Do the Judges make or declare law with reference to Hart and

Dworkins Principle
Interpretation of Statutes
FINAL SUBMISSION

Submitted by

Jannavi Singha
DIVISION B, PRN: 16010224095
BATCH 2016 – 2021
OF

SYMBIOSIS LAW SCHOOL, NOIDA

SYMBIOSIS INTERNATIONAL (DEEMED) UNIVERSITY, PUNE

UNDER THE GUIDANCE OF

Dr. Saurabh Chandra

In`

August, 2018
 CERTIFICATE

The project entitled “Do the Judges make or declare law with reference to Hart and
Dworkins Principle” submitted to the Symbiosis Law School, NOIDA for Interpretation of
Statutes as part of internal assessment is my original work carried out under the guidance of Dr.
Saurabh Chandra from July 2018 to August 2018.

The research work has not been submitted elsewhere for award of any publication or degree. The
material borrowed from other sources and incorporated in the work has been duly acknowledged.
I understand that I myself could be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the candidate

Date:
 ACKNOWLEDGEMENT

I would like to express my special thanks and gratitude to Dr. Saurabh Chandra, under whose
guidance; I have been given this opportunity to do this research on the topic, “Do the Judges
make or declare law with reference to Hart and Dworkins Principle”. This research has
taught me about the same, more than ever. Also, I have come up with a lot of improvements in
my research skills. I have made my heartiest efforts on this research, not only for marks, but,
also, to increase my knowledge. I am, really, thankful to him.
 INDEX

1. Introduction
2. Role of judges: A general perspective
3. Hart’s principles regarding judges making law in ‘hard cases’.
4. Dworkin’s principles against judges being given the power to make laws.
5. Understanding Role of Judges through various cases and judgments.
6. Conclusion
INTRODUCTION

A law is an obligatory rule of conduct imposed and enforced by the sovereign. Therefore the law
is the body of principles recognized and enforced by the state in the application of justice. The
law is mainly made by a parliament, a legislative body given power by the constitution to draft
law. However in the last few decades there has been a notion that judges make law. A judge is a
public official appointed or elected to hear and decide legal matters in court. Judges exercise
judicial power. This involves making binding decisions affecting the rights and duties of citizens
and institutions.

For long it has been the received opinion that judges filled in the gaps left by rules by using their
discretion. Positivistic jurisprudence from Austin to Hart placed strong emphasis on the part
played by judges in the exercise of their discretion. "In these cases it is clear", Hart has said,
"that the rule-making authority must exercise discretion, and there is no possibility of treating the
question raised by the various cases as if there were one uniquely correct answer to be found, as
distinct from an answer which is a reasonable compromise between many conflicting interests".1
However, a determined effort has been made lately by Ronald Dworkin, who has cast serious
doubts on the orthodox opinion and has emerged as the principal opponent of Hart. Dworkin's
views have posed a sustained challenge to the positivist account and have received critical
acclaim by leading jurists of the world.2

Although judges have traditionally seen themselves as declaring or finding rather than creating
law, and frequently state that making law is the prerogative of Parliament, there are several areas
in which they clearly do make law. The following paper will throw light on whether judges make
law or merely declare the law.

ROLE OF JUDGES: GENERAL PERSPECTIVE

Presently a judge’s role is not to make law but to uphold the laws which are made by the
parliament. Each law which is made by the parliament must be clearly defined and applied by the
judges in accordance with the cases. While making decisions about a case a judge must follow
the precedent set by higher courts with respect to the situation and conditions applicable, as this
also helps the one involved in the case as they know they will be treated alike and not randomly. 3
Judges must be impartial and strive to properly interpret the meaning, significance, and
implications of the law. Judges must also recognize that justice means more than just interpreting

1
Aashish Srivastava, Do Judges made or declare law, Legal Services India,
http://www.legalserviceindia.com/articles/juju.htm
2
Ibid

3
Answers ltd, 'Do Judges Make Law' (Lawteacher.net, August 2018) , https://www.lawteacher.net/free-law-
essays/constitutional-law/do-judges-make-law-constitutional-law-essay.php?vref=1, accessed 31 August 2018
the law — they must also show compassion and understanding for the people on both sides of
the case.

Argument to this paper concentrates on the belief that in "hard cases" judges can and do create
new law. In the paper, it seems that there are clear indications that judges do indeed create new
law where, for example, existing laws have become outdated or inappropriate. This thesis
essentially stems from the views of the famous common law theorist, Hart, a legal positivist who
sees the fusion of primary and secondary rules as being the determinant of what later becomes
known as a legal system. But another thinker, Dworkin, is vehemently against the law making
power of the judges. For him, there is no law beyond The La”.4 The law is a seamless web in
which there will always be a right answer. This paper will analyse the philosophical Hart-
Dworkin debate on adjudication taking Raz also with them and then apply it to the practical life
in the Indian context to conclude that judges make law out of what they discover in the legal
field.

HART’S PRINCIPLES REGARDING MAKING LAW IN ‘HARD CASES’

If laws are rules you would think that a judge’s job would be easy: apply the rules to the facts
presented in each case. But everyone knows it is not like that. A law might prohibit vehicles in
the park but not explain exactly what counts as a vehicle, so a judge will have to decide if a
bicycle counts as a vehicle for the purposes of the law. Hart agrees with this point: the rules do
not always determine a judge’s decision. When the rules do not determine a judge’s decision,
Hart agrees that the judge’s decision should be driven by sensible considerations rather than a
mindless search through statutes or past cases for anything resembling a rule.5 Hart thinks that
judges are legislating when they reach decisions that go beyond the rules. He agrees that judges
should be sensible when they make these decisions, but that is based on his belief that the
law ought to be sensible rather than a belief that the law necessarily is sensible.6

Hart believes that because statutes and common law rules are often too vague and unclear it is
often inevitable in "hard cases" for a judge to create new law. He talks about the open texture of
law means that are, indeed, areas of conduct where courts or officials striking a balance, in the
light of circumstances, between competing interests, which vary in weight from case to case,
must leave much to be developed. Hart believes that because statutes and common law rules are

4
Aashish Srivastava, Do Judges made or declare law, Legal Services India,
http://www.legalserviceindia.com/articles/juju.htm

5
Michael Green, Hart and Judges, Philosophy of Law, February 7th, 2014, http://carneades.pomona.edu/2014-
Law/0206-nts.shtml
6
Ibid
often too vague and unclear it is often inevitable in "hard cases" for a judge to create new law.
He talks about the open texture of law means that are, indeed, areas of conduct where courts or
officials striking a balance, in the light of circumstances, between competing interests, which
vary in weight from case to case, must leave much to be developed.

H.L.A. Hart explained the difference between easy and hard cases in terms of a distinction
between the core uses of a concept-term and penumbral uses of the conceptterm in adjudicating
cases. The difficulties in interpretation and adjudication are a function of language used to decide
cases. In Hart’s view, legal language is necessarily indeterminate due to the simple fact that it
utilizes general terms: Even when verbally formulated general rules are used, uncertainties as to
the form of behaviour required by them may break out in particular concrete hard cases. 7
According to Hart, there is no decisive rational procedure that can aid us in resolving cases that
are not subsumable under a general rule. The lack of constrains on adjudication can theoretically
be minimal to such a degree that even a coin toss could suffice as the method of choice in the
decision making process.5 This implies that in the penumbral cases subsumption isn’t entirely
dependent on interpretation of the legal formulation, but on the judge’s intellectual abilities, his
ideological positions, canons of interpretation, even whims or any other extra-legal concerns.8

DWORKIN’S PRINCIPLE AGAINST JUDGES MAKING LAW

Dworkin’s purpose in Chapters 2 and 3 of Taking Rights Seriously is clear enough: “I want to
make a general attack on positivism, and I shall use H.L.A. Hart’s version as a target, when a
particular target is needed.”9 According to Dworkin, principles are essential elements in deciding
these types of hard cases. He seeks to argue that in all cases a structure of legal principles stands
behind and informs the applicable rules. Principles control the interpretation of rules. Rules
derive their meaning from principles. Judges, through the rules of precedent, merely discover and
declare the existing law and never make ‘new’ law. A judge makes a decision, ‘not according to
his own private judgment, but according to the known laws and customs of the land; not
delegated to pronounce a new law, but to maintain and expound the old one’. He is against the
judge made law mainly because of two objections. Dworkin also talks about the discretion but
for him judge’s choices are within the constraints of judgment, which he called as weak
discretion. Dworkin does not deny the need for weak discretion but he denies the existence of
strong judicial discretion. Judges do not make law because the existing law provides all the
resources for their decisions. A judge does not decide a case in a legal vacuum but on the basis of
existing rules, which express, and, at the same time, are informed by, underlying legal principles.

7
Bojan Spaic, The Unvearable Lightness of Adjudicating Hard Cases, SSRN, 31st May, 2014,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2443346
8
Ibid
9
Dworkin, Taking Rights Seriously, pg. 22 https://www.jstor.org/stable/1095083?seq=1#page_scan_tab_contents
The task of the judge faced with a hard case is, therefore, to understand what decision is required
by the whole doctrinal structure of existing law.10

He goes on to argue that elected representatives who are responsible to the people should govern
a community and when judges make law it will be an encroachment on legislative power. Also,
that if a judge makes new law and applies it retroactively in the case before him, then the losing
party will be punished, not because he violated some duty he had, but rather a new duty created
after the event. Dworkin’s theory of interpretation, based on the systemic character of the legal
system and it’s innate coherence, leads to the conclusion that legal formulations ought to be
interpreted with regards to institutional history, the aims of the legal rules enacted by the
legislator, and the general aims of legal acts.11 Dworkin’s theory of adjudication is that in all
cases judges weigh and apply competing rights. Even in hard cases, one party has a right to win.
His theory of adjudication is tied to a theory of what law is and not what it is ought to be. For
Dworkin, law embraces moral and political as well as strictly legal rights.12 Law is neither
merely the rights and duties created by legislation, custom and precedent; nor is law merely the
edicts of natural law or morality. Rather, law is the body of rights given expression to in
legislation, custom and precedent, plus the political and moral rights that arc implied by the
political theory that best explains and justifies the existing legislation, custom and precedent. 13

The idea of uncontrolled discretion in judicial decision-making is repugnant to Dworkin. He

believes judicial resolution of problems does not occur in a void where there are no standards
governing particular decisions.

UNDERSTANDING THE ROLE OF JUDGES THROUGH CASES

Donogue V stephenson is the best example of case ( Judges do make law). It is known as Case
Law or Judge Made Law. To eradicate the inequality and unfair decisions, The Court of Appeal
set law every day, their decisions become law which creates flexibility and a progressive judicial
system. The statute cannot be altered as it is literally written. In another important criminal case,
of R v Dica (2004) the Court of Appeal overruled an earlier case of R v Clarence (1888) and held
that criminal liability could be imposed on a defendant for infecting another person with HIV.
This change in the law was made irrespective of the fact that the Home Office had earlier
decided that such a legislation should not be introduced which would impose liability in this

10
Aashish Srivastava, Do Judges made or declare law, Legal Services India,
http://www.legalserviceindia.com/articles/juju.htm
11
Bojan Spaic, The Unvearable Lightness of Adjudicating Hard Cases, SSRN, 31st May, 2014,
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2443346

12
Dworkin, Taking Rights Seriously, pg. 22 https://www.jstor.org/stable/1095083?seq=1#page_scan_tab_contents
13
Ibid
situation. The Home Office observed that this was a case of social and public health policy.14
Airedale NHS Trust v Bland (1993), here the House of Lords have to consider the fate of Tony
Bland a football supporter left in a coma after the Hillsborough stadium disaster. The court had
to decide whether it was lawful to stop supplying the drugs and artificial feeding which kept Mr
Bland alive, even though it was known that stopping medicine would lead to his death. The
courts had only option to make a decision one way or the other, and they decided that the action
of stopping the medicine and artificial feed was lawful in patient’s best interest as per
circumstances.

Lord Denning ‘The Reform of Equity’ "The judges do every day make law, though it is almost
heresy to say so" A famous quote by Lord Denning mentioning about the making of the law by
judges but it is usually not mentioned every time that the law has been created , changed or
reformed. 15

CONCLUSION

Judicial power involves making binding decisions, affecting the rights and duties of people and
institutions, by reference to existing law. Existing law is found in legislation, judicial decisions
or common law, and the constitutions. In applying any of these sources of law, judges make law
to a limited degree. The term ‘limited’ should be noted. The power to make law is primarily
vested in the parliament and under the constitution judges are under no obligation to make law.
However in today’s world where time is dynamic there is a need to constantly interpret the law
to fit the ever changing times. Judges are most paramount at this stage because they cannot send
laws back for rectification simply because the times have changed. It’s up to them to exercise the
utmost reasonable discretion and interpret the law in such a manner that is complementary to the
current mode of life in so doing making law. Indeed the power to make law is one that is not
vested in judges but it cannot be denied that to some extent they actually do make law.

14
Answers ltd, 'Do Judges Make Law' (Lawteacher.net, August 2018) , https://www.lawteacher.net/free-law-
essays/constitutional-law/do-judges-make-law-constitutional-law-essay.php?vref=1, accessed 31 August 2018
15
Ibid
BIBLIOGRAPHY

Websites:

 http://lawschoolnerds.blogspot.com/2012/03/do-judges-make-law.html
 https://pdfs.semanticscholar.org/c590/444e32d0c0b3ecce5a05802d9163b599efa8.pdf
 https://scholar.princeton.edu/sites/default/files/tpavone/files/hart-
dworkin_debate_critical_review.pdf
 http://carneades.pomona.edu/2014-Law/0206-nts.shtml
 http://www.legalserviceindia.com/articles/juju.htm

Articles:

 Aashish Srivastava, Do Judges made or declare law, Legal Services India,

 Dworkin, Taking Rights Seriously
 Bojan Spaic, The Unvearable Lightness of Adjudicating Hard Cases, SSRN
 Michael Green, Hart and Judges, Philosophy of Law