Judicial Discretion And The Nature Of Law: What Is The Solution To Hard Cases

Introduction

Judicial discretion and the nature of law is an important topic to discuss and analyse because there is no concrete solution to ‘hard cases’ till this day. As Trevor Ryan stated in the introduction of his essay that judicial discretion and rule of law can be solved by an innovative approach to the separation of powers theory. That is a statement which I believe is true and could bring major change to the judicial system in Australia. This statement is the conclusion of this essay but fails to deeply analyse how the separation of powers is important or how it can be used as an innovative tool to better the judicial system. The essay briefly touches on Austin and the command theory. The paper then goes on to discuss Hart and his rule of recognition, Dworkin and his moral reasoning, with finishing the discussion by briefly talking about the separation of powers. This essay will be reviewing Ryan’s work but weighing out strength and weaknesses and finishing off with potential counterarguments.

‘Hard cases’ – Hart

Starting this review is reasonable by analysing Hart’s observations about ‘hard cases’. Hart stated that the legal system is best described as a set of primary and secondary rules. The primary rule exists to regulate society for a harmonious coexistence, which is achieved by criminalising crimes like violence, theft and deception. As Ryan states in the second paragraph, secondary rules are better at explaining how such rules come about, for they are neutral to content. This is because the scope of the second rule varies and allows the law to change with time. This then leads us to Hart’s core and penumbra, where he distinguished between easy and hard cases. The distinction between core and penumbra is that the core is where there is a single and settled answer, whereas the application of the penumbra is where decision makers have scope to decide cases, whether it’s through their moral self or due to past precedent is a different issue. In Ryan’s paper, it also suggests that because of Hart’s theories, critics raised due to missing pieces of framework from his ideology. [1: Michael Payne, ‘Hans System of a Legal System’ (1976) 18(2), William and Mary Law Review ] [2: Ibid. ] [3: Bojan Spaic, The Unbearable Lightness of Adjudicating Hard Cases: Hart, Dowrkin and the Institutional Control of Legal Interpretation ] [4: Legal Reasoning, the Rule of Law, and Legal Theory: Comments on Gerald Postema, “Positivism and the Separation of the Realists from their Skepticism” ]

‘Hard cases’ – Dworkin

Ryan’s paper vaguely discusses why Dworkin criticises Hart’s theories and frameworks. He states that the legal system is more than rules where judges can use moral reasoning to solve a legal problem. Dworkin’s methodology differs considerably from Hart’s, that general theory of law must be normative as well as conceptual. Dworkin, who can be regarded both as a natural law theorist and a legal positivist. Although he doesn’t necessarily believe in Austin’s theory of commands, he does believe in moral rules and values. Dworkin agreed with the concept of wicked or unjust laws are inconsistent with morality. But when it comes to legal positivism, although he stated that morality goes straight to the heart of law, but judges shouldn’t rely on morality to fill in the gaps for ‘hard cases’. In this instance, Hart can also be considered a legal positivist because he stated that there is no necessary connection between the law and morality. Ryan’s comment in his paper about Dworkin’s interpretation and how that has influence over how moral reasoning has a role in determining the resolution to such disputes. This is contradictory to Dworkin’s concept of wicked or unjust laws are inconsistent with morality. [5: Bojan Spaic, The Unbearable Lightness of Adjudicating Hard Cases: Hart, Dowrkin and the Institutional Control of Legal Interpretation ] [6: Thom Brooks, Between Natural Law and Legal Positivism: Dworkin and Hegel on Legal Theory (2009). Georgia State University Law Review, 23(3), pp. 513-560, https://ssrn.com/abstract=1350255 ]

Hart v Dworkin

Hart, a soft positivist, believed that in hard cases, judges create law based on subjective isn’t given as much recognition for the role it plays in ‘hard cases’, especially in criminal law. Debates about whether homosexuality and prostitution induce harm to others. In terms of hard cases that arise in the penumbra of uncertainty that surrounds legal rules, hart believes that rules have a core agreed meaning. Dworkin, on the other hand, believes that even in hard cases, there are right and wrong ways to read and apply the statute and precedent. The case of McLoughlin v O’Brien [1983] where proximate relationship was needed for the plaintiff to recover damages for emotional harm suffered. As Hart believes that if the law is unable to guiding human conduct, the fault lies with the legislature and the judge must do the best with the tools they have. This is against Dworkin’s concept of right and wrong ways to apply statute and precedent. [7: Bojan Spaic, The Unbearable Lightness of Adjudicating Hard Cases: Hart, Dowrkin and the Institutional Control of Legal Interpretation, pg 57 ] [8: Bojan Spaic, The Unbearable Lightness of Adjudicating Hard Cases: Hart, Dowrkin and the Institutional Control of Legal Interpretation, pg 189 ] [9: Ibid.] [10: McLoughin v O’Brien [1983] 1 AC 410.]

Rule of Law, Separation of Powers and Decision Makers

Rule of law and the doctrine of separation of powers go hand in hand. A. V. Dicey, a constitutional theorist, stressed three features of the rule of law. The most important being that no man is above the law and the importance of equity before the law. The separation of powers is a doctrine to avoid one group having complete power. Australia doesn’t have complete separation of powers, this is because some of the roles between the Parliament, Executive and Judiciary overlap. In Ryan’s paper, he argues by what standard would the reasoning be judged right or wrong – in which he backs his statement by stating that the reason for this dilemma is because the legislature only gets one chance to set the legal standard before it lands before the courts. It then goes on to state that for judges to voluntarily refer questions of legal meaning back to the originating legislature if all the tools available to a judge have been exhausted to no avail. I agree with this statement because this allows a lot more scope and flexibility for both the decision maker and the person bringing the application forward. This relates back to Hart’s core and penumbra set of rules. The only downside to this is that it would allow moral reasoning into the decision-making process, and that can be a good thing but how do we know when a judge is being unbiased from his/her past experiences or opinions. Another inconsistency that arises within Ryan’s paper is that he states through morality being exercised by judges, the ‘hard’ positivist theory can be endorsed. If the ‘soft’ positivist view is exercised by judges, it is highly unlikely that morality and a scientific approach to the law be exercised smoothly. The only possible way this can be achieved is through proper separation of powers being exercised. [11: Denise Meyerson, ‘The Rule of Law and the Separation of Powers’ (2004) Macquarie Law Journal ] [12: Ibid.] [13: Parliamentary Education Office, Separation of Powers: Parliament, Executive and Judiciary ] [14: Ibid.]

Conclusion

In Ryan’s paper, his conclusion is vague and somewhat uncertain, almost as if it requires the reader to do their own research. The introduction of Ryan’s paper started strong which stated that the solution to ‘hard cases’ is an innovative approach to the separation of powers theory. This was touched on briefly and allowed just enough information. It failed to mention that an innovative approach to the separation of powers can be through exclusively having the separation of powers, whilst judges deciding cases on precedent and morality, only when all other tools available for judges have been used and the case is still vague or ambiguous. Overall, Ryan’s paper was strong but was lacking a few pieces of information to create a flowing chain of events.