The Micro-Sovereignty of Discretion in Legal Decision-Making: Carl Schmitt’s Critique of Liberal Principles of Legality

“What matters for the reality of legal life is who decides.” (Carl Schmitt)

Michael Salter

msalter@uclan.ac.uk

Susan Twist

smtwist@uclan.ac.uk

Lancashire Law School,
University of Central Lancashire, Preston.

Copyright © Michael Salter and Susan Twist 2007
First published in Web Journal of Current Legal Issues.

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Summary

This article explores a series of interrelated questions: Is it possible to reinterpret Carl Schmitt’s major works on legal theory to yield insights capable of explaining the apparently perennial status of discretion as a feature of any conceivable modern legal system? How can and should scholarship analyse the selective exercise of discretion within the application of law, including with respect to the “intrusion” of (geo)political, economic and policy factors as determinants of legal outcomes? Should we positively welcome such phenomena as manifestations of much-needed flexibility that facilitates ad hoc, situational responsiveness of law to ever-changing contexts of application within both institutional specific sub-cultures (“concrete orders”) and the interplay of various political, economic and policy factors?

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Contents

Introduction
Discretion Falls on The Prohibited Side of a Series 0f Important Distinctions
Discretion is Not a Legal Topic
Discretion Undermines the Generality of Statutes
Discretion Challenges Appropriate Conceptions of Law and Values of Legality
Discretion Introduces and Aggravates Indeterminacies Within Legal Doctrines
Discretion Undermines Certainty Within the Legal System
Conclusion

Bibliography

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Introduction

There is little doubt that legal scholarship is currently witnessing a considerable revival of interest in the controversial writings of German jurist Carl Schmitt (1888-1985).  Schmitt’s reputation suffered from his brief and deplorably opportunistic collaboration with the Third Reich between 1933-36. However, most contemporary interest in Schmitt’s writings stems from those who identify themselves as left-wing or otherwise radical but who are dissatisfied with socialist conceptions of the state, law and politics, hence the term “left-Schmittian” within the secondary literature. Our concern is not with Schmitt the person but discussing the possible contemporary utility of a broadly Schmittian perspective, particularly his critique of mainstream liberal thought about law. The question of the validity or errors in his analysis of liberalism is obviously distinct from the personal, political or religious motivations he possessed for making these criticisms.  His works, in increasing numbers, are being translated into English (Schmitt, 2005; Schmitt, 2004; Schmitt, 2003; Schmitt, 1996; Schmitt 1985.  See Schmitt, 2004 pp 3-5 and Lilla regarding recent publications.  For a study of secondary literature see Caldwell, 2005)). His work has been critically addressed within various anthologies, special issues of law journals, and books (Canadian Journal of Jurisprudence, 1997; Koenen, 1995 pp 1-24; Cardozo, 2000; Telos, 1987; Dyzenhaus, 1997, Arato. 2000; Preuss, 1995). A recent Westlaw search indicates over 50 significant references to Schmitt within articles published in the last three years.

This explosion of interest has not, however, sufficiently focused on those aspects of his works that address issues of central concern to many legal academics. It has not adequately discussed the tension between the liberal self-image of modern Western legal systems, and aspects of its operation in practice, particularly with respect to routine exercises of judicial and administrative discretion. Part of the rationale of the present study is not to chart and criticise this relative neglect in the secondary literature; nor to develop the implications of his analysis for related studies of liberal-constitutional accounts, a related project of considerably value but surely one that must presuppose the detailed results of studies such as our own.

Schmitt’s analysis differs from internal critics of liberal self-images of the legal system because it is carried out from a position that is radically detached from the deepest presuppositions of liberalism itself, something that makes possible his uniquely remorseless, thorough-going and systematic critique. It is the paradoxes of liberalism viewed through the telescopic sights of a sniper’s rifle. Furthermore, Schmitt’s analysis differs from orthodox Marxism by developing a distinctly political, rather than the anachronistic reductionism and determinism of a social class-based economic, model of the operation of law and the legal system. Our main purpose is to analyse previously neglected aspects of Schmitt’s own works relevant to a post-liberal interpretation of the pervasiveness of such discretion. In this we break new ground.

Although sharing certain features with American legal realism, including the emphasis upon studying the actual operation of law, Schmitt’s approach is wider ranging, and more politicised and concerned to develop jurisprudential themes against dominant positivist approaches. The realists, by contrast, included a strong strand of sociological positivism. In emphasising the interpretative dimensions to discretion and comparative indeterminacy stemming from paradoxical foundations and unstable dichotomies in which a privileged term of a conceptual opposition fails to supplant its apparent counterpart, Schmitt certainly pre-dated American CLS, including its more recent post-modern, Derrida-inspired positions. Yet, his more philosophically informed analysis contains political implications of a quite different nature from the radical libertarianism of that school, an affirmation of legally unregulated forms of micro-sovereignty.

The reasons why there has been a return to Schmitt in current legal scholarship lie partly in the collapse of the credibility of Marxist critiques of the role of law within the liberal state. This has been combined with a need to preserve the idea of law as an expression of a diversity of politicised collective struggles with no predetermined outcome, fought out partly in terms of an endless battle of irreconcilable ideas and interests, which Schmitt shared with aspects of the revolutionary Marxist and Fascist traditions. Another factor has been the decline of the mind-numbing positivism of traditional black letter scholarship, with its spurious and threadbare dichotomy between law and politics, and - in a related move - the rise from the 1970’s of the socio-legal studies movement. Such factors have removed the questionable excuse from excluding Schmitt from legal scholarship on the ground that, despite holding professorial posts in top German university law schools, he remained a suspiciously political, rather than a distinctly legal, writer. Schmitt and his mentor, Max Weber, anticipated the systematic and interdisciplinary elucidation of the policy and ideological basis behind concrete legal measures that is central to most current socio-legal research projects.

Part of both the value, but also, for many, the ominous aspects of Schmittian analysis lies in its powerful explanation, as opposed to empirical description, of why discretion thrives in modern legal systems despite, and, perhaps, because of, being denigrated as the nemesis of liberal principles and commitments. One element of this explanation lies in his diagnosis of the contradictory institutional and political implications of these principles and commitments; their tendency during practical applications to generate outcomes which are radically counterproductive to liberal intentions. This occurs precisely in those areas where these are most damaging to liberalism’s own credibility as a motivating and self-legitimating ideology.

The present study explores a series of interrelated questions: Is it possible to reinterpret Schmitt’s major works on legal theory to yield insights capable of explaining the apparently perennial status of discretion as a feature of any conceivable modern legal system? How can and should scholarship analyse the selective exercise of discretion within the application of law, including with respect to the “intrusion” of (geo)political, economic and policy factors as determinants of legal outcomes? Should we positively welcome such phenomena as manifestations of much-needed flexibility that facilitates ad hoc, situational responsiveness of law to ever-changing contexts of application within both institutional specific sub-cultures (“concrete orders”) and the interplay of various political, economic and policy factors?

The present study opens with a discussion of how, according to Schmitt, classic forms of liberal thought and ideology construct and justify their traditionally negative view of administrative and judicial discretion in the decision-making work of civil servants, judges and other officials responsible for the interpretation and application of law to specific factual contexts. His theory of liberalism’s entrenched assumptions and values provides a possible, although challenging and controversial, explanation of this negative reaction. (All references to “liberalism” in this article should be taken as shorthand for: “classic liberalism according to Schmitt’s distinctive analysis”.)

Schmitt claims, or in some cases at least implies, that liberalism has a number of distinct, yet closely interrelated, objections in principle to all manifestations of judicial and official discretion in both the interpretation and application of law. All of these either directly stem from, or are at least indirectly related to, its distinctly ideological-political project of securing for itself a monopoly position in relation to possible alternatives. These objections fall under two distinct but related headings: that unrestrained discretion is damaging not only to vital principles of liberal democratic governance, on which respect for basic individual rights depends (“Cluster One objections”), but also for the proper workings of a modern legal system (“Cluster Two objections”). Cluster Two objections are the kind that an appeal court judge may favour because they identify a series of alleged threats to the integrity of how, according to liberal ideals, the legal system should operate. In this context, our broadly Schmittian analysis can identify the following major criticisms that classic liberal approaches make of discretion, claiming that the latter:

Falls on the prohibited side of a series of important distinctions.
Subverts the generality of statutes.
Is not a legal topic.
Undermines appropriate conceptions of law and standards of legality.
Introduces indeterminacy into legal doctrine.
Undermines certainty, calculability and predictability in the application of law to facts (Schmitt, 2004, pp 50, 91).

Each of these objections will now be examined in turn.

Discretion Falls on The Prohibited Side of a Series 0f Important Distinctions

Schmitt argues that, as a complex system of thought, political commitment and belief, liberalism is founded rests upon a series of largely taken-for-granted dichotomies (Schmitt, 2004 p 52). The suspicion of liberal thought towards executive action in general and discretion in particular, rests upon the perceived need to set up ideals. These are founded upon the following distinctions treated as mutually exclusive and “either/or” dichotomies (Schmitt, 2004 p 97):

The separation of the scientific-positivist study of “the law”, defined as justified state norms, as distinct from an analytical focus upon ‘legal application’ or enforcement, in which decisions are made with respect to individual cases.

General, given and enduring statutes, distinguished from context-specific and ad hoc administrative measures, including delegated legislation and statutory instruments (Schmitt, 2004 pp, 82-86; Bendersky, 2004 pp 8.17).

The reasonableness of abstract general rules (or ratio), differentiated from the ‘alleged’ irrationality of blind and emotionally-charged political will (or voluntas) (Schmitt, 2004 pp 49, 59).

Legal norms, as distinct from the segment of social reality being subjected to legal regulation (Schmitt, 2004 p 52).

The idealism of reasoned principled decision-making, which is grounded purely upon the requirements of legal norms considered in isolation (Schmitt, 2004 pp 70-71), distinguished from unprincipled and instrumental forms of pragmatism and utilitarianism, which are focused mainly upon the practical implications of different possible decisions (Bendersky,  2004 pp 4, 11).

Law strictly defined as technical rules, as distinct from politics and expressions of political goals through ‘policy factors’ (Schmitt, 2004 p 97; Bendersky, 2004 p 7).

Objectively based and impersonal modes of legal judgment, as opposed to subjective-grounded decision-making (Schmitt, 2004 pp 59, 65).

Objective truths of law identified through value-free legal science, as opposed to ideological assertions reflecting the social authority of the interpreter within a hierarchy (Schmitt, 2004 pp 49, 64).

Many of these radical dichotomies are rooted in earlier, metaphysical and theological modes of thinking. However, secular forms of liberalism relevant to legal studies of discretion rely particularly upon the law / politics and objective/subjective dichotomies (Schmitt, 1996 p 23). These are expressed most emphatically in the work of Hans Kelsen and other legal positivists (Schmitt, 2004 p 59).

On the basis of the assumed truth of these dichotomies, liberalism claims to be able to distance the alleged “purity” and “value-neutrality” of strictly legal analysis and application, from supposedly outside influences that derive from all manner of political, moral and other commitments. These influences contain inescapable constitutional questions concerning legitimacy, governmental effectiveness, power and sovereignty (Schmitt, 2004, pp 8-9, 65):

“Likewise, anything ‘extra-legal’ (i.e., anything not created by human legal statute) is rejected for fear of tainting the norm or law with social circumstances, interests, and subjectivity, for these would undermine the claim to objectivity and purity.” (Bendersky, 2004, p 22)

Indeed, Schmitt maintains that liberalism dismisses the interjection of every allegedly “non-legal” or “extra-juristic” consideration as ideological, economic, sociological, moralistic, or political (Schmitt, 2004 p 65). Legal analysis is thereby defined as the comparatively abstract and legalistic interpretation of doctrine (“law in books”), carried out in isolation from those so-called “contextual factors” that other “non-legal” disciplines, such as the sociology of law and criminology, draw upon to explain specific processes and events within the legal and constitutional systems (“law in action”) (Schmitt, 2004, pp 62-3, 70-71).

Liberalism not only makes clear-cut and radical distinctions between supposedly mutually exclusive phenomena but also bestows constitutional legitimacy only upon one side, or half, of these various pairings and oppositions. For example, generally applicable statutes are defined as exhibiting the essence of valid law in general because they manifest the principle of “equal treatment”, whilst firmly disqualifying the other side of this pairing: namely, ad hoc discretionary measures directed at specific contexts, institutions or groups (Schmitt, 2004 p 81). This system of prioritisation works to disadvantage the status afforded to discretion because, as much of the remainder of this study will illustrate, it is most closely associated with those elements that are disqualified and excluded.

In this context, the identification of aspects of, say, discretion and a personal elements of choice between alternative judicial interpretations of the “relevant” facts and “relevant” legal measures, becomes immediately reinterpreted as falling on the prohibited side of the subjective/objective dichotomy (Schmitt, 2004 pp 65, 91). This, in turn, provokes the conclusion that discretion necessarily represents an example of constitutionally illicit forms of “arbitrariness”, a politicised misuse of state power threatening the basic rights of individual freedom and property (Schmitt, 2006 pp 21, 41). Discretionary decision-making represents the unwarranted and unnecessary intrusion of subjective factors into a process that both can, and should, be strictly objective. Schmitt claims that it is defined as a fall from grace, a: “slipping into the incalculable ‘subjectivity’ of metajuristic considerations” (Schmitt, 2004 p 65).

On the assumption that these dichotomies are well-founded, liberals assume that one can study both law and parliamentary law-making as independent topics in their own right; and to the exclusion of the highly pragmatic and selective application and enforcement of law by a variety of different institutions and agencies. For liberals, the topic of officials exercising their discretion during both the interpretation and application of legal measures to specific circumstances falls on the “wrong side” of two distinctions: generally applicable statutes vs. situation-specific administrative measures and, secondly, ratio vs voluntas (Schmitt, 2004 p 18). In other words, the adherence of liberalism to a series of either/or distinctions explains the disqualification of the empirical socio-legal study of how discretion actually operates in practice. Liberals typically reject this possibility in favour of a largely abstract analysis of law defined as a closed and coherent system of abstract and isolated norms, and judicial interpretations of both the meaning and scope of such norms.

Furthermore, according to Schmitt, these underlying either/or dichotomies also make possible a series of “presumed congruence and harmonies”. Whilst vindicating a distinctly liberal model of the rule of law, these generate additional negative interpretations of the nature of judicial and official discretion. Such interpretations include the assimilation of the following: firstly, the reduction of the concept of justice into strict compliance with legality, leading to a model of merely formal and corrective justice, not substantive political or distributive justice (Schmitt, 2004 p 29); secondly, the assimilation of “law in general” into generally applicable statutes and substance-free “due process” requirements.

By contrast, any potential legitimacy possessed by the discretionary exercise of official power depends, at least partly, upon an affirmation of precisely those terms of these either/or pairings, which liberalism collapses, disqualifies and expels from consideration. For example, the perceived legitimacy of discretionary judgement relies upon its pragmatic and flexible role in actually achieving substantive public policy goals and values, such as social justice. These can be attained through context-specific and responsive forms of administrative regulation attuned to the perceived needs of affected parties (Schmitt, 2004 pp 19, 28-29). The next sections of this study address the remaining objections that classic liberal approaches make to all manifestations of administrative and judicial discretion within the legal system. Our analysis of the specifically constitutional objections will be largely deferred to a later publication.

Discretion is Not a Legal Topic

Liberalism claims that strict legal analysis is directed only towards a supposedly non-political legal doctrine as its subject-matter. This is possible providing such analysis respects the boundaries of law defined as an autonomous and “stand-alone” academic discipline. Hence, it remains impermissible for such exclusively doctrinal analysis to even address the empirical role of discretion in the application of specific legal measures to concrete factual contexts in the real world. For example, an in-depth empirical study of how District Judges exercise discretion in practice, and the emergence of regional variations between courts and the impact of this upon different categories of client, would not typically be included within a strictly doctrinal analysis of family law. Hence, insofar as scholars address the operation and sources of discretion as a positive topic in its own right, they are already guilty of violating the boundaries of “strictly legal” analysis by trespassing upon the wholly different subject matter of the social sciences, such as sociology, political science or criminology.

In short, liberalism insists upon a two-stage prohibition of the topic of discretion: a “first order” prohibition that focuses upon the supposedly problematic nature of the initial eruption of discretion within the legal process itself. By contrast, a second-order negation banishes the empirical study of such discretion by any form of scholarship deserving the title of “strictly legal analysis” (Schmitt, 1996 p 66). The traditionally negative reactions of mainstream legal analysis to the study of the practices of plea bargaining and jury selection, (interpreted as two institutional practices in which factors other than the objective meaning of given legal norms determine the decision-making of courts), are, perhaps, partly explained by reference to this approach (Baldwin and McConville, 1977).

We can illustrate this important point by reference to an extended example drawn from family law practice. Family courts have proliferated and reputations acquired, not only in the sense of a generic “labelling” reflective of the sensitive role in which all are engaged but more significantly in relation to the distinctive character of individual fora. Each geographical area plays host to a multitude of such courts, often found in close proximity.⁽¹⁾ Unsurprisingly, practitioners elect to institute proceedings within a forum, logistically convenient in terms of travel and general accessibility.  However, less transparent factors also tend to influence their decision where to litigate. Whether or not these are articulated to the client, solicitors are all too familiar with the proclivities, some subtle, others less so, of differing members of the judiciary. Whilst courts may strive to adopt a wholly principled and consistent approach, both internally and in relation to each other, they are nonetheless peopled by human arbiters, the individual characteristics of whom invariably become inextricably enmeshed in the juristic process.

Disparity in stance is especially evident in the context of applications for financial provision, whether free-standing (pursuant respectively to the Children Act 1989 Schedule 1 and Matrimonial Causes Act 1973 s 27) or ancillary to divorce under the Matrimonial Causes Act 1973 s 23 and s 24. By way of example, insistence on meticulous adherence to procedural protocol, particularly vital at the discovery stage, might appear to one party a relentless quest for the truth but to another, irksome pedantry.⁽²⁾

Where the outcome of proceedings hinges upon detailed disclosure of an opponent’s financial affairs, the diligence or laxity of the presiding judge may prove crucial in unveiling facts material to the ultimate success of the application. Once a member of the judiciary within a given court habitually enforces procedural provisions with exceptional rigour, this frequently sets a tone for all proceedings conducted there, irrespective of the identity of the judge. Hence, the court itself attracts a certain notoriety, to be avoided by specific types of well-advised litigant. In contrast, the prevailing attitude in an equivalent contiguous court may instead subordinate thorough disclosure to expeditious disposal of proceedings. The discovery stage may accordingly prove markedly less exacting.

 

At the outset, an experienced practitioner will typically need to gauge the weaknesses in the client’s case and formulate a clear strategy as to how best to proceed. Selection of the optimal forum is a vital integral component within this pivotal decision. As a covert ploy to manipulate the outcome of litigation, the practitioner needs to exercise discretion, fundamentally parasitic upon the propensity of each court to interpret and apply legal rules in a singularly nuanced manner. As each strand of discretion is introduced, the attendant risk of unpredictability is compounded. Scant wonder that any solicitor newly initiated to this juristic jungle may appear bewildered. Only with experience is the acumen gradually attained to calculate the odds of this bizarre lottery. 

Discretion Undermines the Generality of Statutes

Closely related to the liberal model of the rule of law is the contention that the exercise of state authority, including that of the judges, should take place subject to generally applicable and enduring statutes. Liberalism distinguishes the generality and objectivity of statutes and (in the common law context, long-established constitutional conventions with the force of law), which are supposed to apply to all citizens equally, from ad hoc administrative “measures”. The latter are directed to specific contingencies and groups, such as ad hoc redistributive windfall taxes imposed, perhaps retrospectively, upon the extraordinary profits of banks or oil companies (Schmitt, 2004 p 17).

General statutes are supposed to realise liberalism’s ideal of a closed and gapless system of constitutional legality of all state actions under the rule of law, which is respectful of the individual’s basic civil and political rights (Schmitt, 2004 p 9). A statute, constitutional convention, or longstanding common law principle of individual liberty, thus has a special place in liberal thought as an: “authoritative legal norm to which all else must be subjected” (Bendersky, 2004 p 22). As an expression of the supremacy of parliamentary sovereignty, liberalism gives general statutes such a priority that, in the event of any conflict, they can even negate the results of a democratic referendum relating, for example, to the meaning and scope of parental rights (Schmitt, 2004, p 73).

For instance, the Children Act 1989, operative from 14^th October 1991, introduced radical changes in the law relating to children, both in a private and public law sphere. For the first time, it became possible to locate “the law” in one authoritative text that overrides all other potential sources at variance with its fundamental categories. No longer are litigants, lawyers and the courts forced to trawl through a multiplicity of statutory authorities.⁽³⁾ In disregard of the previous notion of parental “right”,⁽⁴⁾ recognition of a legal concept of parenthood forms the cornerstone of the Act’s governing provisions. Entitlement or power to control or regulate the conduct of children is recognised simply as a necessary concomitant of parental duty as applied in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. 

By contrast, the administrative measures of a welfare state are believed to open the door to officials exercising a distinctly discretionary form of governance, which is based largely upon their own political values and public sector ideologies (Schmitt, 2004 p 4). For instance, in the realm of family law, the value-judgments of the following public sector officials can clearly exert an influence: social workers; health visitors; paediatric doctors and nurses; police and probation officers; guardians ad litem; court-commissioned expert witnesses (for example, child psychologists); housing officials and primary support charities such as Barnados.

Although dressed up as delegated or secondary legislation, in practice any administrative measures that empower such officials represents an extra-constitutional form of governance (Schmitt, 2004 p, 80). In the field of family law, for example, decisive law-making powers can, through the exercise of discretion and personal command, be delegated to the micro-sovereignty of various public sector officials via extra-legislative bodies, such as the Child Support Agency and the Human Fertilisation and Embryology Authority.

 

In such delegations, liberals typically claim that constitutionally problematic forms of discretion are being multiplied. Not only can the original ministerial decision to grant delegated powers manifest excessive discretion, but so too does the manner in which state officials exercise these delegated powers. For instance, with respect to fertilisation and embryology issues, feminists have argued that gay women in stable relationships have suffered from the heterosexual bias as regards eligibility to IVF (Woodward, 2006, 217-222; Dower, 2001). At both levels, the wide scope of discretion means that the strict limits imposed by classic liberal models of the rule of law, which prioritise governance through clearly defined and generally applicable statutes, are disregarded.

Discretion Challenges Appropriate Conceptions of Law and Values of Legality

Schmitt notes the rise of liberalism has been associated with the assertion of a narrower definition of law as an autonomous and closed system of rules. This is because other social and political elements, which prior to the emergence of liberalism were generally considered essential such as sovereign decision and re-establishing of social order, or sub-cultural institutional orders challenged by a dispute, have been eliminated (Schmitt, 2004 p 50). Without a symbiotic interrelationship between court and, for instance, family, law and society, the one is arguably reduced to an arid sterility, whilst the other is condemned to subjugation by a regime indifferent to the ebb and flow of real-life values. In other words, family law necessarily draws upon the pre-existing and independently constituted “concrete order” of family life, as this is being concretely lived and experienced by family members.

 

A good illustration is the “no order” principle in the Children Act 1989 s 1(4), precluding any order under the Act save where the court concludes that making an order would be more beneficial to the child than none at all. Effectively this is a statutory presumption of “no order”, which preserves the pre-existing informal governance of the family, primarily designed to avoid any unnecessary polarisation of the parties’ respective attitudes and the consequentially deleterious effect upon the child. Wherever family law statutes contain references to: “reasonable in all the circumstances” or “suitable person” or “unfit parent” or “best interests of the child”, then those applying the law have no option but to draw upon values and standards of the family as a concrete institutional order (Schmitt, 2004 p 50). Ostensibly cognisant of the family as an institution with “a concrete inner order, discipline and honour.” (Schmitt, 2004 p 54), Schmitt would doubtless have celebrated the “no order” precept in vindication of his assertion that certain human associations “can be reduced neither to the functionalism of predetermined laws nor to contractual obligations”. Instead, such an institution properly resists “every attempt at complete standardisation” (Schmitt, 2004, p 54). 

 

Schmitt’s analysis of liberalism further suggests that, insofar as officials strictly respect the requirements of the rule of law, then their actions and decisions are expected to exemplify principles of strict “legality”. This is typically defined as an exclusively rule-based type of decision-making involving the application of clear and precise norms in a manner that is itself governed by the meta-rules of precedent, statutory interpretation, sentencing guidelines and so forth. For example, in family law, the interpretation of the rule concerning the “best interests of the child” under the Children Act 1989 is to be interpreted by reference to a non-exhaustive “checklist”. This is primarily drawn from previous case-law, albeit with increased emphasis upon the wishes and feelings of the child. In short, standards of legality require that judges apply statutory rules in an objective manner consistent with various meta-rules designed to further minimise the scope for discretion. Indeed, for Schmitt, the irony is that these are attempts to curtail discretion through meta-rules but actually multiply it.

 

A strictly rule and meta-rule based type of decision-making is supposed to represent a defining characteristic of a properly functioning modern constitutional state. This feature sets it apart from the comparative “lawlessness” of both earlier feudal regimes and more recent socialist governments (Schmitt, 2004 p 18). For example, liberalism requires a modern family court to renounce outcome-driven, moralistic or ad hoc forms of decision-making, in which judges decide in favour of whichever party they find most deserving. The rule of law is reinterpreted to mean the complete domination of the legal system by liberalism’s own preferred definition of law: law as a closed and politically independent system of generally applicable and objective rules. Hence, Schmitt claims that, in order to comply with liberal standards of legality, any decision concerning the legal rights and obligations of specific parties in a concrete case must be clearly: “mediated by pre-established, general norms” and fully and exclusively manifest the rule of these norms themselves (Schmitt, 2004 p 5). 

This important point can be vividly illustrated by reference to the following example drawn from one of the author’s experiences as a family law practitioner. After a period of considerable marital stress, the mother of two young boys was driven to such despair that she vacated the matrimonial home, leaving the children temporarily with their father until she was able to secure suitable accommodation for them. The father was vehemently opposed to contact, claiming his wife had subjected the children to physical and emotional abuse prior to the separation. Following her application to court for resolution of the dispute, a CAFCASS Report was commissioned, during the course of which the father renewed and amplified his allegations concerning the mother’s prior treatment of the children. The boys likewise recounted incidents supposedly supportive of the father’s insinuations. The interim report commented upon his intense hostility towards the mother, whom it transpired had commenced a relationship with another man.

At the preliminary hearing, the Circuit Judge charged with conduct of the case saw the children privately in chambers where after, in the absence of any direct evidence from either of the parties but with the benefit of the initial findings of the reporting officer, lambasted the father for his refusal to permit contact. Emphasizing the virtually inviolable bond between mother and child, the judge cautioned that this was to be severed only in the most extreme circumstances. After expressing reservations about the veracity of the father’s allegations, emergent de novo following the parties’ separation with little apparent factual basis, the judge assessed the presumption of contact to be unassailable. Nothing would justify termination of the natural relationship between mother and children.

Pending the final hearing of the matter, the original judge fell ill and the case was assigned elsewhere. During the subsequent trial, it was immediately apparent that the replacement member of the judiciary favoured a diametrically opposite approach. For his part, no presumption of contact could be brought to bear. The welfare principle did not connote that children would suffer if deprived of contact with either of their natural parents. If the father’s allegations were deemed credible, then contact should be terminated. The mother’s assertion of undue influence was untenable; their resistance to contact was solely attributable to their own experiences, not a distortion of events implanted in their minds by a man prepared to deploy any means at his disposal to eradicate from their lives a woman whom he had come to hate. Residence was, therefore, granted to the father, contact being confined merely to indirect communications with the mother in the form of occasional cards and gifts. This effectively severed the maternal bond between mother and sons, an outcome both drastic and devastating. Differing judicial interpretations of the implications of the “welfare” principle here proved crucial, not only in a theoretical sense but also in determining the future of two young children, pawns in an uncompromisingly brutal battle between their parents.

One statute, one welfare principle, one CAFCASS Report, one scenario; on this basis, liberalism would assert the Act was insulated from the subversive influence of discretion. On this idealised view, the norms embodied within the statute are articulated with sufficient precision that no substantive departure from the obvious denouement is feasible. Discretion is, in practice minimised by standards of legality and the impact of meta-rules. Yet, as shown above, the identity and subjectivity of the judge does inescapably yield divergent interpretations of “the same” fundamental legal principle. For Schmitt, the impact of “who decides” spills remorselessly into every juristic arena. This inexorably flows from recognition of the independent judge:

“Not as a normativistic but rather an order concept, indicative of an ‘order system of officials and authorities. That this very concrete person is the duly appointed judge, results not from rules and norms, but from a concrete judicial organisation and concrete judicial organisation and nominations.” (Schmitt, 2004 p 51)

On this basis, and indeed as practical experience seemingly affirms, definition of the judicial role as a mathematically precise science is naive. For a judge is inevitably imbued with a multiplicity of external life experiences, arguably inseparable from the decision-making process executed within the precincts of the court. Social, religious, political and psychological orientation create a unique personality inextricably bound to a concrete mode of existence, and way of belonging to a legal culture, this inevitably influencing any subsequent exercise of discretion. This extreme but by no means unique illustration nicely captures Schmitt’s point that it is simply impossible for a realistic form of legal analysis and explanation to neutralise the question of “who decides”. However attractive compartmentalisation of the judicial function might superficially appear to liberal constitutional theory, it is untenable to expect human beings to achieve total detachment from those very traits that comprise whatever passes for their intrinsic humanity.

Similarly, liberalism demands that public officials, working for example in the social security, planning or housing departments of modern welfare state bodies responsible for the application of specific legal provisions, such as CAFCASS’ role as the officially designated agency charged with mediating family disputes, should do “nothing other than what a valid norm permits jurisdictionally” (Schmitt, 2004 p 4). The result of applying the liberal’s ideal is to redefine instances of judicial and official discretion in terms that make them appear illegitimate. Examples of discretion and personal judgment are reinterpreted as the constitutionally illicit intrusion and eruption of political and/or moral and/or religious values into what should be a strictly non-political legal process (Schmitt, 2004 p 64).

On this basis, “constitutional liberalism” remains firmly focused upon the idea that decision-making involved in the application of legal measures to specific factual situations is valid if, but only if, the resulting decision is based exclusively on the legally correct identification of the objective meaning and scope of the measure itself. With respect to the previously discussed scenario, the only valid decision would be one that was based exclusively upon the strictly legal meaning of the “welfare of the child”. Any reasonably competent lawyer would have had to arrive at an identical conclusion because the question of “who decides” is essentially irrelevant. In other words, it assumes “a decision in the legal sense, must be derived entirely from the content of a norm” (Schmitt, 2004, p 6). Faced with a clear and unambiguous legal requirement or test, a legal decision in favour of party A is said to be justified if the facts of the dispute credibly presented by A can be clearly shown to have fully met these given legal requirements.

Furthermore, such a conclusion must have been virtually inevitable providing the decision-maker correctly identified and complied with the relevant law and facts. Thus, according to the liberal model, a party who is dissatisfied with the result of official decision-making has no grounds for complaint if it can be shown that, after the determinate core of the relevant legal measure was objectively defined and understood, the decision-maker was compelled, by the strict logic of the law itself, to arrive at that decision. The decision is a correct one insofar as any other “reasonable” decision-maker, faithfully applying the objectively “correct” legal tests to the properly identified “material facts” of the case would have had to arrive at the same conclusion. In other words, proper legal analysis must exemplify a type of rational judgement grounded in a “correct” (that is conventional) identification of the “relevant” law, combined with an equally “correct” interpretation of its determinate meaning and scope of application.

Where a specific decision fails these tests of legality, the assumption will be that it stems from the constitutionally problematic intrusion of an illicit and arbitrary form of discretion. Hence, judges who choose to allow their decisions to be shaped by extra-legal factors are refusing to deal with the “relevant law” and the facts and circumstances of the case as these really are. Instead, such wayward judges are guilty of reinterpreting both the meaning of the law and the legal implications of the material facts of the case in question to accommodate their own subjective sense of what they believe these morally or politically “ought to be”. As an intrusion of unwarranted subjectivity, discretion is thus as inappropriate to objective legal analysis, as either moralistic or religious analysis would be for those responsible for the task of scientifically ascertaining the causes of a disease or any some other natural phenomena.

In short, liberalism insists that governance should consistently exemplify standards of legality, defined as strictly rule-governed modes of decision-making in which the decision-maker refrains from allowing anything other than the legal implications of the rules themselves, self-regulated by meta-rules, to determine the outcome. Discretionary decision-making is condemned as a cavalier disregard for this imperative involving the substitution of prohibited determinants for those which judges and officials should draw exclusively upon. This point has been illustrated by reference to the family law scenario involving conflicting interpretations of the meaning and implications of the “welfare principle” by two different judges hearing the same case.

Discretion Introduces and Aggravates Indeterminacies Within Legal Doctrines

Liberalism insists that, within a modern liberal regime characterised by the rule of law and an independent judiciary, the meaning of legal norms must be considered to be largely “determinate” that is, definable, stable and fixed. Indeed, the determinacy of legal doctrines positively reinforces the rule of law. This is because state officials, including judges, are positively required to adhere to pre-defined, precise and clear standards, which allow little scope for discretion. As Scheuerman notes:

“Thus, in a liberal regime, the fundamental "rules of the game" should take the form of a written constitution; normal legislative activity should issue in clear, general, and stable rules; and courts should possess sufficient independence to assure that government (and, especially, the state administration) coheres with the law. At least in traditional liberal jurisprudence, judicial discretion should be kept to a minimum, since extensive judicial prerogative is inconsistent with a fundamental commitment to government based on predictable legal norms.” (Scheuerman, 2004, p 6)

For example, a liberal perspective would insist that the “welfare principle” in family law both is, and should be, essentially determinate to the point where it is possible to define precisely what it means in any particular case. Schmitt claims that the liberal’s approach to official discretion assumes that legal rules and neutral procedures for their application, i.e., “meta-rules”, are generally determinate, and that such determinacy ensures the possibility of standards of legality. Legal norms and neutral rule-based procedures, that is doctrines of precedent, rules of statutory interpretation, etc, both can and should restrain official discretion providing they are “determinate” in the sense of being clearly defined and unambiguous. For example, the “welfare checklist” in the Children Act 1989 purports to provide definitive answers to aid the resolution of any ambiguities within the substantive sections of this Act. It follows that they must possess sufficient determinate content to be capable of retaining a core of fixed meaning across every actual and potential application to a range of different factual contexts. In other words, optimal restraint of discretion is achievable by means of the enforcement of liberal conceptions of legality premised upon the deployment of generalised, objective legal norms. The latter allegedly possess a fixed and determinate core of stable meaning, further supported by neutral procedures and meta-rules to guide how rules should be applied to facts, including, for example the “welfare checklist”. The legality of decision-making depends upon subsuming the unique facts and claims of the particular case under general rules, applied neutrality as such. For instance, it should be possible to take any actual or hypothetical dispute involving family relations and property and to provide a definitive answer to the question of the parties’ respective rights and liabilities.

For liberals, the presumed determinacy of legal doctrine makes it possible for the legal system to deploy a distinct cluster of legal methods to identify a core of general, stable and intelligible meaning within specific areas of legal regulation. In turn, once identified, an understanding of the objective meaning and scope of the legal rules in question makes it generally possible to clearly ascertain the single correct answer to any actual or potential legal problem. This can be ascertained irrespective of the subjectivity of whoever is undertaking this analysis of law.

Since such power stems from general laws that are themselves impersonal, precisely defined and determinate (Schmitt, 2004 p 23), the application of law to factual situations should be relatively straightforward. Certainly it does not require the exercise of discretionary judgements, least of all a type of personal command (Schmitt, 2004 p 3-4).

On the other hand, an official’s decision which is grounded in, and explicable wholly or partly by reference to, the variable subjectivity of the decision-maker, and this is clear because it departs from the objective requirements and test of the determinate measure itself, remains problematic. From the perspective of liberal ideals, the manifestation of administrative discretion is potentially a dictatorship unbounded by norms and without spirit” (Schmitt, 2004 p 20). It represents an essentially “arbitrary” exercise of unwarranted and unnecessary discretion that pollutes and destabilises the determinate core of settled meaning. Schmitt gives the example of affronts to liberal standards stemming from allegedly “arbitrary” forms of judicial sentencing that fail to “faithfully enforce statutes”, or where judges personally invent new criminal offences not based upon prior statutes, established rules and strictly legal principles (Schmitt, 2004 p 20). With reference to family law, the original judicial importation from America of the “new-model” constructive trust and its subsequent displacement by principles of estoppel have transformed areas of family law practice independently of any parliamentary intervention.

Schmitt believes that liberals follow Hobbes in believing that the only alternative to legalistic decision-making governed by given rules and neutral procedures and meta-rules is a return to a “state of nature”. That is, a condition of unimaginable strife, desperate disorder and insecurity of both life and property “an orderless struggle of all against all” (Schmitt, 2004 p 62). Liberalism pre-empts a collapse into such anarchy and law of the jungle by restraining discretion through its insistence upon the identification of the determinate meaning of legal rules, meta-rules, and the scope of their applicability. This approach thereby raises itself up to the vital and elevated position of “resolute defender” of threatened legality, order and security.

To counter this threat, each and every example of law application, no matter the degree of factual variation and uniqueness in the circumstances, both can and should be subsumed as an instance of a general ‘type’ of case for which standardised rules apply.

“Every law is reduced to the norm, which is separated from the circumstances; the rest is ‘mere fact’ and the opportunity for factual ‘confirmation of the law’” (Schmitt, 2004, p 62).

In other words, strictly legal analysis should only address the facts of any individual law report concerning, for example, family disputes over children insofar as the reason for the decision (ratio decidendi) gives effect to a more general rule of family law doctrine. Students of family law are supposed to “learn the case-law” only to illustrate family law doctrine, not the vagaries of judicial practice in this area.

By contrast, the norms themselves, the meaning and scope of the “welfare principle”, for instance, are deemed to exist as abstract, general rules of legal doctrine independently of any conceivable case of their application during a specific trial. These norms occupy an elevated realm allowing them to “hover over”, as it were, each and every conceivable factual context of application, without any need for modification through the exercise of judicial discretion in the light of the practical implications of their deployment. Hence, there should be no question of judges having to exercise discretion concerning the identification or adaptation of the relevant norms. This is because these exist, in an objective, already-defined state, prior to every instance of their potential application. Hence, such norms and are already “on hand” for judges as objectively given rules, tests and requirements simply waiting to be applied in a more or less straightforward, even mechanical fashion, which at least largely dispenses with the need for the exercise of discretion. However, and as Schmitt notes, this ideal of legal certainty can be unrealistic in practice, as illustrated by the following scenario.

The parents of two very young children, a girl aged 4 years and a boy of one, separated after a fairly brief marriage. Desperate to exclude the father permanently from the children’s lives, the mother was nonetheless aware that this was unlikely to be viable. Shortly afterwards, she made assertions that her daughter was exhibiting unusual behaviour, possibly indicative of sexual abuse. On referral for examination to the local hospital, medical experts scrutinised the child’s conduct, concluding that evidence of sexual interference was present. In reliance upon these findings, the court granted the father supervised interim contact, there being probable cause to suspect him of the alleged violation. The child was permitted, however, to have unsupervised contact with her paternal grandparents and mentally disabled uncle. This arrangement quickly foundered when the mother claimed the girl to have re-enacted incidents, suggestive of abuse by these members of the father’s family. With leave of the court, the child underwent observations by a reputable psychologist instructed on behalf of the grandparents. The resulting report indicated that far from the girl having suffered sexual abuse she had, in reality, sustained serious emotional harm whilst in her mother’s care. In short, the child had been indoctrinated to a degree whereby the behaviour she displayed was a consequence of “taught” rather than empirical experience.

In reliance upon the initial findings of CAFCASS and Health Authority medical experts, the court was originally supportive of the mother’s contention of sexual abuse. Whether or not her early assertions were well-founded, the confidence the Circuit Judge engendered within her, in exercise of his discretionary acceptance of the expert evidence at this stage of the proceedings, impelled the mother not only to reaffirm but also to augment and extend her allegations to encompass the husband’s father and brother. However, after reading the recommendations of a psychologist commissioned on behalf of the paternal family, the judge elected to question this “expert” in chambers in the absence of the parties or their solicitors. Clearly impressed by her opinion and cognisant of her apparent expertise in the sphere of child abuse, the court embarked upon a staggering volte-face. With little overt transparency, the mother was ordered to produce her daughter on a regular basis at the psychologist’s workplace to facilitate the restoration of unsupervised contact between father and child. At this stage, the court had neither heard nor solicited oral evidence from any of the involved parties. The judge chose to found this interim order on the basis of the opinion of one psychologist whose recommendations were seemingly arbitrarily preferred over the earlier findings of health professionals, acting ostensibly only in the child’s best interests. Interim contact proved disastrous, the mother being appalled at the perceived risk of her daughter suffering further abuse. Her persistently obstructive campaign culminated in a complete cessation of contact and ultimately a protracted contested hearing.

Residence was finally awarded to the paternal grandparents, with unlimited contact to the father. In contrast, the mother was granted restricted contact on a rigorously supervised basis. With little more than unsubstantiated intuition as its guide, the court had adjudged the conclusions of one remunerated expert witness to be incontrovertible. This discretionary stance determined the entire course of the proceedings and beyond that the future lives of the parties, their extended families and two vulnerable children, too young to testify on their own behalf. The court presumably applied the welfare principle, to the facts before it, in accordance with the criteria stipulated in the section 1(3) checklist.  However, in so doing, did the latitude for deployment of discretion implicit within it, truly serve the best interests of these children? More specifically, was the outcome wholly or in part attributable to the subjectively exercised command of this particular judge? If this inquiry elicits an affirmative response, it perhaps lays bare the inherent flaw in the “closed-norm” system of law to which liberalism pledges allegiance, for if norms cannot be applied with totally pre-ordained certainty, then surely they forfeit the designation liberalism accords them. Unveiling of the elasticity of the norm signifies the inevitability of discretion and, with it, the incalculability this engenders.

Once a device, such as the section 1(3) “welfare checklist”, is deployed within a statute, application of the criteria deemed most pertinent to the factual scenario are scarcely likely to constitute some regimented formulaic process, immune from deviation or discretion. If the welfare of the child is determinable by reference to seven competing factors to be judicially sifted and weighed, as enumerated in the “welfare checklist” found in the Children Act 1989 s1(3), numerous permutations inevitably arise all significantly impinging upon the outcome of the process. The attendant unpredictability is immeasurably compounded when the resolution of the dispute is distilled from the respective contributions of CAFCASS officers, social workers and other expert witnesses. Further, the relative importance attached to the various criteria within the welfare checklist is then filtered through any possible pre-conceptions and opinions of the presiding judge. Whilst arguably, this plethora of expert and judicial evaluation may dilute, counteract or negate the prospect of individual subjectivity, the incalculability of outcome is, in contrast, susceptible to exacerbation by the unavoidable selection between these potentially competing stances. Choice entails discretion and this ultimately rests with the judge.

Discretion Undermines Certainty Within the Legal System

According to Schmitt, liberalism generates a distinctly positivistic view of law and the preconditions of a stable, and hence predictable, type of legal order based upon a closed and autonomous system of coherent rules and principles (legal norms) (Schmitt, 2004 p 65). For Schmitt, “individualistic legal-certainty” with respect to both the meaning of legal rules and reliable predictions concerning how these rules will be judicially applied to a range of actual or future factual situations, represents a key value and imperative (Schmitt, 2004 p 66. 90).  It provides the basis for other characteristics of liberal thought, including “well-founded” attempts to strictly limit the legislature’s deployment of “general clauses” in statutes, such as references to “good faith” and “reasonable in all the circumstances”. This is especially evident in the context of applications for financial provision, on marital breakdown, within section 23 of the Matrimonial Causes Act 1973, where it is almost intrinsic to the process that the judge will weigh various factors in the balance to establish what is deemed a fair and reasonable outcome in the particular circumstance of each case. Such terms are deemed to be problematic because their single correct meaning of the rules within a closed system of strictly internal norms cannot be pinned down in advance with any degree of certainty (Schmitt, 2004, p 90-91):

“From the standpoint of the earlier positivist belief, such warnings and worries [re general clauses] are well-founded. For that belief engendered the idea that only the combinations of legislative decision and rule that forms this positivism guarantees legal certainty. But with general clauses, the in-itself complete, gapless law, which is the ‘foundation of certainty’, escapes” (Schmitt, 2004, p 90).

Schmitt further claims that such general clauses represent the “cuckoo’s egg” in the nest of “the liberal legal system” (Schmitt, 2004 p 91).

According to this model, legal norms occupy a completely different and more elevated plane than mere factual events and actions. This explains why no factual event, no matter how violent or physically destructive, can destroy the continuing validity of a general norm. Liberalism relies upon this distinction between norms and facts to justify its assertion that the application of legal provisions to facts both can and should operate as an almost mechanical process, akin to a train company adhering to the stipulations of its own published timetable, a spreadsheet calculation, or even purchasing bottled drinks from a vending machine (Schmitt, 2004 p 53). In each case, the users of the system who conform to its requirements can reasonably expect a measure of certainty of outcome. This is because each system follows set rules, adherence to which regularly trigger standardised results in an orderly, and hence predictable, fashion. For example, when deciding upon financial provision ancillary to marital breakdown, the now-dated “one-third” rule meant that, in principle, lawyers advising divorcing spouses could predict in advance the likely redistribution of family assets. For liberals, certainty of operation is, therefore, both possible and highly desirable. It remains a prized quality of a reliable legal system: one that needs to be defended against its destabilisation through the intrusion of the discretionary exercise of discretionary powers, which potentially introduce all manner of subversive subjective variables.

Certainty is deemed a central value because it ensures that legal transactions designed to achieve specific purposes, ranging perhaps from family provision to tax avoidance, can in fact be generally relied upon to achieve those ends. However, the countervailing notion of uncertainty is all too often introduced into the juristic arena, as illustrated by the following example drawn from family practice. Injunction proceedings are instituted under the Family Law Act 1996 and fall within the ambit of “any family proceedings” as defined in section 8 (3) of the Children Act 1989. A husband and wife appeared before a court in injunction proceedings arising from alleged domestic violence. In seeking to resolve this dispute, they could scarcely have foreseen, however, that the judge would see fit to conduct an ad hoc interrogation of a paternal relation present within the precincts of the building and award her interim residence of the two children of the family. The subsequent decision to vest parental responsibility in this woman, the children’s great-aunt, ill-equipped both financially and practically to cope with the rigours of caring for boisterous young boys for however brief a period, caused insecurity and distress for them, not to mention the intensification of hostility between the parties themselves. When the children’s father subsequently persuaded his aunt to cede their care to him, this action generated antagonism and resentment on the part of the mother, purportedly a victim of his previous physical abuse. The consequential pandemonium rapidly precipitated a resumption of acrimonious proceedings. The judge’s discretionary intervention; his identification and selection of section 8 as the appropriate way forward, followed by the unorthodox imposition of a residence order in favour of a relative fairly distant to the children, was possibly designed to shock the parties into a more conciliatory and reasoned approach. Sadly, it misfired to the ultimate detriment of those very children whom the Act is supposed to protect. This scenario is not, we believe, atypical and numerous other instances that illustrate the same point could be included.

The explicit conferral of implicitly discretionary powers upon the court, namely identification and deployment of a statutory provision not strictly related to the issues in dispute, therefore connotes risk and with it a perhaps unacceptable level of arbitrary selection. The importance that liberals place on the interrelated values of legal certainty, the alleged “determinacy” of doctrine, (discussed further below), and the resulting predictability of law, sets up an ideal of legalistic decision-making, which is seldom borne out in practice (Schmitt, 2004 p 65). This ideal claims that, properly understood, law consists of a closed system of rules, underpinned by even more general principles, which, because of their comparative autonomy vis-à-vis every instance of their application, can be identified with a high degree of certainty (Schmitt, 2004 p 65).

Certainty of operation is, of course, only possible if the rules themselves are both knowable and widely understood, at least by those who need to know them. Law, which liberalism interprets as an essentially orderly and autonomous phenomenon, can be known with comparative certainty, akin to mathematical rules. For example, it should be possible to precisely determine the pre-conditions for validity of a marriage with as much exactitude as the calculation of a child support entitlement based upon a standard formula. Legal certainty can be achieved because it is possible for suitably trained lawyers to identify the essence of law as consisting of a system of autonomous and internally coherent rules. These rules give effect to a small number of wider principles unaffected by merely contingent external factors. Therefore, it should be possible, in principle, to identify and articulate what are the legal rules and principles of any given area of family law, such as child residence disputes, without reference to any specific factual circumstances. An analogy would be the ability of a school student to learn the arithmetical rules of addition, subtraction and multiplication in the abstract, that is, without reference to any physical objects or other material illustrations.

Because, for liberals, judges are bound to strictly follow these clear general rules and principles, there will always exist a single correct answer to any legal problem, even where its discovery is challenging and requires a rigorous application of traditional “legal methods” to filter out invalid interpretations. The sole proviso is that judges must properly interpret and apply these norms, which, under the principle of legality, are themselves intended to be followed strictly in a rule-governed, and hence orderly, manner. Where these requirements are complied with, lawyers can be expected to advise their clients on their legal position with comparative certainty that, if legal option A is chosen, then it will have X not Y legal consequences.

For Schmitt, the crucial point here is the underlying model of law as essentially a rule-governed, and hence orderly, system of rules from which all sources of uncertainty, including empirical contingencies, have been rigorously expelled. Law is thus

“predetermined, general rules and statutes, which are independent of the concrete state of affairs, every manifestation of legal life – every command, every measure, every contract, every decision – turns into a norm. Every concrete order and community disintegrates into a series of effective norms, whose “unity” or “system” is, in turn, only normative. Order essentially consists of the fact that a concrete situation corresponds to general norms by which it is measured.” (Schmitt, 2004 p 52).

According to this approach, the only legally significant aspect of disputes between, for instance, family members consists in how such situations can be re-interpreted in terms of the doctrinal rules of family law, and those requirements and tests for specific remedies contained in these norms. As already noted, the latter is defined as a closed and generally coherent system of rules and principles. This system is supposed to be utterly detached from the clash of interests, compromise agreements within the family or even the distinctive internal subculture of the family as a concrete institutional order (Schmitt, 2004 p 94). Whilst the norms themselves are presumed to be “in order”, a seamless web lacking contradictions or gaps, the existence of a clash of material interests between the parties to a family dispute, and hence factual “disorder” in the field of application, is deemed to be entirely irrelevant. Their only relevance is as “evidence” for an argument relating to the applicability of a particular legal norm and remedy, the result of which is to pronounce a certain action, such as a refusal of contact, as either lawful or unlawful (Schmitt, 2004 p 81).

All valid norms for as long as they are valid, are naturally always ‘in order’; the disorder of the concrete situation, in contrast, does not interest the normativist who is only interested in the norm. Viewed in this [legalistic] way, the concrete state-of-affairs can never in a normativist sense, be disorder as opposed to order.” (Schmitt, 2004 p 52)

Such “order” persists because the answer to any legal issue raised by family and other disputes both can, and should, be arrived at exclusively by reference to the neutral tests and objective requirement of the norms themselves (Schmitt, 2004 p 65), which remain aloof from, and unaffected by the concrete reality of the situation.

For liberals, it does not follow from the fact that the actions of, say, violent and abusive spouses have caused private mayhem in the world beyond the courtroom, that the legal analysis of issues concerning the meaning and scope of domestic violence offences is, in any sense, disrupted by these merely factual events. The question of whether such actions fall inside or outside the remit of a specific section of a particular domestic violence offence can be determined in as calm and objective a manner as other issues regarding obligations under, for example, a separation agreement.  Hence, the offence category remains entirely unchanged by the nature of the factual situation to which it is being applied.

Whereas police officers may have to exercise considerable personal initiative and discretion in quelling a domestic disturbance, it does not follow that judges hearing the resulting family law and criminal cases are equally free to adapt their interpretations to the specific features of the concrete situation in hand. The question of whether a defendant’s actions were lawful or unlawful with respect to the meaning and scope of specific measures, is no more disruptive of the closed normative order, the coherent and unified system of rules, than the issue of whether an incident of non-violent harassment and abuse within the family warrants prosecution. In both cases, certainty is possible because judges can arrive at a single correct answer to such questions providing they apply the objective tests and requirements contained in the clearly identifiable contents of the relevant norms. This is because the “answer” to any distinctly legal question arising during litigation is assumed to be already substantially contained in the objective meaning of the inviolable norms themselves (Schmitt, 2004 p 65).  However, for liberals, certainty in relation to the meaning and applicability of legal doctrine is possible only if those who interpret and apply the law succeed in subordinating their subjectivity to the objective meaning of the contents of these rules themselves, and thereby respect the principle of legality already discussed.

Liberals typically claim, or at least tacitly assume, that doctrinal certainty benefits both stability and “calculability” within commercial and social life, more generally. (Schmitt, 2004 p 65). This, in turn, minimises the costs of litigation because lawyers can generally predict which way a judge would decide a dispute if the matter ultimately went to trial. Hence, the party with the weaker case, a matter that expert legal advisers can definitively identify, is given every incentive to settle legal disputes through negotiation. Hence, liberals can claim that it is vital that certainty characterise both legal doctrine and its meta-rule governed judicial application.

Certainty also has the alleged virtue of not only preserving the integrity and reputation of the legal system, but also enabling calculability and planning within civil society more generally. The model of “normal” social life presupposed by the liberal model is that of a “calculable functioning of human relationships … as a mere function of predetermined, calculable, general rules” (Schmitt, 2004 p 53). One result of a general adherence to clear legal rules is that civil society can operate smoothly in a standardised and predictable fashion. The “trust” that members of civil society rightly place in the reliability, security and robust quality of transactions regulated by, for instance, various family law devices would, it is claimed, be betrayed if discretionary decision-making was allowed to introduce uncertainty (Schmitt, 2004 p 66).

“Insofar as this positivism furnishes a philosophical legal foundation, it leads in the intellectual direction of the interests of an individualistic legal-certainty and appeals to the fact that it would be wrong to disappoint … the expectation, and the ‘trust’ of the legal community evoked through the statute. Therein one beholds the ‘righteousness of positivity’.” (Schmitt, 2004 p 53)

For example, a husband approaching a family law practitioner may, on the basis of a prior separation agreement, assume that in any subsequent divorce settlement, he will immediately be awarded such proportion of the family assets as this agreement specifies and adjust his financial position accordingly. In this context, where judges exercises their discretion to set aside the terms of this settlement, the trust of the husband in the integrity of the earlier legal agreement is likely to be obliterated.

It is precisely because of their adherence to this ideal of law as a unified and closed system of self-sufficient norms that liberals reinterpret manifestations of official discretion as a threat to certainty in both the interpretation and application of law, which the legal system must therefore guard against and counteract. For Schmitt, such manifestations involve a “slipping into the incalculable ‘subjectivity’ of metajuristic considerations” (Schmitt, 2004 p 65), which endanger the legal system’s key values of predictability, stability and calculability. In turn, the subversion of these values wreaks havoc upon those areas of society that rely upon the perceived security, enforceability and reliability of legal transactions and devices. If, for example, judges were constitutionally permitted to exercise unbridled discretion such that each individual case is decided upon its own merits alone through attempts to remedy the disorder or injustice prevailing in the factual contexts of application, then this, liberals believe, would subvert both the integrity and regularity of the entire legal system. This would have potentially disastrous implications for the expectation of certainty.

The liberal emphasis on generally applicable rules objectively applied is, perhaps, akin to adherence to a railway timetable or traffic regulated by traffic lights. This emphasis is clearly designed to preclude discretion and other personalised forms of command. This is not least because such factors introduce an unacceptable degree of subjective variability, and hence indeterminacy, into both the interpretation and operation of law:

“one can say that here not the personal choices of men, but the impersonal matter-of-factness of the timetable ‘rules’, and that this scheduled regularity is ‘order’. The well-regulated traffic on the highways of a modern metropolis offers the best picture of this kind of ‘order’. Here, too, the last vestiges of human rule and choice, as represented by the traffic policeman, appear to be replaced by precisely functioning, automatic traffic lights.” (Schmitt, 2004 p 53)

All manner of supposed extra-juristic factors, any or all of which may be decisive if judges submit to the temptation to resort to a discretionary form of decision-making, must be neutralised to ensure that the application of law remains “on track”, that is determined only by “the obvious, indisputable contents of the norm itself” (Schmitt, 2004 p 65). These impermissible factors include any questioning of the ideological assumptions regarding “normality” and “reasonableness” behind specific legislative measures, or the policy goals pursued by such provisions. For example, the presumption that a natural mother-child bond should act as an overriding factor when deciding child residence disputes. Amongst other equally impermissible factors are all questions relating to the moral, economic and political principles underpinning specific legal doctrines, such as freedom of contract, as well as evaluations of the meaning and value of the object of legal regulation (Schmitt, 2004 pp 65, 94).

Hence, liberalism makes the assumption that the discretionary ‘interventions’ of state officials will always be questionable unless they can be clearly shown to meet at least two decisive tests: First, that these officials are clearly acting with definite and express authority under a specific power, for example, where the recommendations of CAFCASS are compliant with the remit of their authorisation under section 7 of the Children Act. Secondly, that such officials are exercising their decision-making strictly in accordance with the precise requirements of a given set of legal norms or “meta-rules” (rules of statutory interpretation, the doctrine of precedent, statutory guidelines etc), such as the “welfare check-list” (Schmitt, 2004 p 85-86). Where these two vital tests are met, the belief is that the validity of a decision will become explicable not in terms of the subjectivity and personal authority of those who actually decided the case, their ideological background, gender, generation, class, race, economic interests and so forth, but rather in terms of the objective meanings of the relevant norms themselves (Schmitt, 2004 p 18, 65). Our earlier example of the substitution of a judge in a family context is apposite here.

By contrast, Schmitt argues that, for liberals, judicial and other forms of discretion represent a deviation from the normative expectation that legal decision-makers are neither the creative source, nor an amending institution of the law. Instead, they are merely this institution’s dutiful mouthpieces. Such deviation from this key norm unnecessarily introduces elements of uncertainty, contingency and unpredictability into the meaning, scope and practical implications of private rights, including contractual and familial rights. In turn, manifestations of discretion destabilise not only the legal system but also the smooth workings of civil society, including the implications of marital separation (Bendersky, 2004 p 22). In short, on Schmitt’s account, liberalism needs to give certainty and predictability an extremely high priority as goals and ideals for a healthy system of law and well-ordered and stable civil society in which citizens can trust in the reliability of both legal advice and their various arrangements, including family property regulated by law. These, in turn, are some of the key reasons why this approach interprets official and judicial discretion as generally unacceptable. Closely related to certainty of application, indeed its precondition is the contention that legal norms, properly interpreted and safeguarded from discretionary applications, are essentially determinate, or at least capable of being rendered determinate.

Conclusion

Liberalism reinterprets official and judicial discretion as “arbitrary” rule, as administrative lawlessness via the ad hoc application of situation-specific decrees that lack the generality of proper statutes. Discretion can involve the re-writing of legal tests, such as the “best interests of the child”, at the whim of the interpreter to rhetorically justify their subjectively variable definitions of what counts as a “fair result” between the parties. Such arbitrary lawlessness violates appropriate constitutional ideals of legality. Liberalism asserts ideals of constitutionality as rule through general laws enacted via parliamentary due process, following optimal consultation with representatives of civil society, and applied in an objective and neutral manner, in which decisions are based wholly upon, and explicable by reference to, the clearly defined contents of legal norms.

The validity of this legalistic approach relies upon the assumed truth of a series of either/or dichotomies. In each case, liberalism gives priority to one side of these oppositions, negating the validity of its counterpart. Hence, many of the negative reactions to discretion stem from its interpretation as supposedly falling on the impermissible side of these various oppositions. That is, as impermissibly ad hoc, subjective and unfit for consideration as a “strictly legal” academic topic. As demonstrated above, it has proved possible to illustrate a number of Schmitt’s points by drawing upon examples from family law practice. Although we suggest Schmitt’s diagnosis of liberalism and its assumptions contains some challenging insights, the task of evaluating the wider implications of his critique of liberalism will form the subject of later research.

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