Do Judges Make New Law in Hard Cases?

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730-522 Legal Theory                Student No. 170767        

DO JUDGES MAKE NEW LAW IN HARD CASES?

Joseph Buccheri


II.        HERBERT LIONEL ADOLPHUS HART (1907-1992).        

A.        Hart’s Slant on Positivism.        

B.        Hart’s View of Judicial Decision Making.        

C.        Plain Cases – The Motor Car an Authorative Example.        

D.        Applying the Authorative Example – The Roller Skate.        

E.        Indeterminacy – Men are Not Gods.        

F.        Indeterminacy of Aim – The Electric Car.        

G.        Delegation – Setting a Rate.        

H.        Reasonableness – The Duty of Care.        

I.        Precedent – Indeterminacy of a Complex Kind.        

III.        RONALD DWORKIN.        

A.        Expanded Text.        

B.        How Are Principles Applied?        

C.        Straw Man.        

1.        Discretion.        

D.        When Can a Judge Make New Law in Dworkins Model?        

E.        Critics of Dworkin        

1.        Stanley Fish.        

2.        John Gardner        

IV.        CONCLUSION - IS HART’S JUDGE CREATING NEW LAW?        


  1. 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. The result of this process is a novel answer to a novel situation. Are these “novel answers” new laws? That is the question posed for this essay.  

   

Hart, a positivist, puts forward a view that judges use “judicial discretion” when deciding these hard cases. Dworkin believes that this act of judicial discretion amounts to judges being part time legislators.

Dworkin’s model on the other hand has the rules of law explicitly encapsulating the principles and policies he sees constrain and guide judges in this decision making process. This he believes leads to no doubt that when judges adjudicate they are applying existing legal principles and not making new law.

In this essay I first analyse the various elements of Hart’s model of judicial decision making. I then look at Dworkin’s theories focussing mainly on his criticism of Harts model. I also briefly look at two of the critics of Dworkin’s theories in an effort to evalute the value of his argument. Finally my conclusion summarises the judicial processes of Hart’s model, considers Dworkin’s criticisms and answers the question posed “Do Judges Make New Law in Hard Cases”.  

  1. Herbert Lionel Adolphus Hart (1907-1992).

Hart, born in England in 1907, studied at New College, Oxford prior to practising at the Bar (1932 to 1942). Following the second world war (during which he worked for British Military Intelligence) he was appointed as a tutor at the Oxford college where he had studied as an undergraduate. In 1952 he was selected as the Professor of Jurisprudence. He resigned that position in 1969 and was succeeded by Ronald Dworkin.

  1. Hart’s Slant on Positivism.

Hart critically analysed the works of the 19th century positivist’s Bentham and Austen in order to develop his own theory. Posivitists base their theories on the law being man made. They consider its pedigree to be far more important than its content.

Hart’s major criticisms of Bentham and Austen’s work being their insistance on distinguishing ‘law as it is from law as it ought to be’ a  theme which he believed haunted their work. Although critical of their work, Hart had great respect for their views stating that:


…Bentham and Austin were not dry analysts fiddling with verbal distinctions while cities burned, but were the vanguard of a movement which laboured with passionate intensity and much success to bring about a better society and better laws.

Austen’s 19th century ‘command theory’ placed great emphasis on sovereignity as a necessary element of a legal system. Sovereignty for Austen being the English Parliament, a body of authority that the bulk of society obeyed. Parliament as a political superior in Austen’s view had power to enforce laws onto others.

Hart’s ‘recognition theory’ took a quite different view of the nature of law. Hart’s view was that a law becomes a law through a rule of recognition. Hart is not always clear as to what constitutes a rule of recognition but in Australia it would be reasonable to see the Constitutuion as one of these. In contrast to Austen’s ‘command theory’, Hart’s rules of recognition were not all powerful but could be subject to change i.e. in Australia the Constitution can be amended through referendum.

Hart split laws into two sub-groups, primary and secondary rules. Primary rules being the recognised substantive rules regulating behaviour in all soceities. In developed legal systems these primary rules had subservient secondary rules which enabled them to function. The secondary rules provided a mechanism for the primary rules to be changed and enforced; and being generally known to society provided some degree of certainty as to what the law actually was.

  1. Hart’s View of Judicial Decision Making.

Harts analysis of the rules of law focuses on its language. He makes a distinction between law that states a general purpose, e.g. legislation, which makes maximal use of general classifying words; and the application of general standards by a court in a specific circumstance (precedent) which make minimal use of general classifying words.

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  1. Plain Cases – The Motor Car  an Authorative Example.

Hart sees decision making in the majority of cases as straightforward.  These cases ‘constantly recur in similar contexts to which general expressions are clearly applicable’. In other words clear cut cases where the facts clearly fit the rule of law - be it legislation or common law. He calls these ‘plain cases’.

Hart provides an example using a rule that prohibits vehicles in a park. He focuses on the meaning of the word ‘vehicle’ in the rule and how it is interpreted . Would a car be ...

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