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11 Ga. L. Rev. 991 (1976-1977)
Policy, Rights, and Judicial Decision

handle is hein.journals/geolr11 and id is 1005 raw text is: POLICY, RIGHTS, AND JUDICIAL DECISION Kent Greenawalt* H L.A. Hart has rightly been recognized as the outstanding contemporary figure in Anglo-American jurisprudence. His deep insight, penetrating analysis, lucid and graceful expression, and wise judgment have illumined every subject to which he has put his hand, and all who are interested in the philosophy of law have been affected by his work. It is a special privilege for me to participate in this issue devoted to publication of his Sibley lecture, because I am one of those who have been fortunate enough to have studied under him. My early efforts were exposed to his searching, but always tactful and patient, criticisms in a tutorial setting; and this intimate exposure to his mind and personality has deeply in- fluenced my understanding of that elusive subject, jurisprudence. I. INTRODUCTION Among other things, Professor Hart has provided the clearest and most sophisticated explanation of law and the operation of a legal system from the perspective of analytical positivism.' One impor- tant tenet of his theory, and the theories of his predecessors in this tradition, is that with some frequency judges of higher courts are faced with cases for which no single correct answer can be found in the law as it then exists. In such cases, judges may be said to make choices among possible alternatives or to exercise a legislative discretion.'2 Ronald Dworkin, Professor Hart's successor in the Jurisprudence chair at Oxford University, has consistently and provocatively chal- lenged this assumption, an assumption that is shared by American writers in the traditions of legal realism and sociological jurisprud- * Professor of Law, Columbia University School of Law. A.B., Swarthmore College, 1958; B. Phil., Oxford University 1960; LL.B., Columbia University, 1963. The author would like to thank Stephen Munzer, James Nickel, Robert Summers, Lloyd Weinreb, William Young, and participants in a Columbia Law School seminar on Theories of Judicial Decision for their helpful criticisms of drafts of this Article. I See HART, Ttm CONCEPT OF LAW (1961). 2 See id. at 124, 131. But see Hart, Problems of Philosophy of Law, 6 E&;cOycwoiA OF PHI.osoPHY 264, 271 (1967), in which he says: It may well be that terms like 'choice.' 'discretion,' and 'judicial legislation' fail to do justice to the phenomenology of considered decision: its felt involuntary or even inevitable character which often marks the termination of deliberation on conflicting considerations.

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