ABSTRACT

Let us call those who adhere to the view that there is always one uniquely correct answer proponents of a monistic view, and let us call their opponents proponents of a pluralistic view. Now it is clear that there are legal questions with regard to which there is no dispute: proponents of the pluralistic view concede that there are legal questions which yield only one correct answer. Three conditions have to be satisfied simultaneously: (a) there must be a clear, unequivocal norm; (b) the legal principles and precedents which are applicable to the case at issue must be clear, unequivocal and consistent with each other; (c) the case at issue must be clearly and unequivocally within the limits of (a) and (b). Proponents of the pluralistic view concede that there are cases, indeed the great majority of cases, which satisfy these three necessary conditions. However, at the same time they claim that it is inevitable that at least in some cases, one or more of these conditions will not be met. When this is so it does not mean that anything goes. Norms, principles and precedents from other fields of the law preclude various otherwise-possible solutions and serve as constraints that must be taken into account in the process of reaching a decision. However, in this case there is no one uniquely correct answer which a litigant has a right to demand. As against this position stand adherents of a monistic view. They too have to make concessions to their opponents. They do not claim that every judicial decision is the correct one. Obviously this is not the case. Moreover, they concede that in some cases, what have been termed 'hard cases', we might not be able to demonstrate the correct answer at all. But, they claim, the fact that one cannot demonstrate the correct answer does not mean that it does not exist. Much of the attack levelled against the monistic position concentrated around this last point, which seems very much like a metaphysical belief. In any case the monists hold that a litigant is always entitled to a specific ruling and that it is the task of the judge to discover if possible this uniquely correct ruling.