The Judge's Judicial Activity In Hard Cases

Hard cases are a fraction of legal cases,which will be evitable encountered by a judge in judicial practice,and the role and function of a judge in the general may not refuse to make various of cases,of course,including the hard cases.Due to the particularity of hard cases,a judge if stubbornly insists the conceptual jurisprudence and formalist jurisprudence,will be harm to justice and social effect.Therefore,it is necessary to give the judge in the handling of hard cases of judicial activity.Of course, the judge's judicial activity cannot say that it does not exist in easy cases,and it is just a problem of degree relative to hard cases,which just more clearly.The hard cases in judicial practice are slightly different from those in legal theory. The former include the hard cases of fact and the hard cases of law,and the most are in fact,but the latter only analyze the hard cases from the perspective of law,which Hart and Dworkin specially discussed in details.The hard cases of fact need the judge's judicial activity in evidence and fact investigation and determination,and the hard cases of law,including vague rules,conflict rules,legal loophole and legal but not reasonable,also need the judge's judicial activity.The judge's active role can be deeply analyzed from three aspects.First,the referee of hard cases must attach importance to the judge initiative.Second,we must recognize that the subjectivity of the judges has important influence on the hard cases. Third,the legal interpretation and successive making of law in hard cases show the law must exist creativity,so we have to admit the inevitability of the judge's creativity.We advocate the judge's judicial activity,and at the same time,some of the procedure must be passed to restrain it.For example,the judge should firstly apply to formal sources of law rather than informal sources of law;firstly apply to clear rules rather than interpretation of law;and at last apply to successive making of law. Through these,but not limited,which can maximize the value of the judge's judicial activity positively,but cannot cause any judge in hard cases.