The ideal of the so called "hard case" defined by Professor H. L. A Hart dethrones the pure positivists theory that judicial decisions cannot be the mechanical "slot machine". Due to this controversial nature of law Hart suggests there exists a boundary where the desired outcomes can be reached from pure reference to precedent and legislation to where a judge has to interpret statutes and therefore use 'creative legislation' in which they constitute new law through "extra-legal standards".
In direct opposition to these beliefs Professor Dworkin refutes the idea of judges being given "legislative freedom" consequently stating judges merely apply the "principles" behind the entirety of the legal body in their judgements. Though conceding that there exists cases where controversial decisions are to be reached, he views the judicial system and the 'real world' as being coercive, implying that within his "legal principles" is the framework that encapsulates the moral, religious and all other views of our society.
In contriving such an ideal Dworkin declares the existence of a connection between law and morality. Yet in his explanation of these vague and metaphorical so called "principles" withholds no real purpose in the world filled with anxiety and concern over the body which is our legal system. What is a "hard case"? Bentham's and fellow positivist's1 combined with Schauer's formalistic2 theory defines law as a system of "mechanical jurisprudence". A system where judges should read and interpret legislation according to the "rigid definition"3 of every minute word in every statue, attempting to provide equity for all.
According to Hart "formality leads to be governed by the rigidity of words". Yet in the instance of a "clear case"4 where "it is clear a specific rule applies"5 formality can be appropriate and Schauer even states it can be "the lesser of two evils"6 but when conferred with the instance of a hard case major imperfections upon the system of law are witnessed in which the overseeing ideal of justice is overlooked for mere formality. 7 Though "clear cases" form a majority of the cases that arise in our society8 there are cases which are brought to trial that have a sense of uncertainty about them.
A clash of the ideal of law and the wording of the statue exists or even between two conflicting ideals exist within these cases and these are in fact what Hart defines as "Hard Cases". Hart's idea of a "hard case" appeals to "a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out". In these cases general terms are involved in the statue that refer to a clear core yet there is also "fuzzy ground" where there is less certainty of the application of the word in such cases the application of purposive9 ideology is used.
The "open texture"10 of words in statues coupled with the unpredictability of human behaviour are the limiting factors that cause the existence of such cases11. Therefore it is essential that judges use a purposive approach to attempt to unravel the hidden contextuality of the words and reach a just outcome. Hard cases such as the Riggs v. Palmer12 and Henningsen v. Bloomfield Motors Inc 13 are clear examples of rulings where the pursuit of formalistic14 goals would have harmed the purpose of the statue. Thus the judges used "constructive legislature" to rule in the favour of society.
This application of "case by case"15 justice is ideal for the circumstance of hard cases but has come under criticism. Atiyah labels it as an "unpredictable ideal"16 where "efficiency"17 is sacrificed and overall confirms his belief that law reform to change the system to one acting on a case by case basis is not possible. But I am of a differing opinion. However unachievable it seems Atiyah's claim that legal reform is impossible18 should not be accepted. Hard cases are of such a nature demanding change and if we are to achieve or aims of justice and stability reform is the only way of achieving it.
But in reality the legal system is not of either extreme it is a mix that achieves the right decision a majority of the time but in the occasion of the hard cases the right outcome is often unclear. 19 Dworkin in contrast to Hart believed that even in what Hart termed hard cases there is a uniquely distinct answer which is dictated by the law20. Therefore he actually argues that there are no such things as "hard cases" due to their definition of being indeterminate. He concedes to Hart that there are cases where answers are not clear and answers cannot be mechanically derived21 from the law.
Controversial judgements have to be made but he states that in hard cases the law is fully determinate and can be solved within the law. Dworkin's ideal of the "principles" of law as legally binding standards22, which encompass the law, enables his formulation upon hard cases to become apparent. The idea of a link between law and morality is not one there is sufficient room to discuss in this essay but one in which Dworkin sides with the natural theorists. And this naturalist theory influences his views, he achieves his explanation of his "principles" from a redefinition of law itself placing law above and encompassing all social factors.
Though naturalists poses that nature23 oversees the legal system Dworkin believes it is law that oversees nature. At first Dworkin's "principle's" appears contrary to Hart's reasoning of hard cases being indeterminate due to his theory of rule being of an "all or nothing"24 nature. But there is nothing about Hart's account of a rule of recognition25 that inhibits it from encompassing, as a matter of judicial convention, content-based tests of legal validity26 an incorporation that is in fact familiar to Dworkin's "principles".