THE PROBLEM OF JUDICIAL DISCREATION IN HART-DWORKIN DEBATE: AN OVERVEIW OF MAIN POSITIONS


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Abstract

This paper deals with a philosophical explication of judicial discretion in the dispute between Herbert Hart and Ronald Dworkin, basic for the Anglo-American legal philosophy. Treating law as a system of rules, H. Hart emphasizes their “open texture” rooted in language, when, along with clear cases of use of legal terms and rules, there are borderline, problematic cases that require a judicial choice from existing alternatives, i.e. a discretion. H. Hart also conceives a moderate discretion as a means of ensuring flexibility and rationality of legal regulation, as well as the weighted solution of legal issues in accordance with social goals and values. This doctrine is contested by R. Dworkin as an inadequate description of a legal system and the delegitimation of the institution of law, which allows backdating of rights and obligations carried out by officials not elected democratically. According to the critic, the discretion is neither inevitable nor desirable. He proposes a model of law as an interpretative enterprise that includes various standards, primarily principles that ensure the proper application of rules and completeness of regulation. Being bound by his institutional debt and the best theory of the valid law, a judge always has sufficient reasons for a decision: for finding the unique right answer to any legal question.

The topicality of addressing this dispute is conditioned by the specificity (novelty) of its content and arguments as compared with similar positions in domestic Russian literature, discussing a number of important aspects of judicial discretion that are of theoretical and practical importance. The paper presents an overview of the main positions of dispute parties as well as of some of its results. In particular, the article emphasizes the significance of the debate for changing the structure of philosophical positions regarding judicial discretion, and the important role of R. Dworkin’s arguments in the ideological and methodological transformation of contemporary Anglo-American philosophy of law.

About the authors

Sergey Nikolayevich Kasatkin

Samara Law Institute of FPS of Russia, Samara

Author for correspondence.
Email: kasatka_s@bk.ru

PhD (Law), Associate Professor, Professor of Chair of Theory and History of State and Law of Samara Law Institute of Federal Penitentiary Service of Russia

Russian Federation

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