The Study On Judicial Discretion Theory Of Hart

In his classical The Concept of Law and some relative works,H.L.A.Hart used the philosophical method of common linguistic analysis,established the rule system which considers law is self-sufficiency by criticizing the command mode of law of John ? Austin on the point of descriptive jurisprudence. In his rules theory,he carried descriptive analysis on the habits and rules,put the internal point of view into the rules as a perspective. He established law system consisted of primitive rules and derivative rules,supplied law system with effectiveness accordance by the recognition rule of derivative rules. The open structure of rules as a result of language's intrinsic characters results in the uncertainty of reorganization rule,so judges need to adjudge difficult cases in the meaning of legislation when the law is uncertain. Hart stressed that the exercise of discretionary power of judges is not arbitrary. A judge must have common reasons to justify his decision, and should make his decision according to his own beliefs and values like a sincere legislator. Hart's strong challenger Dworkin started his criticism of Hart's theory form the discretion issues; he criticized the reorganization rule which is the core conception of Hart's rule system by introducing legal principles. Dworkin wanted to disaffirm Hart's demonstration that judges have discretionary power in the open structure of law system and there is only a right answer in a case. Hart made powerful response to Dworkin's criticism in postscript and improved his discretion theory. Hart's discretion theory has developmental meaning to research methods of law theory, juridical practice and legislators; it can be expected to contribute to our Legal Construction.