I shall discuss the issues surrounding the court’s discretion when deciding the ‘difficult case’. I will discuss theorists Hart and Dworkin, and explain how I’d decide this preliminary question.
This is a ‘hard case’, meaning there is a lack of applicable precedent, it’s the first case of its kind, therefore no legal direction on how to decide the case. Justice Stag (J.S) and Judge Devorah (J.D) agree the precedent case concerning hotels wasn’t applicable. However, disagree about the scope of freedom they acquire when deciding the case.
J.S agrees with positivist Hart. J.S is an indeterminate judge, believing that occasionally law provides no clear answer, no matter how vigorously we look. J.S considers the absence of a clear rule provides the court the opportunity to decide however they found fit, on the merits of the case.
Hart believes in strong judicial discretion. This is the notion that when law ‘runs out’, lacking guidance on certain issues, judges become legislators, allowing them to create a solution by establishing new laws as they found fit.1 Judges with strong discretion have a wide margin of discretion resting upon their perception of the world and political views. Hart argues this procedure of retrospectively creating laws is adequate. Defendants should’ve appreciated the gap in the law, realising the possibility of precedent being created, finding them guilty. Hart poses a conundrum, the rule states “no vehicles in the park”. It’s obvious cars wouldn’t be allowed, but what about bikes, or ambulances in emergency situations? This emphasises that sometimes judges creating laws are essential as the legislation doesn’t cover every situation possible. Dworkin disagrees as judges often disagree (seen in dissenting judgements) meaning law would be created without unanimous agreement.
Hart believed 'the law' is made up of a Rule of Recognition. Legal systems are founded upon this unique ‘rule’ which provides a validity test for laws and provides for recognition and consolidation of a legal system.2 Every legal system has one basic norm, a body which creates laws, for instance, the UK has the doctrine of parliamentary sovereignty. Rule of Recognition is produced from social acceptance. Although, it’s not essential that everyone approves of it, for it to exist. Legal officials evaluate citizen’s behaviour against rules determined by the rule of recognition and decide what the decision will be. The population participates by accepting and following the rules.
Hart discusses a ‘model of rules’, the law being a structure of relating primary (duty-imposing) and secondary rules (power-conferring). Hart believes judges have a dual duty of interpreting and deciding the law when the law ‘runs out’. However, he restrains this powerful position by affirming judge’s discretion must be impartial, acknowledge all affected parties’ interests and judgement must be neither arbitrary nor mechanical.3
J.D agrees with Dworkin. J.D is an idealist believing the law never runs out if we look and think hard enough it’ll tell us the right thing to do. In absence of clear rule, judges must seek the law beyond the meaning of previous rules.
Dworkin believes in a weak judicial discretion. This is the idea when the law ‘runs out’, there is still law. Judges can’t construct law haphazardly, they must consider legal principles and policies in related cases to detect potential legal grounds of the hard case.4 Judges must consider other cases, moral standards and principles to fill in the gaps, providing gapless law and the correct decision will be discovered. Legal principles in similar cases are non-binding, therefore judge discretion remains, but is limited.
Dworkin concludes every case has only one right answer through his example of judge Hercules. Hercules’ role is to recognise the best reasons for established law and apply these in hard cases. Hercules must be familiar with all cases, laws and institutional writers, in order to find the one right answer. Dworkin stated, “The law may not be a seamless web, but the plaintiff is entitled to ask Hercules to treat it as if it were”.5 This emphasises there is always principles to latch onto to find the right answer.
Dworkin distinguishes rules and principles. Rules are all-or-nothing, for instance, “thou shall not kill”, applies either 0% or 100%.6 Principles have a weight dimension providing supporting reasons. Principles are limited by fit, practice, and history thus, judges don’t have a wide margin of discretion. This is apparent in Riggs v Palmer 7 the court applied an important principle of ‘no person may profit by his own wrong’. This illuminates that courts find answers through the influence of both rules and principles.8
Dworkin criticises Hart’s approach. Judge’s shouldn’t make law like legislators, they decide on matters of law, not create it. Also, backward-looking laws shouldn’t be created, instead judge’s must find principles in cases, legislation or constitutional documents and balance them with the present case to conclude the right answer. Positivism fails to provide a satisfactory explanation of our institutional practices because it permits judges to create laws as they please when the law ‘runs out’. Positivism fails morally as it allows for unjust laws as it considers laws on sources, not moral grounds.9
As the third Justice in the panel, my view is that the court has the discretion to decide the ‘difficult case’, to the extent of weak judicial discretion. I believe it’s within the court’s powers as there’s no relevant precedent to help decide this case. Judges have a duty to apply the law to a case. If judges use weak discretion when deciding a hard case, they’re simply discovering a pre-existing law, rather than creating the law.
The court can decide the case to the extent of weak judicial discretion. I think this because there are a countless number of laws and legal principles. It seems logical to me that judges would adopt these established legal principles. In my opinion, it’s the sensible option as judges aren’t legislators, they don’t want to detract from the fundamental legal principles which are already widely accepted and created by lawmakers. Instead, judges should always have the ability to gap fill. I believe if judges were given strong judicial discretion, occasionally it could be considered as stepping the mark or interrupting the well-established doctrine of separation of powers, which countries such as the UK have adopted. Strong judicial discretion should be used in the exception of the necessary overruling of a law.
I would decide the preliminary question by following the precedent case about hotels and would take into account the weight of the principles established. I consider these principles to carry heavy weight as both cases concern stolen money, a cabin is comparable to a hotel room and both were without negligence of passenger or owners of the hotel or steamboat. I consider the distinction between a hotel and a steamboat to be a minor issue. I would hold that the steamboat owner was liable to indemnify the money stolen. I have to come to this conclusion as the established principles in the hotel case provided reasons as to why this is the best explanation. This reasoning also includes a moral aspect, which I believe is important as it provides us with the right answer for the case and provides relating decisions for relating cases.