Hart’s Formalist Critic and the Judicial Interpretation of Law

Abstract

In the 19th century developed formalism, a theory of legal reasoning and interpretation devoted to the claim that judges discover and apply law without ever creating it. It was believed that the legislator could foresee and regulate everything, and the judge’s task consisted in the mechanical application of such a ready right to a specific legal situation. However, modern legal doctrine recognizes judges a certain freedom when making decisions, the possibility to adapt the law to life and judge based on their free judicial conviction.

An almost unsolvable problem is the question of how to give the judge the necessary freedom in decision-making, and on the other hand prevent possible abuses, as well as conscious and unconscious mistakes, when using broad discretionary powers.

Hart’s solution to the problem represents a middle way between these two extremes, which is why special attention is paid to it. Also, the author will try to prove that formalism is a wrong theory of legal interpretation and that the highest judicial instances actually create law through interpretation.