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Is it ever possible or desirable for a judge to apply the law objectively to the facts of a case?

Is it ever possible or desirable for a judge to apply the law objectively to the facts of a case?

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An essay for the 2011 Undergraduate Awards (Ireland) Competition by Mena Hughes. Originally submitted for LLB Law at Queen University Belfast, with lecturer Dr Sara Ramshaw in the category of Law
An essay for the 2011 Undergraduate Awards (Ireland) Competition by Mena Hughes. Originally submitted for LLB Law at Queen University Belfast, with lecturer Dr Sara Ramshaw in the category of Law

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Published by: Undergraduate Awards on Aug 31, 2012
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04/16/2014

 
Question:Is it ever possible or desirable for a judge to apply law objectively to thefacts of case? This paper attempts to critically analyse the role of judges whileconsidering the theories of Hart and Dworkin. A selection of relevant legalprinciples such as the rule of law and legal reasoning has been chosen todemonstrate how the scales are balanced in this arena.Aristotle said “
the law should govern
” and those in a position of powershould be “
servants of the law
”.
1
This was a rigid interpretation of the lawand of the role of judges. This paper will demonstrate that it is possible
1
Keyt, D, Miller, F,
 A companion to Aristotle’s politics
, (1991), Cambridge. Blackwell.
1
 
and in some cases desirable for a judge to apply the law objectively to thefacts of a case. It will also be argued that it is more desirable for judges tobe able to use their discretion rather than, as Aristotle believed, just applythe law rigidly. The perspectives of theorists HLA Hart and Ronald Dworkinwill be introduced and critically analysed while discussing important legalprinciples such as the rule of law and legal reasoning. A discussion will beincluded indicating that the Hart and Dworkin theories are not entirelydissimilar but in fact have similarities but propagate different priorities.In easy cases a judge may be able to look objectively at the facts of a caseand apply the law accordingly. However, what can be termed an easy casedepends on certain factors. Firstly, the appropriate rule needs to be clearlyestablished. Secondly, the rules need to be clearly interpreted in order forit to be applied to the relevant facts of the case.
2
If this can be done thenit may be classified as an ‘easy case’ and it may be completed without anydisagreement or controversy. For example, burglary is an offence whichmay be classified as an easy case. If you enter a building and stealsomething that does not belong to you then you will be convicted of burglary. The legislation is very clear and defined in this area of criminallaw which states: ‘A person is guilty of burglary if he enters any building orpart of a building as a trespasser and he steals or attempts to stealanything in the building or part of it’.
3
This is a clear example of how a judge would be able to apply the law objectively.In terms of objectivity hard cases tend to involve much more difficulty andcontroversy. Therefore, it is the hard cases which encourage the majordiscussion in this paper. Hard cases can raise debates about whether ornot a judge made an unbiased decision. To delve in to whether or not judges apply the law objectively requires a discussion about legalcertainty. In order to do this the rule of law needs to be explored. The ruleof law is essentially the principle that no-one is above the law. It is thelegal maxim which judges should use to arrive at legal decisions byapplying the law. The primary intention of the rule of law is to avoidarbitrary governance. In other words, judges should be making decisions
2
Veitch, S, Christodoulidis, E, Farmer, L,
 Jurisprudence, Themes and Concepts
, (2007),Routledge. Cavendish.
3
Section 9, Theft Act (Northern Ireland) 1969.
2
 
according to the principles of law and according to the rule of law. Thismeans they should not be injecting their own personal opinions into theoutcome of decisions. The rule of law embraces the concept of objectivityand it is intended to encapsulate the meaning of objectivity. The interpretivist view of Dworkin would be that the concept of the rule of law says nothing about the fairness of the law itself but simply how thelegal system functions. He argues that a judge must make a decisionwhich fits with legal rules and which can be justified in light of the legalsystem which operates. Therefore, it is obvious that Dworkin advocatesthe principle of objectivity and he attempted to showcase this as far aspossible in his writings. Dworkin’s interpretive approach is viewed as amilestone in terms of legal theory. His process of constructiveinterpretation comprises of two elements. The first element envelops theidea that the outcome of such interpretation must fit existing legalmaterials but only to a certain extent. Dworkin believed that this wasnecessary to be able to distinguish the interpretation of existing legalmaterials from the interpretation that is not in legal materials - inotherwords the interpretation that is interpreted incorrectly.
4
Dworkinargued that the interpretation of the law should reveal a sensible andlogical conception of justice and fairness.
5
Hart comes from a positivist perspective on this issue and he described hiswork as descriptive sociology.
6
He believed that judges have the discretionto argue about what the law should be and make a decision about thecase based on a balance of interpretation and legal rules.
7
Hart believedthat the majority of cases are straightforward and the legal rules apply tothese cases without causing any difficulty. In addition to this he arguesthat judicial discretion which exists in legal reasoning is in existencepurely because of the open texture of the law.However, the concept of the rule of law flags up certain issues. Forinstance, is the rule of law a genuine concept? The rule of law is intended
4
 
Dworkin, R,
Law’s Empire
, (1986), Harvard University Press, Ch 3 -5.
5
 
Ibid
.
6
Hart, HLA,
The Concept of Law,
(1961), Clarendon Press p 240.
7
Harris, J.W,
Legal Philosophies
, 2
nd
Ed, (1997), Butterworths.
3

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