What is a "hard case"?

However unachievable it seems Atiyah’s claim that legal reform is impossible should not be accepted. Hard cases are of such a nature demanding change and if we are to achieve or aims of justice and stability reform is the only way of achieving it. But in reality the legal system is not of either extreme it is a mix that achieves the right decision a majority of the time but in the occasion of the hard cases the right outcome is often unclear.

Dworkin in contrast to Hart believed that even in what Hart termed hard cases there is a uniquely distinct answer which is dictated by the law. Therefore he actually argues that there are no such things as “hard cases” due to their definition of being indeterminate. He concedes to Hart that there are cases where answers are not clear and answers cannot be mechanically derived from the law. Controversial judgements have to be made but he states that in hard cases the law is fully determinate and can be solved within the law. Dworkin’s ideal of the “principles” of law as legally binding standards, which encompass the law, enables his formulation upon hard cases to become apparent. The idea of a link between law and morality is not one there is sufficient room to discuss in this essay but one in which Dworkin sides with the natural theorists. And this naturalist theory influences his views, he achieves his explanation of his “principles” from a redefinition of law itself placing law above and encompassing all social factors. Though naturalists poses that nature oversees the legal system Dworkin believes it is law that oversees nature.

At first Dworkin’s “principle’s” appears contrary to Hart’s reasoning of hard cases being indeterminate due to his theory of rule being of an “all or nothing” nature. But there is nothing about Hart’s account of a rule of recognition that inhibits it from encompassing, as a matter of judicial convention, content-based tests of legal validity an incorporation that is in fact familiar to Dworkin’s “principles”.

 Do judges make new law in hard cases?

Relative legislative freedom is a case put into question by both Hart and Dworkin with differing conclusions reached. In the instance of a hard case where there exists a “problem of the penumbra” and there is no clear rule of law defining the outcome of the case the judges are called to make a decision. This decision can be thought of as having two implications. Hart states that the judges are creating “new law” appealing to extra-legal standards to adapt to the case in point but Dworkin refers back to his “legal principles” to ultimately guide the judges to “constructive legislature”. But within Hart’s statement it does not imply the judges are not bound by any authoritative standards he merely states though “legal principles” restrict the range of possible decisions, “there will be points where the existing law fails to dictate any decision as the correct one,” where the judges must exercise “law-making powers” and create “new law”. Therefore Hart provides room in his argument for Dworkin’s ideal yet the idealism of Dworkin elaborates upon the power of his “principles” to a level which Hart believes is beyond comprehension.

In hard cases Hart states “judicial interpretation of statutes or of precedent is too formal and so it fails to respond to the similarities and differences between cases which are visible only when they are considered in the light of social aims”. Bringing social aims into our legal structure severs to blur the lines between law and morality. This is why Hart is sometimes termed a “soft positivist”. His views though always stating law has to be based on precedent and legislature he admits in the example of hard cases extra-legal standards have to be applied so that a just outcome is to be received. In the case of Henningsen v. Bloomfield Motors Inc the judgement made in lieu of sensibility and morals over the rigid rules of a contractual agreement.  But the outcome of his decision has a far greater impact then on the case it presided over.

 

The judge has ruled against a concrete rule and therefore his decision can be used as precedent in cases which are yet to be subsided. However further problems arise even with the creation of this “new law” because the uniform rules of law cannot usefully be framed by legislature in advance . This application of new expectation upon them which have not been proclaimed seems hardly fair. But the nature of the “extra-legal” reasoning must be such that it is within basic social standards of the state. But these standards can always come into question because each individual has different moral ideals. Judges have to be completely unbiased and the morals that come into conflict in these cases must be weighed and considered carefully to achieve what will be a just outcome.

Dworkin justifies the legitimacy of these outcomes no matter what popular opinion is using the paradigm of the scientist believing in the false theory. Dworkin is suggesting that the judges are to assume the role of “Hercules” in the court, finding the truth inside the legal system that is just “waiting to be discovered”. He strongly believes that judges appeal to values “that in some sense inhere in or ground the system of law in which he is an official”. He believes the judges in residing over hard cases do not play the role of the politician “endorsing the moral fabric of society” but must draw upon this reinforced by precedent and legislation.

This constructive interpretation “is the law” to Dworkin and therefore he cannot perceive this as the creation of new law.  But in reality these so called principles are basically morals and social considerations which can differ from each individual. This poses the problem of judicial interpretation, the same as in which instigated by the creation of new law, causing inconsistency in decisions and furthermore an increase in mistakes made and decreases in levels of equality caused by freedom that the judges receive.

Conclusion:

Hard cases do occupy a penumbra of the legal system which is yet to be fully resolved. They are a definition for cases which have controversy and therefore must be subject to controversy itself. Hart and Dworkin’s ideals of hard cases their definition and their impact on the creation of new law are in constant conflict but put along side each other it is quite evident that Hart’s logic is better suited to be applied to the real world which we inhabit. Judges are not ‘Hercules’ and law is not the overseeing body of the world we live in. Judges make decisions and these form the basis of a constantly adjusting system because uniform rules of law cannot usefully be framed by legislature in advance. The creation of new law poses this problem but also helps address the greater problem of an unjust legal body therefore doing the greater good for the society it set out to serve and preserve.  

References

• Adams M. David Philosophical Problems in the Law. Belmont California : Wadsworth Publishing Company, 1992
  
• Bix, Brian “Jurisprudence : Theory and Context. London”. Sweet & Maxwell, 1996
  
• Bodenhermer, Edgar “Jurisprudence - The Philosophy and Method of the Law”. Shanghai : Shanghai People's Publishing Company, 1986
  
• Burke, John J. A. “The Political Foundation of Law and the Need for Theory with Practical Value”. San Francisco : Austin & Winfield Publishers, 1993
  
• Freeman, M. D. A. Lloyd's Introduction to Jurisprudence. London : Sweet & Maxwell, 1996

• Hart, H.L.A. “The Concept of Law”, 2nd ed. 1994 by (K 237 .H3 1994)

• Dworkin, Ronald “Law's Empire” 1986 (K 237 .D86 1986)

• Dworkin, Ronald “A Matter of Principle” 1985 (KF 380 .D85 1985)

• Murphy J.G. & Coleman J.L “Philosophy of Law: An Introduction to Jurisprudence” 1990 (K 231 .M87 1990)

• Law 113 Course Materials Vol 1 Macquarie University Division of Law

• Dworkin .R “Objectivity and Truth: You'd Better Believe It” Philosophy & Public Affairs 25, no. 2 Spring 1996

• Dworkin .R "Natural Law Revisited" 34 U. FLA. L. REV. 165 (1982)

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