Analysis Of Dworkin On Judicial Discretion In Hard Cases

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Dworkin on Judicial Discretion in “Hard Cases”
Lu Zhao Boyu (Bozy) | A0127866R

In the standard courtroom, one could reasonably expect the judge to be the one responsible for the holding of a case. However, does and should the judge exercise his own discretion when deciding cases? Prominent legal theorist H. L. A. Hart claims that judges do exercise discretion, especially in “hard cases”, where there is no pre-existing or unambiguous rule. To this matter, Hart’s brilliant student Ronald Dworkin offers an alternative theory, which argues that judges do not have discretion and should follow principles instead of rules, even in “hard cases”. This report will put forth Dworkin’s case and evaluate his premises by discussing important arguments that exist both in favour and against them, in terms of theoretical soundness and practical feasibility.
To begin with, Dworkin distinguishes between “weak discretion” and “strong discretion”, specifying the latter to be the topic of contention. By “strong discretion”, he refers to judges exercising judicial discretion
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However, as rules are applied all-or-nothing , they are inherently restricting and are obstruct judges from determining the “right answer”. As such, Dworkin proposes that judges should view law as a system of principles, policies and other standards , rather than rules, as the former has a range of weight or importance , hence not as limiting. Also, principles may represent public standards of morality , and this means that for Dworkin, judges must draw on these societal perspectives and not political persuasion. Therefore, to follow closely these principles of the judicial system and society, judges cannot have discretion. Overall, Dworkin’s theory is theoretically sensible as it prevents the propagation of unfair or bad rules, hence allowing judges to adequately protect the rights of

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