Hart on Judicial Discretion

Problemas, Forthcoming

19 Pages Posted: 26 Feb 2012

See all articles by Roger Shiner

Roger Shiner

University of British Columbia Okanagan; Okanagan College

Date Written: September 30, 2011


H.L.A. Hart’s The Concept of Law (Hart 1994) contains many passages that have become iconic for legal theory. This essay focuses on Chapter 7, sections 1 and 2, and Hart’s comments about judicial discretion in the context of Ronald Dworkin’s well-known attack on the idea of judicial discretion in his essay “The Model of Rules.” Specifically, the paper undertakes three projects. The first project is to defend the importance of the fundamental picture that Hart presents in Concept, Chapter 7 of common-law judicial rule-making. Hart represents such rule-making as a balance of certainty and flexibility, and he is correct to do that. The second project is to argue that Dworkin’s attack on the positivist model of common-law judicial rule-making as an exercise of “strong discretion” fails. The idea, central to the meaning of “strong discretion” that courts are not “not bound by standards set by the authority in question” cannot be established. The third is to argue that Hart is his own worst enemy. The language, metaphors and images he uses to present his account of common-law judicial rule-making open the way to Dworkin’s critique. They also reveal Hart, if the language, metaphors and images are taken seriously, to be precisely the kind of formalist or deductivist about adjudication that he is ostensibly in Concept Chapter 7 criticising.

Keywords: Hart, Dworkin, judicial discretion, common law, judicial rule-making, legal positivism, rule-scepticism, formalism, open texture, authority, certainty, flexibility

Suggested Citation

Shiner, Roger, Hart on Judicial Discretion (September 30, 2011). Problemas, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2008417

Roger Shiner (Contact Author)

University of British Columbia Okanagan ( email )

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