MARK WASHOFSKY

central requirement for law. Without such determinate answers, the ruling laid down in a disputed case would be an act of judicial discretion, a choice based not upon accepted principles of law but upon controversial political values. Such a conception runs counter to commonly-held notions of justice, of rights inherent in the law rather than created by legislation, of the very"Rule of Law" which aspires to a"government of laws and not of men." Yet the logical structures of Blackstone and Langdell had long since collapsed. The intellectual proclivities of a scientific age had put an end to extreme formalism. The terms"mechanical jurisprudence"’” and"oracular judging"”- two ways of expressing the conceit that legal doctrine determines the answer to every legal question- had become labels of opprobrium in the eyes of all.

Jurists therefore turned their attention to the search for remedies, theories by which to limit the scope of judicial discretion and thereby preserve to the greatest extent possible that which is truly"legal" in the law. Positivists , notably H.L.A. Hart , argued that discretion exists only at the boundaries of the law. Like language itself, legal rules possess both a core of settled meaning and an"open texture" at their edges, a range of uncertainty as to how the rule should be applied in the concrete case. Judges legislate in cases which fall on these edges; on matters touching the"core", the correct law is a matter of plain fact.” Many cases are, in fact,"easy cases" which admit of one obviously right answer, this implies that the legal system is plagued by at most a moderate amount of indeterminacy, an amount which does not challenge the system's legitimacy.® Others suggested that, though judges legislate, their special training, the sanctified principles and conventions that shape their role, and the traditions of legal reasoning which lie at the heart of the judicial process all work to constrain judicial choice. Some demanded that judges be held to the standard of"neutral principles," justifications for discretionary decision which they could maintain in all areas of the law.*? Others claimed that the judge's choice of analogies or decision whether to read legal principles narrowly or expansively is determined by moral norms and policies accepted in society.® The most ambitious effort to limit judicial discretion was undertaken by Ronald Dworkin , who argued that no such discretion in fact exists. Judges resolve legal ambiguity in"hard cases" by applying principles inherent to the

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