Does the common law judge have the same discretion as a legislator in making law in “gaps”?

Naveen k. Jain, 3rd year student of Jindal Global law School

Hart talks about his theory of secondary rule. He says that the secondary rule is one which authorises the primary rule. Secondary rules neither prescribe any punishment, nor the violation of secondary rules generally lead to any punishment.

He divided his secondary rules into three sub categories i.e. rule of recognition, theory of adjudication, and rule of change. He says that in a legal system, there will always be some gaps in between the rules and to fill these gaps and to create better system, judges can interpret the existing laws, in such a manner, that the gaps in between rules can be filled.

In rule of adjudication judges can interpret the law; they can make the principles which are not in existence to suit the needed-out come for society.

Discretionary powers v/s Power based on existing principles and Policy

On the other side, Ronald Dworkin opposes Hart and says that in common law system, judges can only interpret the law but they cannot become the ultimate source of law making process. Judges will have to abide by the principles which are already present in system. According to him, Principles are not made by the judges; it has to come from the legislature. Judges just interpret law on the basis of existing legal principles.

Dworkin also demanded that judges respect the idea of the democratic mandate so far as policy-making is concerned, and leave matters of policy wherever possible to the elected legislature.

Hart propounded the “open texture rule” under which he says that the judges have discretionary powers to interpret the laws as they wish. Also, Hart strongly insist that judiciary should have discretionary powers as, judges may also face a situation where there is no standard principle and then they would need to use their discretionary powers to suit the need of contemporary word.

The law is reduced to a kind of a lottery

Dworkin opposes Hart and says that if judges are given discretionary powers in common law system to interpret the law as the legislators, the law then be reduced to a kind of lottery. Judges will then be in a situation to decide and impose the punishment as per their own will.

Policy and Principle v/s Discretion

Dworkin also demanded that judges respect the idea of the democratic mandate so far as policy-making is concerned, and leave matters of policy wherever possible to the elected legislature. He thus drew a distinction between principles and policies, though conceding that most principles could be framed as policies and most policies as principles by anyone so inclined.

A policy, he said, is a standard setting out a goal to be achieved, usually in terms of the economic, social or political well-being of the community. A principle, on the other hand, sets individual rights above communal well-being and imposes a standard of justice or fairness or some other moral dimension.

Dworkin argues that the judges tend to agree with this view at least in what they say. Questions of social policy should better be left to Parliament, and it is not for judges to interfere in such matters.

Applicability of both the theories

In common law countries both the theories have been seen to have found their place in applicability. If Hart’s theory of adjudication is considered where judges have full discretion and they can make policy and principles, we will have to look at the Vishaka v. State of Rajasthan, in which Supreme Court had stepped into the shoes of legislatures and released some guidelines for the safeguard of women at workplace. Though Supreme Court held that such guidelines will remain in force until legislature passes a suitable law, but it shows that, when there is no standard policy for certain thing, judiciary may take the driving seat to interpret the law and make policy and principles.

It is important to understand that judiciary is one of the pillars of any system in common law countries. It is always sought from the main functioning institutions to do not intervene or interfere in the functioning of another institution such as: – legislature.  But still, there are certain things in which judges can take their discretionary decisions. Tort law is basically a judge made law and it is completely interpreted by the judges. The principle of neighbourhood is also evolved through judicial decision in Ryland v Fletcher case. But there is also a doctrine of precedents which says that judges are themselves bound by their own previous decision. This ultimately suggests that even though the judges enjoy certain type of discretionary freedom, they themselves will have to abide by their own precedents.