Book contents
- Frontmatter
- Contents
- Preface
- Acknowledgments
- 1 The internal morality of law
- 2 On formal justice
- 3 Legal formalism and instrumentalism - a pathological study
- 4 Moral aspects of legal theory
- 5 Formal justice and judicial precedent
- 6 Derivability, defensibility, and the justification of judicial decisions
- 7 Constitutional interpretation and original meaning
- 8 A preface to constitutional theory
- 9 Basic rights and constitutional interpretation
- 10 Critical analysis and constructive interpretation
6 - Derivability, defensibility, and the justification of judicial decisions
Published online by Cambridge University Press: 10 December 2009
- Frontmatter
- Contents
- Preface
- Acknowledgments
- 1 The internal morality of law
- 2 On formal justice
- 3 Legal formalism and instrumentalism - a pathological study
- 4 Moral aspects of legal theory
- 5 Formal justice and judicial precedent
- 6 Derivability, defensibility, and the justification of judicial decisions
- 7 Constitutional interpretation and original meaning
- 8 A preface to constitutional theory
- 9 Basic rights and constitutional interpretation
- 10 Critical analysis and constructive interpretation
Summary
Philosophers of law generally appear to assume that there is a very close connection between a judicial decision's being required by law and its being justified. In this paper I shall try to show that this assumption is mistaken.
Legal theory recently has focused on the problem of “hard cases,” in which there is reason to doubt that the law requires a particular decision, to the exclusion of alternative possible decisions. The relevant question is not whether the law requires that a judge render some decision or other, thus deciding those cases, but whether the law that can truly be said to exist before a decision is rendered requires one particular decision. Discussions of this issue often seem to assume that this is equivalent to the question, whether a particular decision is uniquely justifiable.
Less attention has been paid to what we may call “easy cases,” in which it seems clear that the law requires a particular decision. What is said about them, however, does appear to assume that a particular decision's being required by law is equivalent to its being justified.
Those who believe that there is a significant connection between a judicial decision's being required by law and its being justified would no doubt agree, upon reflection, that the connection is not one of equivalence. Some qualification of the view under discussion would seem to be required by considerations such as the following.
- Type
- Chapter
- Information
- Moral Aspects of Legal TheoryEssays on Law, Justice, and Political Responsibility, pp. 119 - 140Publisher: Cambridge University PressPrint publication year: 1993