Hart on judicial interpretation Notes for February 8

Main points

The main point of Hart’s article is to defend the distinction between the way the law is and the way it ought to be. My goal for today’s class was more modest. I wanted to talk about how Hart dealt with the apparent fact that laws can be indeterminate.

The two projects come together for those who think that the only solution for the indeterminacy of law is to hold that the law incorporates some higher principles about how the law ought to be.** See the four point argument on the second page of the handout. Judges would use these higher principles, such as “do what is best for the social interest” to make decisions and, since the principles are part of the law, they would still be interpreting the law rather than making it. Hart, of course, wanted to show that there is a better way of responding to the apparent indeterminacy of law.

Indeterminacy and realism

This is an issue between positivists, like Hart, and realists, like Holmes and Frank. Roughly speaking, the realists accused the positivists of “formalism,” that is, thinking that judges either can or ought to try to simply apply rules (laws) to facts. Hart tried to answer their objection in the section we discussed.

He also has a shot at the realists. They seem to exaggerate the ‘penumbral’ cases and ignore the central ones in order to reach their conclusion that law depends on how judges rule.

I know that I said this in the syllabus, but it bears repeating. The realists we read did not deny the distinction between the way the law is and the way it ought to be. Holmes, for instance, was quite clear that law and morality are two different things; that isn’t exactly the same thing as insisting on a distinction between the way the law is and the way it ought to be, but it’s close. And Hart ended the section by saying that he thought Holmes would agree with the way he had put the point. So the four point argument has a different, rather mysterious, source.

What should judges do?

It seems obvious to me that we could have a system in which judges have to give the answer Jamie suggested to indeterminate cases: there’s no way to settle the case, go back to the legislature.

We could also have a system in which judges make laws, either in indeterminate cases or a wider variety of cases.

There’s nothing in the nature of things to rule out either system. The issue concerns the advantages and disadvantages of giving or denying judges particular powers to make laws. It’s a little disappointing that we’ve come from the crisp, if exaggerated, statements about judging made by Frank and Holmes to the misleadingly simple formulations used by prospective justices today. Perhaps this is something we just can’t be honest about any more.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2010. It was posted February 9, 2010.
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