Do Judges Make New Law in Hard Cases?
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DO JUDGES MAKE NEW LAW IN HARD CASES? JOSEPH BUCCHERI I. INTRODUCTION. 1 II. HERBERT LIONEL ADOLPHUS HART (1907-1992). 2 A. HART'S SLANT ON POSITIVISM. 2 B. HART'S VIEW OF JUDICIAL DECISION MAKING. 3 C. PLAIN CASES - THE MOTOR CAR AN AUTHORATIVE EXAMPLE. 3 D. APPLYING THE AUTHORATIVE EXAMPLE - THE ROLLER SKATE. 4 E. INDETERMINACY - MEN ARE NOT GODS. 4 F. INDETERMINACY OF AIM - THE ELECTRIC CAR. 5 G. DELEGATION - SETTING A RATE. 6 H. REASONABLENESS - THE DUTY OF CARE. 6 I. PRECEDENT - INDETERMINACY OF A COMPLEX KIND. 7 III. RONALD DWORKIN. 8 A. EXPANDED TEXT. 8 B. HOW ARE PRINCIPLES APPLIED? 9 C. STRAW MAN. 9 1. Discretion. 10 D. WHEN CAN A JUDGE MAKE NEW LAW IN DWORKINS MODEL? 12 E. CRITICS OF DWORKIN 13 1. Stanley Fish. 13 2. John Gardner 14 IV. CONCLUSION - IS HART'S JUDGE CREATING NEW LAW? 15 V. BIBLIOGRAPHY. 18 I. INTRODUCTION. How do judges arrive at the decisions they make when adjudicating cases? This question has been the subject of a great amount of debate over a great many years. Various legal theorists have turned their mind to this question and many different models have been proposed, each theorist of course believing they have discovered the answer! Lively debate has ensued! One that took place at the end of the last century was between Professor's Hart and Dworkin. Dworkin, incidentally, replaces Hart as Professor of Jurisprudence at Oxford University on Hart's resignation. Some believe Hart resigned as a result of the criticism aimed at him by Dworkin. The majority of cases that arrive before a judge are uncontentious and a result is arrived at by applying the existing rules of law, Hart calls these plain cases. The area of contention between Hart and Dworkin is where cases cannot be adjudicated on so easily, the hard cases. These are cases where the existing rules of law cannot be applied directly and some form of reasoning or discretion on the judge's part is required.
He was a professor of law at Yale University Law School from 1962-1969. He has been Professor of Jurisprudence at Oxford and Fellow of University College since 1969. He has a joint appointment at Oxford and at NYU where he is a professor both in the Law School and the Philosophy Department. He is a Fellow of the British Academy and a member of the American Academy of Arts and Sciences. A. Expanded Text. Dworkin's theories are built on criticism of Hart's theory of positivism. Dworkin's theory is based on his view that judges do not make law. Dworkin dissects and adds elements to Hart model of primary and secondary rules. Dworkin's model of judicial decision making in hard cases makes use of "rules, principles and policies".16 Sandra Berns labels this 'expanded text' which when compared to Hart's narrower view of the rules of law is an apt description.17 Dworkin defines a "policy" as 'that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community'.18 Dworkin defines "principle" as 'a standard that is to be observed, not because it will advance or secure an economic, political or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality'.19 Rules in Dworkin's mind have a very narrow defined meaning. They are all-or-nothing, as he states 'if the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision'. Dworkin's "expanded text" therefore has additional elements of community/social principles and morality. Dworkin considers his expanded text as encapsulating the law to be used when decisions need to be made in hard cases by judges. He believes Hart's theory places 'policies and principles' outside of the law, as merely 'extra-legal standards that courts characteristically use.'20 B. How Are Principles Applied?
Indeterminacy of Aim - Once the general aim of the rule is stated the decision maker 'can settle the question by choosing between the competing interests (the child's pleasure v peace and quiet in the park) in the way which best satisfies' them.45 No new law has been made just the application of a rule assisted by the general aim in interpreting it, a valid legal reasoning technique. The Acts Interpretation Act in Australia for instance allows this method of interpretation. Delegation - Is this setting new law or interpreting existing law? In the case of the administrative body I believe they are just interpreting existing rules. If the administrative decision is subject to judicial review precedents may be set which are binding on peer and lesser courts but are not as such new laws. Reasonableness - Again Hart frames his analysis in a form whereby a rule with variable standards becomes determinate through legal reasoning and applied in a given situation as opposed to a judge creating new law. In Australia the variable standard of the duty of care in negligence cases is determined through examining the salient features from previous cases as is only extended incrementally through the application of legal reasoning to the existing determinate situations (salient features) in certain situations. Precedent - Hart talks of "legislative activity" when courts distinguish cases but is this really what he meant? In Dworkin's view this is exactly what Hart says it is it is the creation of new law. Gardner would say it is purely an act of legal reasoning creating new legal norms. Fish would say that the judge is participating in the practice of adjudication, which itself provides all the constraints which are required and that the judge is not creating new law. I am unconvinced by Dworkin's argument in any of these cases. Hart is not, I believe suggesting that judges in making decisions are creating new law. So in answering the question "Do Judges Make New Law in Hard Cases" in Hart and Dworkins' case I will have to say no. V.
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