Explain What Is Meant by ‘Mechanical Jurisprudence’, and Discuss Hart’s Objections Towards It.

Topics: Law, Legislature, Common law Pages: 5 (1531 words) Published: April 11, 2013
Explain what is meant by ‘mechanical jurisprudence’, and discuss Hart’s objections towards it. The term mechanical jurisprudence was coined by Roscoe pound in his article in 1908. It is the concept that judges apply law rigidly according to precedent and legislation without thought of consequences. In this it is argued that every eventuality that comes before the law is legislated for in advance, it is just for the judges to apply the relevant law. This concept would insinuate that every case that comes before the courts has been legislated for in advance, leaving virtually no room for judicial discretion. Hart has shed some academic light on the matter. In “The Concept of Law” he explains that there are two handicaps whenever we seek to legislate in advance. Hart writes “It is a feature of the human predicament that we labour under two connected handicaps whenever we seek to regulate, unambiguously and in advance… The first handicap is our relative ignorance of fact: the second is our relative indeterminacy of aim.” Hart argues that it is this relative ignorance of fact is what hinders us from being able to legislate in advance and in doing so hinders the judiciaries ability to apply law mechanically. He goes on to depict a world in which the use of mechanical jurisprudence would be suitable. “If the world in which we live were characterized only by a finite number of features, and those together with all the modes in which they combine where known to us, then provision could be made for every possibility.” Clearly a world such as this is amicable and hart uses this to argue that evidently it is impossible for the law to cover all eventualities when the variants in cases are endless. Therefore the question is, how can mechanical jurisprudence exist when the law is unable to envisage every eventuality? Judges would be left blind as to how to apply rulings which don’t encompass the circumstance. Hart’s second handicap of our relative indeterminacy of aim is further linked with this inability of the law to legislate in advance for every eventuality and leads on to the concept of ‘open texture’. In which the legislature use general classifying terms in rules, which leaves a suitable amount of room for the judiciary to act upon and apply to each specific case. This indeterminacy and generalisation in the law means that the legislature leaves gaps in the law to be filled in by precedent, in cases which could never be foreseen. This invariably leads to the question of whether judges are in fact legislators. Of course this question has been uniformly denied by the judiciary ever since it has been posed, yet the question remains. Hart writes “The open texture of laws means that there are, indeed, areas of conduct where much must be left to be developed by courts or officials striking balance.” It seems arguable that human’s inability to predict the future and therefore legislate for it, has resulted in a situation where it is left to the judiciary to ‘fill in the gaps,’ and it is through this vehicle of ‘open texture’ that they are able to do so. Hart goes on to write “In a system where stare decisis is firmly acknowledged, this function of courts is very like the exercise of delegated rule-making powers by an administrative body.” Raising the question of whether the judiciary is in fact an institution of unelected legislators? The judiciary will argue that they are merely seeking the meaning of already existing law through interpretation. Yet on many occasions it seems particularly difficult to agree with this statement. For example in the cases of; R v Brown, R v Wilson and R v Emmett. All three cases appear to take different stances on the law with little view to passed precedent, and have arguably been decisions based on the beliefs of the judges rather than judgements based on interpretation of law. In particular in relation to the R v Brown case where the homosexual sadomasochistic practices were clearly not to the liking...


Bibliography: "Mechanical Jurisprudence" (1908), 8 Columbia Law Review 605
“The Concept of Law” H.L.A Hart, Second edition 1994
[ 1 ]. "Mechanical Jurisprudence" (1908), 8 Columbia Law Review 605
[ 2 ]
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