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88 Harv. L. Rev. 1057 (1974-1975)
Hard Cases

handle is hein.journals/hlr88 and id is 1077 raw text is: I HARVARD LAW REVIEWI HARD CASES t Ronald Dworkin * Philosophers and legal scholars have long debated the means by which decisions of an independent judiciary can be reconciled with democratic ideals. The problem of justifying judicial decisions is particularly acute in hard cases, those cases in which the result is not clearly dictated by statute or precedent. The positivist theory of adjudication - that judges use their discretion to decide hard cases - fails to resolve this dilemma of judicial decisionmaking. Professor Dworkin has been an effective critic of the positivist position and in this essay he provides an alternative theory of ad- judication that is more consistent with democratic ideals. He first posits a distinction between arguments of principle and arguments of policy and suggests that decisions in hard cases should be and are based on arguments of principle. He then illustrates how this dis- tinction is used in cases involving constitutional provisions, statutes, and common law precedents. T HIS essay is a revised form of an inaugural lecture given at Oxford in June of 1971. I should like to repeat what I said then about my predecessor in the Chair of Jurisprudence. The philosophers of science have developed a theory of the growth of science; it argues that from time to time the achievement of a single man is so powerful and so original as to form a new para- digm, that is, to change a discipline's sense of what its problems are and what counts as success in solving them. Professor H.L.A. Hart's work is a paradigm for jurisprudence, not just in his coun- try and not just in mine, but throughout the world. The province of jurisprudence is now the province he has travelled; it extends from the modal logic of legal concepts to the details of the law of criminal responsibility, and in each corner his is the view that others must take as their point of departure. It is difficult to think of any serious writing in jurisprudence in recent years, certainly in Great Britain and America, that has not either claimed his support or taken him as a principal antagonist. This essay is no exception. His influence has extended, I might add, to form as well as t Copyright @ by Ronald Dworkin. * Professor of Jurisprudence and Fellow of University College, Oxford Uni- versity. B.A., Harvard, 1953; B.A., Oxford, 1955; LL.B., Harvard, '957. 1057 VOLUME 88 APRIL 1975 NUMBER 6

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