Hart & Dwarkin [ Hard Cases]
Hart has a story about vehicles in the park.
Heart says some cases are easy cases. The words of the law are clear and judges just
have to apply them. (it is hard to figure out what a case stands for “reasoning” . –
different people draw different things from cases)
- When cases are published, they are published with a head note. This
summarizes the case
- Heat: in order to understand the case= you can just read the head note
- Heart: sometimes the law is vague and it is not clear what should happen;
judges have discursions that they are expected to use. So a case could go
either way and judges must make a decision
- Hart suggests: is that where a case is vague and it seems that no
particular decision is dictated by the case; one reasonable thing for judges
to do is to consider what would be a appropriate social policy.
o Moran: Hard Cases: hard cases are those cases where it is not clear
what the president means for a particular case; where the words
of the law are insuffienct to determine what a similar case could be
- HART: some hard cases judges must exercise reasonable discretion. [ a
reasonable way to do this is to consider social policy]
Judges are not elected reperstivies- true in all great Britain and Canada and in some
jursisticans of the United States. Some jurisdictions in the United states they are
elected (must run campaigns)
- Generally appointed for life (or in Canada till 75) – you can not be
dismissed for making a legal error. You would have to do
something terrible to be removed.
- In a standard case judges are not responsible to the citizenry.
- Violent raid – accused was very drunk. In his intoxicated state he
didn’t know the difference between right and wrong. Temperary
insanity [ he was acquitted]
o Public outrage
o No one out of the supreme court
o Politicians to change legislation – judges not responsible
- It’s regarded as a proper way for running a democracy to make
sure the judiciary is separate from the legislator. Judges having to
decide that piece of legislations isn’t constitutional. That would be
endangered if majority of opinion could get rid of judges. (secure
form political pressure)
- DWARKIN: that is not for unelected officials to consider issue of
social policy. Issues of social policy is exactly why we have elected
o Difference between issue of principles and issue of policy.
o ISSUE OF POLICY.
Heart: has in mind cost benefit analysis for society as a
whole. We consider wheatear a decision will benefit