Realist, The American Legal Realists And Hla Hart

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What is the role of legal rules in judicial decision making? Compare and contrast the perspectives of formalists, the American Legal Realists and HLA Hart.

How do judges apply the law? This question has stimulated many theories about how far legal rules guide a judge when it comes to their foremost job: decision making. Does a judge simply just apply rules to the facts of the case? Of course, “the importance of rules as a basic building block of law can hardly be doubted,” but it is argued that judicial discretion can also be a powerful tool when it comes to making judgements within the law. There are differing schools of thought on how far a judge can input their own views and in my essay, I will discuss whether legal rules and a judge’s
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Rule scepticism rejected the idea that rules were the starting point for judges. So, as mentioned before, the realists believe that judges only search for the rule after they have already personally made their decision. Rule scepticism also stated that it was extremely rare if say, a solicitor or lawyer can predict exactly what the outcome will be for their client (he or she that is accused of breaking the law). If we take the formalist approach by using the legislation as it is and apply it to the facts, then the law will become predictable and the realists argued that this is not a realistic view of what happens in court. Let’s take an example in the Supreme Court. Realistically, the lawyers on each side of the case will say to the judge that the law is on their side. The Supreme court judge will then have to ‘pick and choose’ by using discretion, which side of the case they preferred. After all, there must be only one winning party. What would a formalist do in this situation? Every judge has different opinions over the same piece of law and undoubtedly, if we gave a group of 10 judges the same case, the outcomes will be different. This is backed up by the quote, “general propositions do not determine concrete cases.” Making it clear that the realists believed the determinate part in legal decision making …show more content…
Hart was a lover of rules. He firstly critiqued the American legal realists by saying that rules should play more of a role in legal decision making than just a statement as to how judges will decide cases. In other words, judges can’t just apply a law which fits best with their already made decision, rules should have some sort of justification as to why they came to this decision. If a child is learning how to ride a bike, would they be more likely to learn through practice or through reading a bike riding book? Hart tries to explain that judges must have a ‘knowhow’ about how to apply the rules than just knowing the law by reading the books. When critiquing the formalists, Hart came up with the ‘open texture of law’ which suggested that judges could only use discretion in specific circumstances. For example, a word has its core meaning, however it is the outer reaches of the word or the ‘penumbra’ which may be unclear and judges must use their discretion to interpret the word. Or there may be weasel words used in a statute such as ‘reasonable’ or ‘likely’ which do not have absolute meanings and demands a judgement call. Hart shows that judges do look beyond the law, but their discretion must be relevant and fully informed. Neil MacCormick summarises Hart’s opinion, “legal rules both do and should leave a considerable scope for the discretion of

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