RT Article
T1 Judicial Discretion and the Problem of Dirty Hands
JF Ethical theory and moral practice
VO 19
IS 1
SP 177
OP 192
A1 Tigard, Daniel
LA English
PB Springer Science + Business Media B. V
YR 2016
UL https://www.ixtheo.de/Record/1565731425
AB 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.
K1 Dirty Hands
K1 Discretion
K1 H.L.A. Hart
K1 Michael Walzer
K1 Moral emotions
DO 10.1007/s10677-015-9608-2