To What Extent Judges Matter? H.L.A. Hart and the Rule of Adjudication

Authors

  • Giovanni Bisogni Università di Salerno, Dipartimento di Scienze Giuridiche

DOI:

https://doi.org/10.5347/42.2015.81

Keywords:

H.L.A. Hart, rule of adjudication, judicial power, legal interpretation, finality and infallibility of decisions

Abstract

H.L.A. Hart did not pay much attention to the rule of adjudication –and neither did scholars. This paper aims to go beyond what Hart explicitly says about it and to give an account of its role within his concept of law. The perspective will be reconstructive, since the goal is not to develop an original concept of rule of adjudication, inspired on Hart’s theory of law, but rather to shed light on the potential –but also the limits– of this kind of secondary rule. Therefore, the article will first explore the interrelation between the rule of adjudication, on the one hand, and coercion and legal interpretation, on the other: the goal is to outline the theoretical position of judges, which becomes clear when analyzing their (different) tasks in easy and hard cases. Then, this position is put under criticism; by examining, in particular, the well-known problem of the infallibility and finality of judicial decisions, it is shown that Hart considered the judicial application of law in a too declarative way.

Published

2019-05-13

How to Cite

Bisogni, G. (2019). To What Extent Judges Matter? H.L.A. Hart and the Rule of Adjudication. Isonomía - Revista De teoría Y filosofía Del Derecho, (42), 9–45. https://doi.org/10.5347/42.2015.81

Issue

Section

Research Articles