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.
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’.
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
Veitch, S, Christodoulidis, E, Farmer, L,
Jurisprudence, Themes and Concepts
, (2007),Routledge. Cavendish.
Section 9, Theft Act (Northern Ireland) 1969.