Hart suggests that Holmes is in between these two theories Holmes is in the middle Noble Dream Faults the Nightmare for not perceiving the relatively large settled core Dworkin belongs here: there is a right answer, judges never make law, finding law that is already there (law is not politics) Two aspects to legal interpretation Particular view - is there a particular law that answers the question? If makes the mistake of simply asserting that judge gets to make not…Nightmare up the law (legislate) Holistic view - Noble Dream would move to this next step of interpretation - is there a broad principle or principles of law that are able to guide the judge? Questions of law always exist against a background of law established law…although does not answer this particular question, the holistic approach would be a guide to the right answer The well established rules act as a restraint on ability to simply judge on judge’s political ideology Other theorists Dworkin is described as a noble dreamer - but he is an activist Fit and moral justification are theories of INTERPRETATION - not legislation Posner aligns more with the Nightmare - but he is a proponent of judicial restraint - judges really make he feels they should recognize “Interpretation” law…but this and restrain allow legislature to make the call themselves → Pound and Llewellyn are identified more w/nightmare too though they were → even legal realists of not always one right answer but there are answers that fit “Grand Style Judging” → and answers that fit (some answers are more right than others) don’t Who does Hart think is right? *Hart say but thinks the truth is somewhere in the middle doesn’t There is settled core in the nightmare and some open texture in the noble dream § 13 - Sanford Levinson On the Adultery Clause of the 10 Commandments Hypothetical $10,000 prize for a person to not violate any of the 10 Commandments from age 18-35 A - Husband cheats on his wife with unmarried women; adultery only applies to married women B - Wife cheats of husband, but with the - no promise husband’s consent breaking C - Has to wives and only had sexual relations with both women D - Lusts after women who are not his wife E - Never lusted after another women since be married, but been lustful he’s he’s towards his wife the Trustee who has to decide who wins You’re
Hart suggests that Holmes is in between these two theories Holmes is in the middle Noble Dream Faults the Nightmare for not perceiving the relatively large settled core Dworkin belongs here: there is a right answer, judges never make law, finding law that is already there (law is not politics) Two aspects to legal interpretation Particular view - is there a particular law that answers the question? If not…Nightmare makes the mistake of simply asserting that judge gets to make up the law (legislate) Holistic view - Noble Dream would move to this next step of interpretation - is there a broad principle or principles of law that are able to guide the judge? Questions of law always exist against a background of established law…although law does not answer this particular question, the holistic approach would be a guide to the right answer The well established rules act as a restraint on judge’s ability to simply judge on political ideology Other theorists Dworkin is described as a noble dreamer - but he is an activist Fit and moral justification are theories of INTERPRETATION - not legislation Posner aligns more with the Nightmare - but he is a proponent of judicial restraint “Interpretation” - judges really make law…but he feels they should recognize this and restrain themselves → allow legislature to make the call Pound and Llewellyn are identified more w/nightmare too → even though they were legal realists “Grand Style of Judging” → not always one right answer but there are answers that fit and answers that don’t fit (some answers are more right than others) Who does Hart think is right? *Hart doesn’t say but thinks the truth is somewhere in the middle There is settled core in the nightmare and some open texture in the noble dream § 13 - Sanford Levinson On the Adultery Clause of the 10 Commandments Hypothetical $10,000 prize for a person to not violate any of the 10 Commandments from age 18-35 A - Husband cheats on his wife with unmarried women; adultery only applies to married women B - Wife cheats of husband, but with the husband’s consent - no promise breaking C - Has to wives and only had sexual relations with both women D - Lusts after women who are not his wife E - Never lusted after another women since he’s be married, but he’s been lustful towards his wife You’re the Trustee who has to decide who wins