Hard Cases

Question 0

Hart’s view on Hard Cases

Answer 0

Judges choose between possible options, role of judges is interstitial, they fill in gaps in the law. They cannot introduce large scale reform and can not decide arbitrarily. In easy cases they use mainly formalist reasoning, in hard cases they use more realist reasoning.

Question 1

Why do hard cases occur?

Answer 1

Language - open texture, general terms, prenumbra of uncertainty.
Ignorance of fact - can’t foresee every situation.
Relative indeterminacy of aim
Compromise between need for certain rules and need to leave open for later settlement that which can only be properly appreciated when it arises.

Question 2

MacCormick’s Extended Formalism

Answer 2

Judges need to justify their decisions with a universal principle which expresses a general proposition and makes a system of precedent possible. Judges use consequentialist arguments, consistency and coherence to choose between principles.

Question 3

Fuller’s Response to Hart

Answer 3

Language can’t determine decisions, must consider purpose during interpretation. Judges should ignore plain meaning where it conflicts with purpose. Argues for intelligent fidelity rather than blind fidelity.

Question 4

Early Dworkin

Answer 4

Hart ignored moral principles. When there is no law general principles should be applied, allows judges weak discretion. Strong discretion means not being bound by standards set by authority, weak discretion means being bound by standards set by authority but having to exercise judgement.

Question 5

Late Dworkin

Answer 5

Takes emphasis from principles, focuses on disagreements over nature of law, interpretive approach (pre interpretive stage, interpretive stage and post-interpretive stage), two axes of interpretation - fit (coherency) and justification.

Question 6

Law as integrity

Answer 6

Integrity requires that government acts in a coherent manner toward all its citizens, ruling out all inequality and discrimination.

Question 7

Dworkin

Answer 7

Adjudication requires weak discretion, political morality is requires for justification, there is one right answer, adjudication is objective, judges own politics should not be included, possibly requires a superhuman judge to find the right answer.

Question 8

Riggs v Palmer (1889)

Answer 8

D murdered his father for inheritance, a literal interpretation of that statute would allow him to inherit, the court held that he should not profit from his murder. Principle weighed against the rule and won out.