The central issue discussed in this article is whether a judge has a legal duty to decide in an specific manner in cases of legal lacunae, to use H. L. A. Hart's expression, or in hard cases, to use Ronald Dworkin's expression. It argues that, though both Hart and Dworkin admit a weak form of judicial discretion, they hold opposite views on the existence of that duty. By adopting a notion of legal completeness, which may disagree with a social rule of recognition, and by including non-conventional principles in the concept of Law, Dworkin offers the justification for that judicial duty. He also offers objective criteria of judicial decision even in hard cases.
Discretion; lacunae and hard cases; rules of recognition and principles