What Are Judges Meant to Do When the Law Does Not Specify a Clear Answer to a Case? Essay

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For natural law proponents and most noticeably Dworkin, the dilemma of having no recourse to law is irrelevant because law is underpinned by an overarching moral dimension which will always provide one clear answer. In his view, judges decide hard cases through a twin model of fit and justification: first by interpreting the law befitting of all relevant precedent and one that is best morally justified. On the other hand, for inclusive positivists such as Hart where a distinction is drawn between morality and law and thus in instances where the law has “run out”, judges must “make law”. This form of judicial action is what we are usually acquainted with as judicial discretion. This essay explores the two different approaches taken by each in brief before stating that the principal disagreement between Dworkin and inclusive positivists (leaving out the alternative strand of exclusive positivism ) on legally unregulated cases is overstated, primarily due to Dworkin’s overboard rejection of Hart’s view of judicial discretion in his essay “The Model of Rules”. Dworkin’s critique of inclusive positivists’ view of discretion mistakes what it really means when discretion comes into play and in particular, the strict claim that rules are applied in an ‘all-or-nothing’ fashion. Furthermore Dworkin’s attempt at distinguishing between ‘weak’ and ‘strong’ discretion neglects the inclusive positivists’ view that principles are actually part of legal rules. Discretion is thus constitutive of principles guided by rules, and is misunderstood by Dworking, confusing our understanding of inclusive positivism. Therefore Dworkin’s exaggeration is problematic, because contrasted against his own theory as applied in hard cases alone is unsustainable in contexts of two competing moral principles. Dworkin’s views ultimately prescribes a far too idealistic role for judges and a ‘Herculean’

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