opposition to Hart
Not all cases can be solved by rules; rules cant solve complex cases. Some cases are indeterminate. A law not being a rule does not mean it is not law. there is one uniquely right answer to every case
Law consists of...
rules, principles (self evident), and policies which are all normative (standardizing) reasons in law
Policies are
what Bentham and Austin propose to be law(command backed by threat or sanction); social engineering arranging things or laws a certain way to get certain consequences.
Policy making should be
left up to the legislative; because the legislative are the group of people that the public has authorized to make those policies.. Judges should not make laws retroactively
Prinicples
explain inconsistencies in rules; they are determined by the history of the political community or the "political morality"; None of them are inherently true or universal to the political community. they can be changed
history matters in law
only to integrity
integrity
does not require adoption from principals of the past; it runs horizontally not vertically. Every law must be consistent with each other. Must all vindicate traditions of integrity or certain principles. (chain novel) there should be integrity throughout
Most important principle justice deals with
is equal concern
uniquely right result to every case (contrary to Hart)
is the one most consistent with principal that legal political community has adopted
To resolve an issue Judges...
must first identify the principle that is being vindicated
The super judge (Hercules)
solve cases by coming up with principles, which explain inconsistencies in rules, and eliminating the principles that are not consistent with principals of history of that particular body of law.
the best interpretation of law
is the one that explains what comes before
four types of hard law that he super judge must deal with:
1) constitutional law; if the law is indeterminate look at the whole constitution and its purpose to develop principle of constitutional theory.
2) statutory interpretation- must look at the general scheme of legislative power; are there principals that c
Judges should solve issues based on
subjective principles of the law, but this task is often clouded by subjective personal beliefs that they may believe to be their subjective principles.