So however smoothly these general rules work in the great mass of cases, a point is reached in where this 'open textured' nature leads to cases of indeterminacy, Hart's hard cases. Hart states legislators labour under two connected handicaps when attempting to regulate unambiguously and in advance for some unknown sphere of conduct by means of general rules without expecting any form of further official direction in particular situations: 1) the relative ignorance of facts i. e. men are not gods able to anticipate all possible fact situations such as skate boarders in the park; 2) The relative indeterminacy of aim e. g. what is the rule trying to do or regulate now and in future situations?
If rules could be made to anticipate all eventualities which of course they can't, the rules of law could be mechanically applied in all cases. Hart calls this 'mechanical jurisprudence'. 8 F. Indeterminacy of Aim – The Electric Car. Hart uses his 'banning vehicles in the park' example to illustrate 'relative indeterminacy of aim'. Hart reasons that the language of a rule fixes in people's minds certain clear examples e. g. motor cars, motor bikes and buses that we would all clearly see as vehicles to be banned from the park.
The rule up to this point, Hart states, is determinate. By making a choice of this type of noisy vehicle we have established the general aim of the law 'that peace and quiet is to be maintained in the park by excluding these vehicles. ' However prior to adding this general requirement of 'peace and quiet', the aim of the rule was indeterminate making it very difficult to decide if unenvisaged 'vehicles' such as a electrically powered toy car fell under the definition of vehicle. The rule doesn't explicitly allow or disallow the use of silent toy cars as they were not envisioned at the time of drafting.
Without this "general aim" being known it would be impossible for the decision maker to decide if a silent toy car constituted a vehicle that should be banned. 9 Once the general aim of the rule is stated the decision maker 'can settle the question by choosing between the competing interests (the child's pleasure v peace and quiet in the park) in the way which best satisfies' them. In Harts analysis the indeterminate aim of the rule is made determinate and the meaning, for the purpose of this general rule, of a general word has been settled. 10 G. Delegation – Setting a Rate.
Hart then turns his mind to areas where it is recognised that individual cases 'will vary so much in socially important but unpredictable respects' that further official direction is required. In these cases legislation 'sets very general standards and then delegates to an administrative, rule making body… the task of fashioning rules adapted to their special needs'. 11 Hart sights an example of this as legislation requiring an industry to charge only fair rates for work done. Instead of leaving the industry to self regulate, the legislation delegates the task of setting rates to an administrative body.
Hart sees the range of possibilities presented to the decision maker in such a case as creating a relative indeterminacy in the initial aim of setting a fair rate. In these cases 'the rule-making authority must exercise discretion. '12 H. Reasonableness – The Duty of Care. Hart then discusses the technique of 'reasonableness' that is often employed 'where the sphere to be controlled is such that it is impossible to identify a class of specific actions to be uniformly done or forborne and to make them the subject of a simple rule, yet the range of circumstances though very varied covers familiar features of common experience.
' Hart provides the 'duty of care' in negligence is an example of such a rule. In these cases he states 'common judgement of what is reasonable can be used by the law'. Reasonableness is established by 'weighing up and striking a reasonable balance between the social claims which arise in various un anticipatable forms'. 13 In negligence the aim of securing people against harm is therefore indeterminate, only becoming determinate when put in conjunction with or tested 'against, possibilities which only experience will bring before us' and a decision is made in the particular case.
This variable standard to be complied with is only officially established ex post facto unless a precedent that fits the fact situation exists. Precedents, in these cases, Hart sees as specifications of the variable standards of the rule and similar to the determinations made by administrative bodies discussed in the section above. I. Precedent – Indeterminacy of a Complex Kind. Even though Hart sees the doctrine of precedent potentially providing far more complex indeterminacies than legislation, he believes the English common law system has produced a vast body of rules which are as 'determinate as any statutory rules'.
14 These determinate precedents, he states, can only be altered by statute. In discussing this proposition Hart provides three contrasting pairs of facts which he sees as an 'honest description of the use of precedent in English law'. Firstly he states there is no single method of determining the rule for which a given authoritative precedent is an authority. However in the vast number of cases it is obvious. Secondly, that there is often no authoritative formulation of a rule that is extracted from the case.
However he believes that when this precedent is applied in a later case there is often general agreement 'that a given formulation (of a rule) is adequate'. Thirdly he states that even when an authoritative rule is extracted from a precedent courts are open to apply 'two types of creative or legislative activity'. Firstly a court can by narrowing a rule extracted from a precedent reach an opposite decision through the finding of an exception i. e. distinguishing a case.
Secondly the court widens the rule by discarding a restriction of the rule by applying an earlier precedent or statute where the restriction was not required. RONALD DWORKIN. Dworkin received BA degrees from both Harvard College and Oxford University, and an LLB from Harvard Law School and clerked for Judge Learned Hand. He was a professor of law at Yale University Law School from 1962-1969. He has been Professor of Jurisprudence at Oxford and Fellow of University College since 1969.
He has a joint appointment at Oxford and at NYU where he is a professor both in the Law School and the Philosophy Department. He is a Fellow of the British Academy and a member of the American Academy of Arts and Sciences. A. Expanded Text. Dworkin's theories are built on criticism of Hart's theory of positivism. Dworkin's theory is based on his view that judges do not make law. Dworkin dissects and adds elements to Hart model of primary and secondary rules. Dworkin's model of judicial decision making in hard cases makes use of "rules, principles and policies".
16 Sandra Berns labels this 'expanded text' which when compared to Hart's narrower view of the rules of law is an apt description. 17 Dworkin defines a "policy" as 'that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community'. 18 Dworkin defines "principle" as 'a standard that is to be observed, not because it will advance or secure an economic, political or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality'.
Rules in Dworkin's mind have a very narrow defined meaning. They are all-or-nothing, as he states 'if the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision'. Dworkin's "expanded text" therefore has additional elements of community/social principles and morality. Dworkin considers his expanded text as encapsulating the law to be used when decisions need to be made in hard cases by judges.
He believes Hart's theory places 'policies and principles' outside of the law, as merely 'extra-legal standards that courts characteristically use. '20 B. How Are Principles Applied? Principles in this context meaning both Dworkin's policies and principles, something Dworkin himself does in his work to simplify his analysis. In order to analyse the judicial process regarding law making, Dworkin proposes two conflicting scenarios regarding the status of principles: 1. They are within the law, binding and must be taken into account by judges making decisions. or 2.
They are beyond the law and are only extra-legal principles the judge is free to follow if she wishes – i. e. judicial discretion is used. 21 C. Straw Man. For proposition 1 he states, 'because judges are applying binding legal standards they are enforcing legal rights and obligations'. 22 In other words they are not creating new law. Under proposition 2 Dworkin contends that when 'a case is not covered by a clear rule, a judge must exercise his discretion to decide that case by what amounts to a fresh piece of legislation. '23 In other words it means judges are part time legislator creating new laws in hard cases.
This is how he sees Hart's view of decision making. He believes there may be an 'important strong connection between this doctrine' and the question of which of his two theoretical approaches to legal principles should be taken. Dworkin builds a "straw man" that the positivist's view appears on the face of it appears to be the correct one. He proceeds to knock down this straw man stating 'it is entirely unsupported by the arguments the positivists use to defend it. '24 Dworkin focuses on the positivist's view of "judicial discretion" to prove this.