H. L. A Hart's Discretion In Hard Cases

H.L.A Hart said that judges have a strong discretion in deciding cases especially in ‘hard cases’. Hard cases are a general name for those cases where the law is unclear or ambiguous as to whom the judge should rule due to a lack of relevant precedent. The ideal of the so called "hard case" defined by H.L.A Hart depose the pure positivists doctrine that judicial decisions cannot be the mechanical "slot machine". Boumediene v Bush was a hard case because habeas corpus was a rule in United States Constitution. And desired results can be attained from pure reference to case law and legislation to where a judge has to interpret statutes and therefore apply 'creative legislation' in which they constitute new law through extra-legal standards due

Hart believes that judges should have strong discretion but what Hart means by this is that in open textured areas or unclear areas, judges should be conferred with discretion. Even Hart did not say that judges should have absolute discretion. The exercise of discretionary powers must be within the parameters of the circle. In this case, the judge has the strong discretion to decide whether the ‘enemy combatants’ can apply for habeas corpus petitions in the Courts of the United States because judges has strong discretion in deciding the hard

Scalia defends the right of the Bush administration to proceed in its “war on terror” with utter neglect for the Constitution and elementary democratic rights . In Riggs v Palmer , the judges exercised strong discretion in light of the dissenting judgment. The statute is silent. It did not mention whether a murderer can inherit but at the same time it did not mention that a murderer cannot inherit. However, common and moral sense dictates that it is more likely that if the legislator had envisaged such scenario, they would say that a murderer cannot inherit. In Maung Ko Gyi v. Daw Ohn Khin , the statute is clear. A promise to and from a minor cannot be enforced. However, the judges in the case had referred to Burmese Customary Law in the Dharmata which contained similar provisions.

Besides that, Hart says that it is determinate at its core, and there the linguistic form in which it is expressed is well-defined enough for it to form the basis of legal decisions in general. But as the law beyond this core the rules become less established, reaching into a ‘penumbra of uncertainty’ where the vital concepts are limited by ambiguous language. This important indeterminacy is responsible for hard cases, and he explains it with reference to the open-textured nature of language. Hart’s favorite example for explaining open-text redness in law is the general term