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,"27 where the judges must exercise "law-making powers"28 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"29. 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"30. 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 Inc31 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 advance32 . 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 theory33.

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"34. 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"35. He believes the judges in residing over hard cases do not play the role of the politician "endorsing the moral fabric of society"36 but must draw upon this reinforced by precedent and legislation37.

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.