Nicola Lacey
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199202775
- eISBN:
- 9780191705953
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199202775.003.0014
- Subject:
- Law, Legal History
This chapter focuses on H. L. A. Hart's views about Ronald Dworkin. In ‘The Nightmare and the Noble Dream’ lecture, published in the Georgia Law Review in 1977, Hart sketched a bold map of the ...
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This chapter focuses on H. L. A. Hart's views about Ronald Dworkin. In ‘The Nightmare and the Noble Dream’ lecture, published in the Georgia Law Review in 1977, Hart sketched a bold map of the American 20th-century jurisprudential scene. American legal theory was, he argued, focussed on adjudication because it was organized around the need to justify the power of judges to strike down democratically validated legislation on constitutional grounds. American legal theorists have reacted to this distinctive constitutional situation, he suggested, in one of two ways: the ‘nightmare’ of total indeterminacy and unconstrained judicial discretion and the ‘noble dream’ of complete legal determinacy. The ‘nightmare’, represented by the Realist jurisprudence of the early part of the 20th century indulges in scepticism about whether judges are bound by law at all in either complex constitutional cases or more generally. By contrast, the American ‘noble dream’ is particularistic and holistic: it finds reasons constraining judges' discretion within the resources of particular legal systems, and it sees law as consisting in more than merely rules, asserting that even when appearances are to the contrary, judges are in fact finding and declaring rather than making law.Less
This chapter focuses on H. L. A. Hart's views about Ronald Dworkin. In ‘The Nightmare and the Noble Dream’ lecture, published in the Georgia Law Review in 1977, Hart sketched a bold map of the American 20th-century jurisprudential scene. American legal theory was, he argued, focussed on adjudication because it was organized around the need to justify the power of judges to strike down democratically validated legislation on constitutional grounds. American legal theorists have reacted to this distinctive constitutional situation, he suggested, in one of two ways: the ‘nightmare’ of total indeterminacy and unconstrained judicial discretion and the ‘noble dream’ of complete legal determinacy. The ‘nightmare’, represented by the Realist jurisprudence of the early part of the 20th century indulges in scepticism about whether judges are bound by law at all in either complex constitutional cases or more generally. By contrast, the American ‘noble dream’ is particularistic and holistic: it finds reasons constraining judges' discretion within the resources of particular legal systems, and it sees law as consisting in more than merely rules, asserting that even when appearances are to the contrary, judges are in fact finding and declaring rather than making law.
H. L. A. Hart
- Published in print:
- 1983
- Published Online:
- March 2012
- ISBN:
- 9780198253884
- eISBN:
- 9780191681431
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198253884.003.0005
- Subject:
- Law, Philosophy of Law
This chapter addresses an American audience on the theme of American jurisprudence. It specifically discusses the Nightmare and the Noble Dream. The Nightmare describes litigants in law cases which ...
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This chapter addresses an American audience on the theme of American jurisprudence. It specifically discusses the Nightmare and the Noble Dream. The Nightmare describes litigants in law cases which consider themselves entitled to be under the existing law in their disputes, not to have new law made for them. Like any other nightmare and any other dream, these two scenarios are illusions, though they have much of value to teach the jurist. The truth, perhaps unexciting, is that sometimes judges do one and sometimes the other. It is not of course a matter of indifference but of very great importance which they do and when and how they do it.Less
This chapter addresses an American audience on the theme of American jurisprudence. It specifically discusses the Nightmare and the Noble Dream. The Nightmare describes litigants in law cases which consider themselves entitled to be under the existing law in their disputes, not to have new law made for them. Like any other nightmare and any other dream, these two scenarios are illusions, though they have much of value to teach the jurist. The truth, perhaps unexciting, is that sometimes judges do one and sometimes the other. It is not of course a matter of indifference but of very great importance which they do and when and how they do it.
