H.L.A HART V RONALD DWORKIN: Whether Judges make law?

Q. Whether Judges make law, in hard cases and in cases of First impression or they just search, either
successfully or unsuccessfully, for the definite and unique legal answer which already exists?

Elaborating upon the question thus presented, it merely seeks the answer to the question whether Judges
are authoritarian law maker or mere announcers and declarers of law. Hard cases provide instances
where it might be argued that judges are actually making law, hard cases are those where due to lack of
legal precedent and definite legal authority there is uncertainty as to what the correct position of law is
on that matter.

So when the law appears to have run out in terms of rules the law itself has not run out but has an
underlying determinacy as an integrated body of rules and principles to be reconstructed by the judge.
The judge as an interpreter (and never a legislator) is duty-bound by the law to rule in accordance with
its uniquely correct moral and legal answers. Thus he has no strong discretion 2, hence in Hard cases or
cases of first impression a judge doesnt make law, even while he fills in the gap, he merely attempts to
find the correct legal position by applying moral principles and legal authority on the matter, and either
succeeds or fails. Dworkin claims that the Judge works with the knowledge that there is one unique right
answer giving preference to the most ethical standpoint and intelligent decisions and he, in reality, has
no strong discretion.3 He stresses that whether the judge finds the right answer or not or whether in some
particular case or if its humanly possible to find the right answer are not important, rather the existence
of such an answer is.

On the other hand, Hart while agreeing on the distinction between rules and principles sticks to his
positivist roots claiming that principles are not inherently legal, and as determinant and clear as they
may be, we can run out of laws (in a particular context) and as a representative of the Government the
duty befalls the judge to fill the gap, in the process actually making new law.4

1 Aayush Ojha, Sem-VIII, R.no.-306,Jurisprudence.

2 Tebbit, (2005), p. 55; cf. Dworkin, (1977), p. 32, in: Davies & Holdcroft, (1991), p. 83

3 Tebbit, (2005), p. 54

4 Tebbit, (2005), p. 58
While accepting law as determinant at its core and the language in which it is expressed as sufficiently
clear, he contends that it grows out from its core into the Penumbra of Uncertainty, where lingual
ambiguity creates hard cases, he uses the example of the term vehicle and the possible meanings it might
5
have, thus making judicial law making a practical necessity. Dworkin uses the case of Riggs v Palmer
to drive home the point that the back letter of law regarding inheritance was clear in the case, but the
common law principle that one cannot benefit from ones own wrongdoing was not ignored, pointing
clearly that positivism isnt the real judge, and Judges have discretion.6

John Finnis attacks Dworkins idea stating that the best fit and best light are incommensurable and
instead of helping harmonize one answer, as claimed by him above, might pull the jurist in opposite
directions.7

However Dworkins strongest argument is that in the British common law system, if the parliament is
not satisfied by a Judges answer to a legal question, they may overturn it, thus clearly showing the
Judges do not have any law making power, they are mere seekers of law.8

Hart, however offers that where an old and established law becomes obsolete and incapable of meeting
the ends of justice, Judicial law making takes place in the greater interest. Arguing against Judicial law
making, Dworkin says that in cases of where the Judges make law, owing to the absence of any
precedence or legal text, the losing party is not punished for violating some duty, rather a duty is created
and they are punished.

Dworkin seems to reject Judicial discretion and assume that anyone who accepts the idea cannot
acknowledge the existence of legal principles or assume that principles cannot eliminate all
uncertainties, but can one not ask whether its conclusively established that legal principles can in fact
eliminate all uncertainties? The Dworkinian critique of Positivism holds true if one assumes that Law

5 115 NY 506 (1889)

6 Hart, (1983), p. 66, in: Davies & Holdcroft, (1991), p. 70

7 Tebbit, (2005), p. 68

8 R. Dworkin; "Laws Empire"; (Harvard University Press;1988)

and Morality are not conjoint but separate, which in itself is another debate with multitudes of
arguments.

It is very difficult to lean to one side in this debate, with equally compelling and persuasive arguments
from both sides, the question whether Judges make law or they merely seek and declare the unique legal
position remains to a large extent unanswered, with one concrete fact being established, that neither of
the two answers can be out rightly rejected.

References

Davies, Howard & Holdcroft, David, (1991), Jurisprudence: Texts and Commentary, London,
Butterworths

Dworkin, Ronald, (1977), Taking Rights Seriously, London, Duckworth

Hart, H. L. A., (1961), The Concept of Law, Oxford, Oxford University Press

Tebbit, Mark, (2005), Philosophy of Law: An Introduction, 2nd Edition, Abingdon (UK), Routledge