Yes. In my opinion the ‘debate’ H.L.A Hart (1917-1992) and Ronald Dworkin (born 1932) over whether or not judges has ‘strong’ or ‘weak discretion’ has relevance in this particular issue as its stated by Lord Justice Jacob that ‘conservatives like to insist that their judges are strict constructionists, giving the Constitution and statutes their precise meaning and no more while Liberal judges tend to be expansive about things like equal protection, while conservatives read more into ones like “the right to bear arms.”.
Legal positivists, such as H. L. A. Hart, claim that in hard cases judges do exercise discretion. He has said important matters that accurately represents this feature of common-law judicial rule-making, and that there is no …show more content…
SHINER, accessed 30 August 2016.] …show more content…
He interprets that the positivist's claim that a judge has discretion has a meaning that the judge has the right to make any decision he wishes and that he is not obligated to arrive at any particular decision unlike Hart. This is the claim of the legal positivist to which Dworkin objects as he understands rules in the positivist sense. Rules are statements of law which judges are obligated to apply when it is deemed to be relevant[ Ibid ]. Dworkin and positivists who are alike believe that in most cases, in this case which Dworkin believes to be an easy cases, judges arrive at decisions almost mechanically by applying rules. In such cases, there is an agreement that judges do exercise no discretion in forming decisions. In short, he believes that the job of a judge is a very difficult one, one that is so difficult so as to be Herculean[ Hart On Judicial Discretion', Roger A. SHINER, accessed 30 August 2016.]. However, Dworkin thinks that there is a correct decision, a decision which accurately weighs principles, protects natural rights, and is consistent with the society's morals even in very hard cases. Judicial law-making operates within standards set by the authority concerned, not outside
Legal positivists, such as H. L. A. Hart, claim that in hard cases judges do exercise discretion. He has said important matters that accurately represents this feature of common-law judicial rule-making, and that there is no …show more content…
SHINER, accessed 30 August 2016.] …show more content…
He interprets that the positivist's claim that a judge has discretion has a meaning that the judge has the right to make any decision he wishes and that he is not obligated to arrive at any particular decision unlike Hart. This is the claim of the legal positivist to which Dworkin objects as he understands rules in the positivist sense. Rules are statements of law which judges are obligated to apply when it is deemed to be relevant[ Ibid ]. Dworkin and positivists who are alike believe that in most cases, in this case which Dworkin believes to be an easy cases, judges arrive at decisions almost mechanically by applying rules. In such cases, there is an agreement that judges do exercise no discretion in forming decisions. In short, he believes that the job of a judge is a very difficult one, one that is so difficult so as to be Herculean[ Hart On Judicial Discretion', Roger A. SHINER, accessed 30 August 2016.]. However, Dworkin thinks that there is a correct decision, a decision which accurately weighs principles, protects natural rights, and is consistent with the society's morals even in very hard cases. Judicial law-making operates within standards set by the authority concerned, not outside