When the Rules Run Out – Judicial Decision Making
This paper will evaluate whether Hart’s legislative model or Dworkin’s principle model is a better explanation of how judges decide difficult cases? This question is important because both the role and function of the litigant and judge changes drastically with each model. Depending upon which model is followed, the request the litigant is making of the court in a hard case will alter significantly. Furthermore, it is important because each model gives a judge different strengths of discretion in a case without a clear legal solution. I believe Dworkin’s principle model is a better explanation of how judges decide difficult cases because when clear legal rules run out, judges are constrained by overriding principles and are therefore not free to legislate their own law as Hart argues.
According to Hart, when the rules run out, there is no more law and judges have to legislate new law in order to decide a hard case. Therefore, the legislative model claims that rules can run out, and when they do, it is up to the judge’s personal discretion to determine what law should be made to supplement the rule. Hart also states that rules aren’t always clear. An example would be the rule, “No vehicles allowed on campus.” Although cars, buses, and trucks are clearly vehicles, it is much less clear whether bikes, mopeds, roller skates, or scooters constitute a “vehicle” and would therefore be banned from campus. When interpreting an unclear rule, Hart says judges are in the “penumbra of uncertainty” and thus, must legislate new law to supplement the unclear rule. Moreover, under Hart’s legislative model, judges have strong discretion in deciding hard cases because they legislate new law however they see fit. Hart claims that the law can run out and judges must legislate to fill in the gap.
In addition, the legislative model holds that a litigant is asking only that the court base its decision on what would be best for society as a whole. Since the rules are too unclear to give the litigant any rights, the litigant is simply showing the court the need for judicial legislation on the issue (Murphy and Coleman, 45). Therefore, the litigant can only hope the new legislation will benefit them. Because the legislative model claims that in a hard case the rules have often run out, a litigant cannot say “I had a right to win” since no law exists to give the litigant any real rights in the case. This character of the legislative model further increases the judge’s strength of discretion in hard cases since the litigant cannot produce a legal argument advocating a specific decision.
Now that we have discussed the characteristics of Hart’s legislative model, I want to examine Dworkin’s principle model, which I believe is a much better explanation of judicial decision making. In my opinion, the legislative model’s view that in the absence of rules there is no law is wholly incorrect. It seems, t |
