highly unlikely that political morality will supersede religious will in Islamic law. Therefore, modifications must be made to these determinative factors in Dworkin’s theory for the theory to accurately reflect legal reasoning processes in such jurisdictions.

Nevertheless, using Dworkin’s theory as a normative framework, it assists in understanding the trend of change that Law in American Jurisdictions undergoes, such as in Adarand Constructors Inc v Pena6, where it was held that race based discrimination, including discrimination in favour of minorities (affirmative action), is subject to strict judicial scrutiny. Evidently, fairness (equal treatment to all) was central to this decision, and a balance between political considerations and inherent morals was struck here.

However, the scope of Dworkin’s Theory is rather limited because it only covers judicial reasoning, and fails to make a conscious effort to look at legal reasoning by lawyers or the legislature, which incontrovertibly play an important part in the making of legal decisions. It is obviously unwise to forcefully apply this theory if one wants to understand the legal reasoning processes of lawyers or the legislature, given how their roles in shaping the law are inherently different [Who]. It would be akin to saying that tasters and gourmets affect how dishes prepared are in the same way that chefs do.

PRESCRIPTIVE THEORIES: DISHING OUT THE IMPROVEMENTS NEEDED

When one already knows how to cook a specific dish, one will no longer need to refer to the specific recipe while cooking. However, when people’s taste change, one will need to make modifications so as to suit this change; otherwise, the dish will fail to achieve its purpose of providing satisfaction to its consumer. Correspondingly, in such situations, a prescriptive theory will be useful, as only by having an idea of what the law should be, will one know understand how the law should be reformed to suit the changing needs of people. There is little doubt that improvements can be done without using legal theory, just as how dishes can be improvised in the process of cooking. However, using theory will result in a more efficient reform process, like how changing the recipe used to an improved one results in less time and food wasted compared to a trial-and-error process. Once accepted as a prescriptive theory, the question on how useful a theory is in understanding the law transforms into the simple issue of “whether the new recipe is better than the old one”, because a prescriptive theory only has value if it indeed shows how the law should be.

Posner’s Economic Analysis of the Law: As a Prescriptive Concept

In his earlier works, Posner stated that wealth maximisation of society’s total wealth is a standard that should guide judges in their decisions. As a prescriptive concept, this is a viable and appropriate theory that should be adopted, as it allows us to work with something of tangible value that people can essentially agree on. This is because monetary value is central to people’s interests and well-being, and order in society. It is also one of the few quantifiers that is as (perhaps more) pervasive in the real world as law itself. Applying this approach in Competition Law, it provides a clear explanation why nations should have anti-monopoly laws that specifically exempt natural monopolies. Generally, monopolies do not maximise wealth, given that the lack of competition results in higher prices of goods, and provides little incentive to improve on products. However, natural monopolies are exceptions to this – hence explaining the need to adhere to the specificity of this suggestion.

Feminism: The Need for Individual Analysis

In the case of feminism, there is great variety within the group itself, such that basically the only common belief held is that the law has been distorted towards the perspective or interests of men. As such, in order to get a better understanding of how a specific law should be changed, one needs to analyse each theory within it individually. It is hardly of any use to apply feminism as a theory in its entirety; just as how a general recipe of “preparing seafood” is not going to be of any help in cooking a crab. Nonetheless, just the fact that the idea “women should not be seen as subservient to men” evidently calls for the lifting of marital immunity for rape (found in Section 375(4) of the Penal Code7) alone is sufficient proof that individual ideas of feminism can show how the law should be changed.

LEGAL THEORY – THE ICING ON THE CAKE OF PROPER APPLICATION

Descriptive, normative and prescriptive theories play inherently different roles, with descriptive theories assisting us in understanding past and current law, normative theories assisting us in understanding the likely developments of law, and prescriptive theories assisting us in understanding preferable directions that the law should head in. While they individually assist in our understanding of law, they require skills for proper application in order to avoid confusion and muddling of one’s understanding from practical experience. What is important to note is that they are only approximations of the law, however close they may be, and that they may ultimately differ from practical experience. As such, when practical experience proves otherwise, one needs to know when to let go of legal theory and return to relying on the knowledge derived from practical experience. After all, what use is a “fried rice” recipe even to a novice cook attempting to make fried rice, if provides instructions on steaming, or does not have rice as one of its ingredients?


[1] Andrew Halpin, “Law, theory and practice: conflicting perspectives?” (2000) 7 Int’l J Legal Prof 205

[2] Cap 283, 2004 Rev Ed Sing

[3] Cap 91, 2009 Rev Ed Sing

[4] Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977) at 105

[5] Ibid, at 105

[6] 515 US 200 (1995)

[7] Cap 224, 2008 Rev Ed Sing