21/03/2023, 14:29 ‘Hard Cases’ For Judges | Vibrant Bliss

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Posted on December 23, 2011 by Peter Thomas Lawrence Hardy

An Evaluation of the Positions of Hart and Dworkin on the Role of Judges Faced
with Hard Cases
‘Hard cases’ is a general name for those cases where the law is not
clear as to who the judge should rule in favour of, which are normally
due to a lack of relevant precedent. This role of judges is controversial
among philosophers because if there are such gaps in the law it would
appear that when decisions are made, the substance of the new ‘law’ Search

created would be chosen by them. Defended by H. L. A. Hart in his

seminal The Concept of Law [1], this has become the default positivist
position. In what has become one of the most important debates in Please follow this blog
jurisprudence, Hart’s view has been subjected to sustained attack by
the successor to his chair at Oxford, Ronald Dworkin. Enter your email address to follow this
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For the latter, the body of the law is fully determinable, so the creation of precedents is by email.
an organic development and never a case of filling-in gaps.[2] Dworkin shows that
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Hart’s theory has problems here- the most obvious being that for unelected officials to
be legislating is contrary to the ‘rule of law’ as enshrined in the separation of powers.[3]
But in this essay it shall be argued that Dworkin fails to establish a stance on judicial
discretion as plausible as Hart’s, due to the potential for the law to be Follow
underdetermined on some issues, particularly in view of the ultimately
incommensurable nature of legal principles with legal rules. Join 104 other subscribers

Because Dworkin initiated this debate, we shall follow his understanding of judicial
discretion, which is specifically about the duties of judges. He classifies three senses in Categories
which we use the term ‘discretion’, two weak and one strong sense. The first is when
the judge’s “duty is defined by standards that reasonable men can interpret in different
ways”,[4] like a sergeant who has been ordered to pick his five most experienced men
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for a task. The second is different because it is not dependent on the judge’s duty as
such, but on the finality of his decision. Here discretion consists in the absence of a
higher authority who can revise his decision. The third and strong sense is that by
which the judge is free of the duty to rule a particular way, where the authority doesn’t Tags
impose any particular standards, like the case of a sergeant ordered to pick any five
men for a task.[5] Although Hart describes the judge’s interpretation of ambiguous Abortion Analytic Philosophy
terms as central to discretion, it is the third and not the second sense which Dworkin Annunciation BBC Bible Board
discerns and objects to within Hart’s theory. Games Britain Buddha
Capitalism Card Games Care
A final prefatory clarification is on the natures of the respective philosopher’s systems.
Perhaps the deepest divide between them is that while Hart is a utilitarian, Dworkin is a
Catholicism Christianity
(non-absolutist) deontologist, whose ethics centres on individual rights rather than Christmas Climate
general wellbeing.[6] This bears on our debate because for utilitarians, where two Change Communication
outcomes produce the same quantity of wellbeing they are equally preferable. But for comparative religion
Dworkin moral questions always have an objectively right answer determined by the Coursework Essay Culture
duty to others which is most binding. Thus, in so far as the law is moral, there will Deification Dharma Eastern
always be an objectively correct answer. This is crucial because Dworkin sees the law as Philosophy Ecology
essentially moral, with a ‘constellation’ of moral principles implicitly recognised in the Economics Effective Altruism
common law tradition. These moral principles are an inherent part of the law, and are Environmentalism
closely related to our political values of liberty, equality, and fairness.[7] Epistemology ethics
Principles have a quality that distinguishes them from rules, which Dworkin calls eudaimonic Euthanasia Fallacies
‘weight’, i.e. an
Thisadded
site usesdimension. In addition
to use to
thisthe spectrum
you agreeoftoapplicability (or Feminism Gaming Gay Marriage
good life Happiness
Privacy & Cookies: cookies. By continuing website, their use.
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Torelevance toincluding
find out more, a case)howontowhich
controlwe findsee
cookies, rules,
here: principles
Cookie Policy also lie on a spectrum of
seriousness. By definition rules cannot conflict with each other, but where principles do Hinduism Homosexuality Humour
we weigh their seriousness against each other.[8] Dworkin claims that the weight of Inclusivism Indic Internet Justice Law
principles can be discovered objectively, not in the sense of being value-free, but as living well Maternal Close
Spirituality
and accept
having mind-independent truth.[9] Maternal Theology Meaning of
li
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21/03/2023, 14:29 ‘Hard Cases’ For Judges | Vibrant Bliss
So when the law appears to have run out –in terms of rules– the law itself has not run Life Metaphysics Morality
out but has an underlying determinacy as an integrated body of rules and principles to Mystical Birthing Natural Law
be reconstructed by the judge. The judge as an interpreter (and never a legislator) is
Philosophy Plato Political
duty-bound by the law to rule in accordance with its uniquely correct moral and legal
answers. Thus he has no strong discretion.[10] Philosophy Politics Pope
Francis Pro-choice Pro-life
Dworkin makes paramount an analogy between the nature of this interpretation and Progressive Christianity
the development of a multi-authored narrative.[11] Two conditions for the Reason Religion Science Self-
identification of the correct ruling are given. The first is that the judge search for that Social Justice
improvement
decision with best fit with the settled law. The judge is like an author updating a novel Spirituality Stoicism
who, recognising the continuities of plot and setting, is duty-bound to carry on in the Sustainability Technology
vein of the original. The second condition requires that this must be made with the law
viewed in its best light- which gives preference to the most intelligent decisions and Theology UK Vegetarianism
ethical standpoints, with particular reference to individual liberties, equality and Virgin Birth Work Workers' Rights
democracy. So now the author strives to integrate inferences from the narrative
structure (best fit) with the more aesthetic judgements of quality, such as tone and
characterisation (best light).[12]
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These criteria do, he says, firmly guide judges to one right answer, but this is far from
being a mechanical process since it relies upon the free exercise of their legal skills.[13] Tweets from
Of course, the question of whether judges actually make the right decisions in practice @VibrantBliss
is a separate issue- Dworkin’s claim only depends on there being a unique right answer
in theory. He explains this conviction with the thought experiment of a Herculean judge Peter Hardy
whose interpretive prowess is such that he -aware he has no strong discretion[14] Retweeted
always determines the answer that is the most fitting and moral one possible.[15] Carol V…
@c… · Jan 11
How clear the reasons for the answer being correct will vary, indeed, there are some
circumstances in which no judge would be able to find them in practice. Dworkin says SUNAK DOESN'T CARE
that a rough guide for reconstructing the integrity between these two poles is choosing ABOUT YOUR CHILD
the most morally satisfying decision out of those that make sufficient sense of all Our state schools worry
settled law- which means not distorting or omitting any of its key areas.[16] about going bankrupt Rows
rage about free school
Hart accepts the distinction between rules and principles but as a positivist he rejects meals
the notion that the latter are inherently legal- the law is solely a system of interacting Meanwhile, private schools
rules. As above, these rules -at least insofar as they have clarity or determinacy- can (inc those of ministers) were
run out, so Hart follows John Austin in accepting that judges have a role which includes given extra £157m
making decisions as representatives of the government. This means discretion is not Get angry, stay angry, they
only the duty of interpreting the law, but permission to decide what it is- what Dworkin are destroying your
categorises as strong discretion.[17] Hart qualifies this, however, saying that their
choice must be neither arbitrary nor mechanical, and that skilful judges impartially
consider the interests of all parties who will be affected by the decision.[18] Meditation Teaching Page
So how determinate is the law? Hart says that (in theory) it is determinate at its core,
and there the linguistic form in which it is expressed is clear enough for it to form the Peter Hardy - …
basis of legal decisions in general.[19] But as the law branches out of this core the rules 68 followers
become less determinate, reaching into a ‘penumbra of uncertainty’ where the
important concepts are limited by ambiguous language. This significant indeterminacy
is responsible for hard cases, and he elaborates it with reference to the open-textured
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nature of language.[20] Hart’s favoured example for explaining open-texturedness in
law is the general term ‘vehicle’. This simple word, which a legal decision could well
hinge upon, is not closed to a specific set of meanings but can be interpreted so as to
limit or to include very different things.[21] Hart is especially critical of the logical
formalism of judges who try to over-generalise by taking arbitrary features of one case
to be necessary conditions for a range of others.[22] Ultimately “choice, not ‘logic’,
would force the judge to include a toy motor car”.[23]
One of Dworkin’s key objections to Hart’s understanding is that it means judges can
punish people via retroactive laws- i.e. those affected in the case where the precedent
is set. This conflicts with our common standards of justice.[24] Of course for Dworkin
judgements in hard cases do change the law, but unlike Hart’s understanding, this
innovation is minor compared with the overall continuity that the new law has
developed within.[25] Hart would likely respond that the defendant should have known
that there was a gap in the law on that issue and that in so acting they were running
the risk of having a precedent made against them. Dworkin’s complaint is not
insubstantial, but it is far from decisive.
Another argument is found in Dworkin’s use of the hard case Riggs v. Palmer to
illustrate that we cannot simply follow the black letter of the law- that reference must
be made to principles within the common law.[26] He stresses that the relevant rules to
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Tothis case, concerning
including howinheritance, were seecentral andPolicy
not penumbral in their meaning-
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the rules were clear. But if Positivism were true judges wouldn’t have been concerned
with debating the meaning of a rule with a central meaning, and it was very
controversial. Judge Earl explicitly recognised a principle (not benefiting from your own
wrongdoing) as running through the common law tradition, and as being decisive to his
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21/03/2023, 14:29 ‘Hard Cases’ For Judges | Vibrant Bliss
judgement.[27] Dworkin’s argument is doubly fallacious, it assumes both that what
ought to be so, is so (like all of his arguments against Hart’s theory mentioned), and
that the decision in this case was the right one (begging the question against Hart’s
theory which would say it was wrong). But these points still count in favour of Dworkin’s
theory, because they bring attention to the strength of our moral intuitions and of the
attitudes of legal professionals towards the view that there are moral principles in the
law that guide us towards particular answers.
Yet there are stronger considerations to be made against Dworkin’s theory. To begin
with, even when we grant that these moral principles are part of the law, after taking
the holistic analysis of law that Dworkin suggests it would remain an open question
whether there would be a single correct judgement on any case.[28] It still needs to be
explained what it is that guarantees that the law is fully determinate.
John Finnis makes an objection based on the problem of incommensurability. He says
that Dworkin has wrongly assumed that the criteria of best fit and best light are
commensurable. On the contrary, these two superlatives may well pull in different
directions, as would often happen with ‘funniest’ and ‘best’. While we can actually
objectively adjudicate between competing rights in terms of seriousness, these rights
will sometimes require us to depart from the decisions that fit with our prior common
law tradition. This is to say, they require us to check our human laws against a natural
law.[29] Of course, the principles Finnis refers to here are grounded on absolute values
distinct from a particular legal system, and this is something Dworkin rejects. But here
Finnis’ position is more consistent with the belief in objective moral duties in the law
that he and Dworkin share. Similar points are made by philosophers as diverse as Neil
MacCormick and Jacques Derrida, and they hold good:
Dworkin has contrived too hard to force the precise technical procedures of the law-
understood in a descriptive sense, into the same mould as the demands upon judges
as agents with a moral integrity to uphold- understood in an evaluative sense.[30]
Overall, however, the crucial problem with Dworkin’s theory is that his own criteria for
discerning the correct ruling are significantly open-textured. Hart points out that on
Dworkin’s theory some of the principles contained in the law will be very general and
abstract, so not only will they be unclear to judges but there is likely to be lots of
overlap and conflict. The decision may be underdetermined by the absence of clearly
binding duties, or a chaotic result might arise from the overdetermination of more than
one possible decision having different sets of best fit and best light going for them. As
such it becomes implausible to maintain that there could always be one particular
principle, or particular arrangement of principles which when followed, would fit the
existing legal rules on the issue best.[31]
Although Hart’s philosophy of law (as presented in The Concept of Law) is far from
comprehensive, as positivists such as Neil MacCormick have pointed out, Dworkin’s
principles can be accepted under a broadened understanding of Hart’s rules, but that
on the question of legal validity, these can be traced back to a rule of recognition (so a
Natural Law account of authority of the law need not be conceded).[32] In view of this
especially, Hart’s views on judicial adjudication are significantly more plausible than
Dworkin’s, and as we saw with its main competitor, Finnis’ Natural Law theory, strong
judicial discretion is more defensible upon other theoretical systems also.
Bibliography
Davies, Howard & Holdcroft, David, (1991), Jurisprudence: Texts and Commentary,
London, Butterworths
Dworkin, Ronald, (1977), Taking Rights Seriously, London, Duckworth
Dworkin, Ronald, (1986), Law’s Empire, London, Fontana
Hart, H. L. A., (1961), The Concept of Law, Oxford, Oxford University Press
Hart, H. L. A., (1983), EssaysIn Jurisprudence and Philosophy, Oxford, Oxford University
Press
Tebbit, Mark, (2005), Philosophy of Law: An Introduction, 2nd Edition, Abingdon (UK),
Routledge
References
[1] Hart,
Privacy (1961),This
& Cookies: p. 124
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[2] Tebbit, (2005), p. 55

[3] Dworkin, (1977), p. 84, in: Davies & Holdcroft, (1991), p. 81; cf. Tebbit, (2005), p. 79

[4] Dworkin, (1977), p. 69; Quoted in: Davies & Holdcroft, (1991), p. 82
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[5] Dworkin, (1977), p. 32, in: Davies & Holdcroft, (1991), p. 82

[6] Tebbit, (2005), p. 55

[7] Tebbit, (2005), p. 54

[8] Dworkin, (1977), pp. 26-7, in: Davies & Holdcroft, (1991), p. 76

[9] Tebbit, (2005), p. 66

[10] Tebbit, (2005), p. 55; cf. Dworkin, (1977), p. 32, in: Davies & Holdcroft, (1991), p. 83

[11] Dworkin, (1986), p. 225, in: Davies & Holdcroft, (1991), p. 79

[12] Dworkin, (1986), pp. 228-9 , in: Davies & Holdcroft, (1991), pp. 77-8; cf. Tebbit, (2005), p. 54

[13] Dworkin, (1986),. 234; cf. Tebbit, (2005), p. 65

[14] Tebbit, (2005), p. 56

[15] Dworkin, (1977), pp. 116-7, in: Davies & Holdcroft, (1991), pp. 76-7

[16] Dworkin, (1986), p. 225 , in: Davies & Holdcroft, (1991), p. 79

[17] Tebbit, (2005), p. 58

[18] Hart, (1961), p. 200

[19] Hart, (1961), pp. 141-2; cf. Tebbit, (2005), p. 51

[20] Hart, (1961), pp. 124-5

[21] Hart, (1961), p. 124

[22] Hart, (1983), p. 66, in: Davies & Holdcroft, (1991), p. 70

[23] Hart, (1983), p. 67; Quoted in: Davies & Holdcroft, (1991), p. 70

[24] Dworkin, (1977), p. 84; Quoted in: Davies & Holdcroft, (1991), p. 81

[25] Tebbit, (2005), p. 66

[26] Tebbit, (2005), p. 56

[27] Tebbit, (2005), p. 59

[28] Hart, (1983), p. 157, in: Davies & Holdcroft, (1991), p. 108

[29] Tebbit, (2005), p. 68

[30] Tebbit, (2005), p. 67

[31] Tebbit, (2005), p. 60

[32] Tebbit, (2005), p. 61

‘Hard Cases’ For Judges

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Filed under Ethics Essays, Philosophy Essays and tagged Coursework Essay, Discretion, H.L.A. Hart, John Finnis, Judgement,
Jurisprudence, Law, Politics, Ronald Dworkin | 2 Comments

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2 responses »

PopulationSave on December 29, 2011 at 6:46 PM said:

Is Dworkin right to suggest, in Taking Rights Seriously, that there is always a right answer to a HArd
Case?

Reply ↓

Peter Hardy on December 30, 2011 at 12:01 AM said:

No I don’t think he is.

Reply ↓

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