New York law. This was not an obvious argument, as we will see later. However,
even if the court would have adopted the obvious rule according to which Elmer
would inherit, the court should have justified the use of this rule.
14.3.2 Hard Cases, Gaps, and Discretion
According to legal positivists such as Hart, the law is a social phenomenon. The law
consists of rules, and these rules exist as a matter of fact in social reality because
they were created by a person who, or an institution that, was empowered to do so.
Moreover, the rules attach legal consequences to cases. These legal
consequences are just as “objective” as the rules themselves. Legal “decision
making” is not really a form of decision making; it is establishing which
consequences the legal rules already have attached to the case at hand.
For example, if somebody negligently causes a car accident, this person must compensate
the damage. This obligation to pay damages does not depend on the judgment of a court. It
comes into existence at the moment the accident took place.
If the case nevertheless comes before a judge, it is in the positivist picture of law the
duty of the judge to establish what was already the case, namely that the tortfeasor has to
compensate the damage. The court’s judgment is not necessary tocreatethe obligation to
pay damages; it is only neededto make enforcement of this obligation possible.Gaps Just like other phenomena in social reality, the law is finite. There are no
more legal rules than were explicitly created by means of legislation or judicial
decision making. As a consequence, there may be cases that lack an applicable legal
rule. The law has no solution for these cases; it then contains agap.
Hard Cases If a judge nevertheless has to take a decision, he must by necessity
create new law. In taking this decision, he may take all kinds of things into account,
such as governmental policies, the demands of morality, or even his personal
preferences. There is one thing on which he cannot base his decision, however,
and that is the law. He cannot do this because for the case at hand there just is no
law. Such cases, where there is no law or where the law is hard to discover, are
called “hard cases.”
Elmer’s case may have been such a hard case. Although New York law contained rules for
standard cases of inheritance and last wills, it did not yet contain a rule that deals with
murderers who threaten to inherit from the person they murdered.Discretion If a legal gap occurs, the legal decision maker must exercise discretion
in the sense of making an unbound decision. Unbound by the law that is, because
the decision maker may feel bound by other standards, such as morality. However,
it is not the law that prescribes him to take morality into account becauseex
hypothesithere is no law available.
14 Philosophy of Law 321