The key thesis of the paper is Hart’s decentration of logical instruments in judicial decision (as a specie of a rulefollowing), understood as being subjected to an art of interpretation and qualification of particulars as well as to a reaching social goals and consequences.
Ph.D. in Law, professor of Theory and History of State and Law sub-faculty of the Samara Law Institute of the Federal service of execution of punishments of the Russian Federation
In post-soviet jurisprudence and legal philosophy rationality traditionally associated with logic, understood as a universal way of explanation. This view, however, does not take into account important developments in the XXth century (Western) philosophy, including analytic linguistic philosophy of «later» Ludwig Wittgenstein, John Langshaw Austin et al., that show limitations of logical instruments. The same applies to a doctrine of a famous Oxford philosopher and jurist, Herbert Hart (1907-1992) — one of key theories for Western (Anglo-American) jurisprudence of the second half of the XXth century. Applying ideas of analytic philosophy to law, Hart contributes to redefining boundaries and relationships of logic and rationality in explaining judicial decision which seems meaningful to a relevant enrichment of contemporary post-soviet philosophical-legal thought. Thus a discussion of Hart's doctrine composes a subject of this paper.
Hart here offers a middle position. For him (like for Wittgenstein and Austin) a meaning of a word is a way of its use. The stability of meanings is established by a typicity of such use, creating uncertainty in nonstandard, borderline cases, when language «breaks down» and «we don't know what to say» (as in situations of a goldfinch, quoting Virginia Woolf, by Austin or a vanishing chair by Wittgenstein). Hence Hart distinguishes clear and borderline cases of applying a term and so a relevant rule. Language and law predetermine a legal outcome in clear cases and fail to do that in borderline ones, making necessary a judicial discretion as a choice between alternatives. Thus, in Hart's classic example, a prohibition of a vehicle in the park is clear in relation to a car, but is vague in respect to a bike, etc. The answer here is not absolutely settled or completely open, it is underdetermined.
Accordingly Hart conceives a judicial decision largely along a Wittgenstein's model of rule-following. First, an application of a rule is established not by its wording and abstract calculus, but by a socio-normative context of its use: a rule is a socially accepted and practiced standard of conduct. Second, even in borderline cases a judicial decision composes a rule-following, though requiring additional efforts or operations: interpretation, reasoning and so on. (Hart also seeks to explicate criteria for rule-following or, more precisely, grounds for a proper ascription of following legal norms to a judge: a presence of an «internal» normative attitude, justification or criticism of someone's actions through an appeal to rules, etc. However, these are seemed to be insufficient both as counterarguments against realism and as a general explanation of judicial conduct along the model of following (legal) rules).
ing various ideological patterns. At the same time Hart's doctrine contains a tension between the ideas of judicial decision as following a rule (in Wittgenstein's spirit, describing a language practice) and as an implementation of ethical standards or social goals even against existing regulations (like in jurisprudential theories of natural law or legal realism). Here Hart, apparently, also offers a moderate position. Within his project of analytical jurisprudence he describes a decision primarily as a rule-following, bringing other issues beyond his discussion. So a «core» of a linguistic meaning (as, too, laws of logic) rather constitute a limitation for a judge's choice, though not being an insurmountable obstacle for a possible deviation from a rule (or rather for following one rule contrary to another) — the main thing here is that such deviation should be a deliberate and rational choice. Hart also concedes various understanding of what constitutes following a rule in different social contexts as well as different versions of decisions and justifications in an uncertainty situation.