Which courts or tribunals must refer? (art 267(3)) – obligation!

      • Rationale for imposing this duty is to prevent body of national case law that is not in accordance with EU law from being established!
      • 2 interpretations:
        1. The abstract theory: only bodies whose decisions are never subject to review
        • ➔ MSs would want this – don’t want to be subject to too many mandatory prelim refs
        1. The concrete theory: depends on whether the body’s decision is subject to appeal in the type of case in question.
      • ECJ’s jurisprudence seems to support the concrete theory.
        • Costa v Manchester taxi , 1964: although magistrate’s decisions were capable of being appealed in some instances, there was no right of appeal in the particular case – allowed prelim ref!
        • Lyckeskog case, 2000: just cos appellate court decision was subject to prior declaration of admissibility before it could be appealed to the Sup Ct did NOT mean that the appellate court’s decisions came within art 267(3) – procedural impediment to appeal did NOT make it a final court. It is Sup Ct is the final court under obligation.
        • ➔ hence, question is whether there is any possible legal remedy, regardless of practicability/subjection to restrictions.
        • What if lower national court makes prelim ref, which is reversed on appeal by higher court?
          • Cartesio case, 2008: ECJ supported ability of lower courts to refer to ECJ, even in face of opposition from higher court. It is up to the referring court alone (and not the appeal court) to assess relevance and necessity of prelim ref. For clarity and legal certainty, ECJ will abide by decision to make prelim ref, which will have full effect as long as it hasn’t been revoked/amended by the referring court.
          • Facts: about registration of company under Hungarian law (before lowest courts) – ECJ held that review of what was essentially administrative act is still inter-party procedure, between company which wanted the registration, and lower court seeking to deny it.

Dworkin Taking Rights Seriously, Chs. 2 and 3

  • Under Hart’s analysis, rules become law is either they are valid i.e. have passed all the criteria which the system sets out OR because it is accepted (not enough that people should conform to it by habit but must positively accept it). The rule of recognition is considered by Hart as “ultimate” and therefore cannot be law because it is valid according to the tests of some other law (which, by definition, must be inferior to the “ultimate” rule- that of recognition). Instead it must be law because it is “accepted” by the people. This is distinct from Austin who considered that power was a pre-requisite for making a law, whereas Hart considered that it must have authority.
  • There is a difference between rules and principles. Rules are applicable in an all or nothing way i.e. if a rule is (1) valid and (2) its facts apply to the case, then it determines the outcome. If either 1 or 2 fails, then it contributes nothing to the decision. By contrast, principles do not tend to stipulate a punishment when they are broken, and nor are they conclusive e.g. we have a principle that a man should not profit from his own wrongdoing, and yet adverse possession does just that. Principles merely state goals of morality/fairness/justice. Also, there can be two conflicting principles within a legal system, but this does not mean one is invalid (it simply may mean that each one is supreme in certain areas). However if 2 rules conflict, one must be invalid, to be decided by other rules e.g. preference for the rule with higher authority/enacted later etc.
  • Positivists believe that where a case isn’t clearly covered by a valid legal rule e.g. because of vagueness of a rule, then the answer cannot simply be found by applying the law. Instead judges/officials must reach beyond the law and use their discretion. This discretion is defined as existing where the judge is simply not bound by authority. Hart called for this doctrine of discretion because law is “open textured” (i.e. it is often vague or susceptible to many meanings). If the judges’ decisions are determined by their principles, then the principles are in effect becoming law. Dworkin argues that it would be absurd to deem principles incapable of binding judges in a legal sense, since it would make no sense to say that judges have a mere moral obligation to consider all the principles. If they have such a duty it must be legal. Positivists might counter that although principles have influence on judges, they are not themselves binding in that they do not completely determine what is to happen in a given situation. However this is merely to say that principles are not rules. Also, if 2 principles conflict the judge must take his pick, just like where 2 rules conflict. Other positivists might say that since a principle cannot be shown to be authoritative as a rule can (e.g. by locating it in statute/court decision) it cannot be legal. However Dworkin argues that whether principles are binding can be determined, albeit less conclusively, by looking to things like community practice etc.
  • There is a conflict between whether principles can be binding and the rule of recognition. Principles are not recognised as satisfying the test for legal validity under the positivist model and therefore cannot count as laws. According to positivism, it would be impossible to claim that principles can be laws, since it would be impossible to find a sufficient level of institutional support (from case law or statute) that would satisfy the rule of recognition. Dworkin says the rule of recognition only works for clear cases, but for complex ones principles are invoked before the court to determine the outcome of the case.
  • Hart argues that for a social rule to exist, there has to be (1) a generally observed practice, (2) an understanding that a rule to this effect exists, and (3) sanction for non-conformists. He applies this to the rule of recognition, saying that (1) Officials often impose laws/regulations e.g. tax collection; (2) they point to the “rule” that courts give effect to the laws of parliament; and (3) that judges are considered at fault and verbally sanctioned if they fail to conform to the rule. However, while the example of judges obeying parliament is true as a social rule, the example of a churchgoer removing his hat is a “normative rule” (i.e. it ought to be the case) and only exists in fact if the individuals concerned do in fact have the duty that they suppose themselves to have.
  • Dworkin says the main difference between himself and Hart is that Hart believes that in every legal system a social rule exists that sets the limits of a judge’s duty to recognise any other rule or principle as law. Dworkin says the very fact that judges constantly disagree about what other rules they are to take into account and to what extent they are subordinate to parliament demonstrates that such a rule clearly cannot exist, even when using Hart’s 3-step formula.
  • Dworkin rejects the idea that “institutional support” can found a secondary rule, as the law of recognition would require. He says that it is not morally or politically neutral (i.e. it depends on what the majority of officials at any given time think the best model of government is, such as separation of powers). Thus a theory of law founded on this basis could not be separate from political or moral theories.



  • Dworkin Law’s Empire, Ch. 4


  • Conventionalism is the idea that past political decisions can be made explicit and non-contestable. Legal conventions (a sub-species of social conventions) designate which institutions have which powers, e.g. the convention that HL decisions bind those of the lower courts. Conventionalism also disputes the view that there is always law to enforce. In hard cases the law may be incomplete and the convention of precedent may not apply, and so judges have discretion in the “strong sense” and the constitutional authority to resolve such issues. Conventionalism thus reaches a similar conclusion to positivism. The difference is that positivists claim strong judicial discretion to be evident from analysing the language of the law, whereas conventionalists say this is really what happens, on the evidence, and offers the best account of it so as to guide future practice.
  • The theory also says that judges must treat as law what convention dictates is law, e.g. in the UK conventionally acts of parliament are law and therefore judges have to follow them.
  • Why should past political decisions is decisive of present rights? One answer is that it provides fair warning. The doctrine also states that the past yields no rights tenable in court except those that are made uncontroversial by what everyone knows and expects. If convention dictates the answer, then that must be it. If convention is silent, then judges shouldn’t pretend their decisions come from it (i.e. from statutes or precedents). What about where we want the court to flout convention in order to change the law, as in Caldwell for example? Dworkin says this would contradict the doctrine by allowing “law beyond convention”. Conventionalism demands that in “hard cases” the judge’s discretion should be guided as far as possible by conventions, e.g. by asking what parliament would have done (sue to the convention of parliamentary supremacy).
  • Do we have the conventions that conventionalism requires? Application of statute? Not the uncontroversial/literal application- courts have to interpret in cases of unfairness etc. Who favours which interpretation will realistically depend on moral/political beliefs of each person. There is no convention for dealing with vague precedents or statutes. Also, if every hard case that goes to the appellate court is to be decided explicitly not on the basis of convention (since hard cases are ones not resolved by convention) then the number of exceptions to the doctrine is sufficient to damage our faith in the doctrine per se.
  • Conventionalism fails precisely because judges pay more attention to statutes/precedents than the doctrine allows them to do. They seek to apply them even where an explicit understanding/interpretation of the statute/precedent is not possible and has to be inferred. Judges do not just give up on statutes in hard cases.
  • Dworkin challenges the idea that legislation or precedent should be read in a certain way by virtue of that way being “convention”. If this were true, any criticism of the merits of a statute or precedent would be out of place (if convention is the justification, then merits are irrelevant). In fact, an interpretation comes to be established by consensus, not convention, so that merits are relevant (as a successful argument that an interpretation has no merits can overturn a consensus- though NOT a convention). So many of the UK’s constitutional features are debated so often that they cannot be regarded as existing because of convention. (NB this belief that rules exist because of consensus is perilously close to Hart’s rule of recognition!).
  • Is the ideal of “fair warning” sound and is it enough to justify conventionalism? Surprise per se is not unfair even when my prediction was reasonable (e.g. I bet on a horse thought to be the best which loses). Instead it is only unfair when I have been encouraged to predict a state of affairs by those who deliberately defeat it. However since we do not profess conventionalism, it is not unfair to go against it e.g. there is no consistency among judges in applying conventionalist principles (see above) therefore people aren’t going to rely on it.
  • Conventionalism cannot be justified on the grounds of surprise being inefficient or undesirable since it doesn’t really prevent surprise e.g. in hard cases where conventionalism demands that the judges accept that rules don’t exist and just decide the case in their discretion which is unpredictable. If we really wanted predictability we would use “unilateralism” i.e. only remedies where the law is clear, and hard cases cannot succeed i.e. no discretionary jurisdiction.