Right Answers and Hard Cases

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In legal reasoning, the idea that a right answer can be found in hard cases is pure fiction. Discuss. Introduction It is often said that ‘hard cases make bad law’, but it is submitted by way of an opening observation that categorical statements regarding the law and its modus operandi are misleading at best and usually unreliable at the margins. The statement under review in the title to this work, in declaring that it is pure fiction that right answers can be found in hard cases, must be treated with suspicion from the outset. The phrase grates uncomfortably with this commentator. There are remarkably few concrete rules in law, and given that our legal system is a vast and organic entity in a constant state of flux and development this can come as no real surprise.[1] In law there are exceptions to almost every conceivable rule, and normally there are several tiers of exceptions and jurisprudential tributaries flowing from that primary caveat. One sure way to provoke a combative response from a lawyer is to declare that something in law is either black or white. Almost nothing is, and for good reason. The infinite shades of grey that colour our legal system sustain the flexibility that allows it to cater for the uncountable scenarios in which it may be called upon to intervene. This commentator’s initial assertion is therefore that the right answers can sometimes be ascertained from hard cases, to say that such is pure fiction is overstating the point. The Wizard of Oz is pure fiction, but at law almost anything is possible, as countless surprised litigants may testify. Legal Reasoning: An Elusive Art Legal reasoning is a subjective process steered by the objective paradigms and general principles established by the legal system in question. It is an art, more than a science. There is no such thing as two plus two equals four and, as stated, few universal certainties.[2] As such it is very difficult to define exactly what occurs in the mind of a judge, advocate or jury as they dwell on the issues confronting them in any particular case.[3] Moreover there is nothing to say that a particular methodology is endorsed and applied by a particular court or a specific individual on a consistent basis: legal reasoning is a nebulous and elusive process subject, on each occasion that it is invoked to a fluctuating constellation of variable factors. When asked to define legal reasoning most lawyers will respond with a long pause, and if an answer is volunteered it is unlikely it will correspond to other versions offered. Typically, for every line taken by a particular judge from a general principle or issue to a verdict a different judge or advocate who started from the same conceptual point of departure will take a slightly or sometimes wildly different route which may or may not result in arrival at the same place in law. Dworkin confirms this specific analysis in his writing,[4] although,

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