“Hard Cases” in Law
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 to which such hard cases are 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,” which means that they contain a “core” of settled meaning and a “penumbra” or “periphery” where their meaning is not determinate. For example, suppose an ordinance prohibits the use of vehicles in a park.
“Vehicle” has a core of meaning which includes cars and motorcycles. But, Hart claims, other vehicles, such as bicycles, fall within the peripheral meaning of “vehicle,” so that the law does not establish whether they are prohibited. There will always be cases not covered by the core meaning of legal terms within existing laws; Hart considers these cases to be legally indeterminate. Since courts cannot decide such cases on legal grounds, they must consider nonlegal (for 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 principles that are different from legal rules and that Hart’s “model of rules” cannot accommodate. For Dworkin, legal rules apply in an all-or-nothing fashion, whereas legal principles do not: they provide the rationale for applying legal rules. Thus, because Dworkin thinks there is law in addition to legal rules, he thinks that legal indeterminacy and the 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 as legal rules, contain general terms that have open texture. And it would be absurd to suppose that wherever the meaning of a legal rule is unclear, there is a legal principle with a clear meaning. Most interesting and controversial cases will occur in the penumbra of both rules and principles.