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Thesis Judges make law in hard cases, and pretending they discover it does more harm than good

Deepa Kartha Fellow
· 6 replies
LawAmericanAnalyticH. L. A. HartRonald DworkinTimothy Williamson#hard-cases#judicial-discretion#legal-realism#open-texture
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Where it stands

Here is my thesis, from someone who has read too many judgments.

Hart's famous example is a rule forbidding vehicles in the park. Cars are clearly covered. But a bicycle? A child's electric toy? A decommissioned tank set up as a war memorial? Every general rule has a core of settled meaning and a penumbra of uncertainty, what Hart called open texture. In the penumbra, Hart said, judges have discretion: they make law, interstitially, within limits.

Dworkin denied this. Even in hard cases, he argued, the law includes principles that bind the judge, and there is (in principle) one right answer. The judge discovers the law; she does not invent it.

I think Hart was right and that the discovery rhetoric is not harmless. It hides choices. When a bench says "the Constitution requires" an outcome that another bench, equally learned, would have reached the opposite way, the language of discovery shields the judges from accountability for the choice they made. The legal realists said this bluntly a century ago, and Holmes said the life of the law has been experience rather than logic.

Better, I think, to say honestly: here the law ran out, here is what we chose, and here are our reasons. That makes the reasons the thing to argue about.

Objections welcome, especially from people who have actually written judgments.

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6 replies

For the thesis 2

  1. Sana Rizvi

    For Fellow

    For. I have covered courts for years. The same question, on similar facts, goes one way before one bench and another way before a different one, and lawyers quietly plan around which judges are sitting. Everyone in the corridor knows this. Only the judgments pretend otherwise. Deepa's point about accountability is exactly right: the discovery language makes the choice invisible to the public that has to live with it.

    Helpful · 1
  2. Hamza Qureshi

    For Fellow

    For, with your revision. Kelsen made a version of this point: a judicial decision is itself a norm-creating act within the frame the higher norm allows. Interpretation tells you the frame; it does not tell you which point inside the frame to pick. That is neither pure discovery nor free legislation.

Against the thesis 3

  1. Thandeka Mokoena

    Against Fellow

    Against. A friend who clerked for two years at a constitutional court tells me the judges did not experience hard cases as open choices. They experienced them as problems of fit: which principle best explains the existing law, which reading would make the constitutional text hang together. That felt like constraint, not discretion.

    More importantly, telling judges they are making law in hard cases invites them to think of themselves as legislators, and unelected ones. The discipline of having to justify a result as already the law is part of what keeps courts honest. Remove it and you get more politics, not more candour.

  2. Oskar Nyberg

    Against Fellow

    Against, from an unexpected angle. I have read a lot about vagueness. The existence of borderline cases does not by itself show that there is no fact of the matter. On epistemicist views, which Timothy Williamson has defended, vague predicates have sharp boundaries that we cannot know. If something like that holds for legal concepts, a judge in the penumbra might be trying to find an answer that exists but is hard to see. "Discovery" would then be accurate, and the honest phrase would be "we may be wrong", not "we chose".

    I don't fully believe epistemicism. But it shows the inference from open texture to discretion needs an extra premise.

    Helpful · 2
  3. Khalid Mahmood Awan

    Against Fellow

    Against, gently. After thirty-one years I would say the debate is about a small number of appellate cases. In a sessions court almost nothing is a hard case in Hart's sense. What matters to the people in front of you is that the judge believes himself bound. The rhetoric of discovery is a discipline as well as a mask. Deepa's revision I can live with, as long as judges are not encouraged to see choice everywhere.

    Helpful · 1

Other replies

  1. Deepa Kartha

    Fellow

    Thandeka, the point about judges thinking of themselves as legislators is a real cost and I accept it. Oskar, that is ingenious, and slightly maddening.

    Let me revise. I think "discover versus make" is a false binary. Judges in hard cases are constrained by principle and still choose among readings the principles allow. My actual complaint is narrower: the judgment should say when it is choosing. Would either of you accept that?

    Helpful · 3