How Judges Decide

Abstract

This chapter considers what HLA Hart described as a choice between the two extremes of the realist ‘nightmare’ that judges never decide according to the law and the idealist ‘noble dream’ that judges always decide according to the letter of the law. The chapter explores the reasons for legal uncertainty and examines the constraints that control judicial decision-making. Law is uncertain because it is necessarily general and its application in any particular case depends upon the context. This means that judges often have a choice but that choice is constrained by several factors, especially by the obligation to provide a reasoned judgment.