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H.L.A. Hart, Second Edition$
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Neil MacCormick

Print publication date: 2008

Print ISBN-13: 9780804756785

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804756785.001.0001

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Judicial Discretion and the Judicial Role

Judicial Discretion and the Judicial Role

(p.153) Chapter Eleven Judicial Discretion and the Judicial Role
H.L.A. Hart, Second Edition
Stanford University Press

In The Concept of Law, H. L. A. Hart reinstates the thesis that laws genuinely are rules, explicable as that special kind of social rules found in a 'union of primary and secondary rules'. He rejects the formalist view of legal rules and demonstrates that his own theory is essentially not a formalistic one. To this end, he explains how legal rules both do and should leave a considerable scope for the discretion of judges and other officials in dealing with particular cases. His goal is to emphasize the errors of formalism identified by the rule sceptics while correcting any radical form of rule scepticism itself. This chapter examines Hart's arguments about judicial discretion and judicial role. It first discusses the debate between proponents of legal realism and formalism before turning to assess the limits of discretion and the diversity of legal standards. The chapter concludes by looking at the common law and the controversy about rules.

Keywords:   H. L. A. Hart, judicial discretion, judicial role, law, rules, realism, formalism, common law, legal standards, judges

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