Judicial Discretion and the Problem of Dirty Hands

H.L.A. Hart’s lost and found essay ‘Discretion’ has provided new insight into the issue of how legal systems can cope with indeterminacy in the law. The so-called ‘open texture’ of law calls for the exercise of judicial discretion, which, I argue, renders judges susceptible to the problem of dirty h...

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Bibliographic Details
Published in:Ethical theory and moral practice
Main Author: Tigard, Daniel (Author)
Format: Electronic Article
Language:English
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Published: Springer Science + Business Media B. V [2016]
In: Ethical theory and moral practice
IxTheo Classification:NCA Ethics
VA Philosophy
XA Law
Further subjects:B H.L.A. Hart
B Moral emotions
B Dirty Hands
B Michael Walzer
B Discretion
Online Access: Volltext (Verlag)
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Summary:H.L.A. Hart’s lost and found essay ‘Discretion’ has provided new insight into the issue of how legal systems can cope with indeterminacy in the law. The so-called ‘open texture’ of law calls for the exercise of judicial discretion, which, I argue, renders judges susceptible to the problem of dirty hands. To show this, I frame the problem as being open to an array of appropriate emotional responses, namely, various senses of guilt. With these responses in mind, I revise an example from Michael Walzer’s original analysis in a way that highlights purely personal sacrifices in solutions to dirty hands situations. I then turn to an account of moral emotions in legal decision-making and show how judges—in failing to advance all interests—might be left with a unique sense of guilt. With an application of this account to Hart’s legal positivism, it can be seen that a judge’s hands are often dirtied in resolving borderline cases. If discretion leaves judges in situations where they must do wrong in order to do right, Hart’s endorsement of a closure view of wrongdoing will lead to difficulties in how he can explain the presence of moral remainders in jurisprudence.
ISSN:1572-8447
Contains:Enthalten in: Ethical theory and moral practice
Persistent identifiers:DOI: 10.1007/s10677-015-9608-2