Hard Cases

Legal cases can be termed “hard” cases if they raise issues that are highly controversial, issues about which people with legal training disagree. The ongoing debate over the completeness of the law usually concerns the extent “legally determinate”, or decidable according to existing law.

H. L. A. Hart’s The Concept of Law is still the clearest and most persuasive statement of both the standard theory of hard cases and the standard theory of law on which it rests. For Hart, the law consists of legal rules formulated in general terms; these terms he calls “open textured,” example, moral and political) grounds, and thereby exercise judicial discretion to make, rather than apply, law.

In Ronald Dworkin’s view the law is richer than Hart would grant; he denies that the law consists solely of explicit rules. The law also includes principles that do not depend for their legal status on any prior official recognition or enactment. Dworkin claims that many cases illustrate the existence of legal need for judicial discretion do not follow from the existence of open texture in legal rules.

It would be a mistake, though, to dispute Hart’s theory of hard cases on this basis alone. If Hart’s claim about the “open texture” of general terms is true, then we should expect to find legal indeterminacies even if the law consists of principles in addition to rules. Legal principles, as well meaning. Most interesting and controversial cases will occur in the penumbra of both rules and principles.