Hard Cases and Legal Determinacy
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In foregoing chapters we examined mainly two views on the role of strong discretion in the application of law: Hartian positivism and Dworkin’s interpretive theory. Both views posit similar conditions to assert that a case is a hard case. Notwithstanding, they disagree about the relationship between hard cases and legal indeterminacy, or absence of right answer, and hence, about the need for strong discretion. For Hartian positivism, hard cases, i.e. cases in which the truth-value of a proposition is considered to be controversial or uncertain, lead to legal indeterminacy. For this reason, settling hard cases requires the judge to exercise strong discretion1.
KeywordsHard Case Language Game Internal Relationship Interpretive Scheme Sceptical Challenge
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