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Legal cases can be termed hard cases if they raise issues

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Legal cases can be termed hard cases if they raise issues [#permalink] New post 27 Jan 2013, 16:58
Legal cases can be termed “hard” cases if they raise issues that are highly controversial, issues about which people with legal training disagree. The ongoing debate over the completeness of the law usually concerns the extent to which such hard cases are legally determinate, or decidable according to existing law.
H. L. A. Hart’s The Concept of Law is still the clearest and most persuasive statement of both the standard theory of hard cases and the standard theory of law on which it rests. For Hart, the law consists of legal rules formulated in general terms; these terms he calls “open textured,” which means that they contain a “core” of settled meaning and a “penumbra” or “periphery” where their meaning is not determinate. For example, suppose an ordinance prohibits the use of vehicles in a park.

“Vehicle” has a core of meaning which includes cars and motorcycles. But, Hart claims, other vehicles, such as bicycles, fall within the peripheral meaning of “vehicle,” so that the law does not establish whether they are prohibited. There will always be cases not covered by the core meaning of legal terms within existing laws; Hart considers these cases to be legally indeterminate. Since courts cannot decide such cases on legal grounds, they must consider nonlegal (for example, moral and political) grounds, and thereby exercise judicial discretion to make, rather than apply, law.

In Ronald Dworkin’s view the law is richer than Hart would grant; he denies that the law consists solely of explicit rules. The law also includes principles that do not depend for their legal status on any prior official recognition or enactment. Dworkin claims that many cases illustrate the existence of legal principles that are different from legal rules and that Hart’s “model of rules” cannot accommodate. For Dworkin, legal rules apply in an all-or-nothing fashion, whereas legal principles do not: they provide the rationale for applying legal rules. Thus, because Dworkin thinks there is law in addition to legal rules, he thinks that legal indeterminacy and the need for judicial discretion do not follow from the existence of open texture in legal rules.

It would be a mistake, though, to dispute Hart’s theory of hard cases on this basis alone. If Hart’s claim about the “open texture” of general terms is true, then we should expect to find legal indeterminacies even if the law consists of principles in addition to rules. Legal principles, as well as legal rules, contain general terms that have open texture. And it would be absurd to suppose that wherever the meaning of a legal rule is unclear, there is a legal principle with a clear meaning.Most interesting and controversial cases will occur in the penumbra of both rules and principles.
1. Which one of the following best expresses the main idea of the passage?
(A) The law will never be complete because new situations will always arise which will require new laws to resolve them.
(B) The most difficult legal cases are those concerning controversial issues about which trained legal minds have differing opinions.
(C) The concept of legal principles does not diminish the usefulness of the concept of the open texture of general terms in deciding whether hard cases are legally determinate.
(D) The concept of legal principles is a deleterious addition to the theory of law since any flaws exhibited by legal rules could also be shared by legal principles.
(E) The inherent inconsistency of terms used in laws provides a continuing opportunity for judges to exercise their discretion to correct defects and gaps in the law.
[Reveal] Spoiler:
C


2. According to the passage, the term “legal principles” as used by Dworkin refers to
(A) a comprehensive code of ethics that governs the behavior of professionals in the legal system
(B) explicit analyses of the terms used in legal rules, indicating what meanings the terms do and do not cover
(C) legal doctrines that underlie and guide the use of accepted legal rules
(D) legal rules that have not yet passed through the entire legislative procedure necessary for them to become law
(E) the body of legal decisions regarding cases that required judicial discretion for their resolution
[Reveal] Spoiler:
C


3. Which one of the following expresses a view that the author of the passage would most probably hold concerning legal principles and legal rules?
(A) Legal rules are applied more often than legal principles when a case involves issues about which legal professionals disagree.
(B) Both legal rules and legal principles areofficially recognized as valid parts of the law.
(C) Hart’s “model of rules” has been superseded by a “model of principles” that sheds light on legal determinacy.
(D) Legal principles are just as likely as legal rules to have terms that have both core and peripheral meanings.
(E) Legal principles eliminate the need for judicial discretion in resolving the problemsgenerated by the open texture of legal rules.
[Reveal] Spoiler:
D


4. It can be inferred that the author of the passage regards Hart’s theory of hard cases and the theory of standard law as
(A) exhaustive
(B) worthy of respect
(C) interesting but impractical
(D) plausible but unwieldy
(E) hopelessly outmoded
[Reveal] Spoiler:
B


5. In the passage, the author is primarily concerned with
(A) outlining the problems that might be faced by a legislature attempting to create a complete body of law that would prevent judges from making rather than applying the law
(B) justifying the idea that “hard” cases will always exist in the practice of law, no matter what laws are written or how they are applied
(C) presenting evidence to support Dworkin’s idea that legal rules apply in an all-or-nothing fashion, whereas legal principles apply in more sophisticated ways
(D) critiquing the concept of the open texture of legal terms as a conceptual flaw in Hart’s otherwise well-regarded book
(E) demonstrating that Dworkin’s concept of legal principles does not form the basis for a successful attack on Hart’
[Reveal] Spoiler:
E


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Re: Legal cases can be termed “hard” cases [#permalink] New post 28 Jan 2013, 14:18
IMO

1>A
2>E
3>D
4>D
5>B
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Re: Legal cases can be termed “hard” cases [#permalink] New post 05 Feb 2013, 04:29
My Pick :-

1. B " seems to be the best out of the lot"
2. A " From the passage"
3. D " From the passage"
4. B " I did not go with D coz i think it is plausible but not unwieldly"
5. B " Though m not sure if its a justification"

Please provide OA !!!
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Re: Legal cases can be termed “hard” cases [#permalink] New post 05 Feb 2013, 20:38
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1. (C)
(A) begs the question of the topic and scope—the determinacy of “hard” cases—and comes down squarely on the side of the need for resolving all cases through law alone, something the author rejects. (B) is the choice for those who grab ¶1 and not much else. The definition of “hard” cases is a jumping-off point for the real issue of how such cases are to be decided, and (B) mentions none of that. (D)'s negative judgment of Dworkin's concept of legal principles is not supported by the author—indeed, the author embraces the concept in ¶4. (E) is a pretty radical distortion of this passage's content and tone. Hart's definition of legal terminology as “open textured” implies (quite sensibly) that language has some inherent flexibility of meaning—even legal language—and that judges need to exercise some judgment as a result; but all of that is a far cry from accusations of “inherent inconsistency” and “defects and gaps in the law.”

2. (C)
(A) sounds like a plausible definition of the term “legal principles” on its face, but it has nothing to do with Dworkin or, indeed, with anything else in the passage.
(B) Legal principles, as defined by Dworkin, don’t explain legal rules: They coexist with them, within the body of established law (see lines 35-37). (D) Dworkin believes that law exists outside of legal rules. (E) Dworkin seems to be opposed to the notion that some cases need judicial discretion, so he would not coin the term “legal principles” to mean cases that required same.

3. (D)
(A) The author never posits which—rules or principles—is appealed to more often in hard cases. (B) “Official recognition,” whatever that means, has nothing to do with this “think piece” on legal determinacy, the author's effort to work out a theory of one part of the law. (C) Far from arguing that rules have been superseded by principles, the author believes that both exist in the law. (E) No, the author hints strongly that those cases “in the penumbra of both rules and principles” (lines 56-57) will, in fact, require judges' discretion for their decidability.

4. (B)
(A) “Clear” and “persuasive” don't imply that a work or theory covers a topic “exhaustively.” No evidence for this one. (C) and (D) are each half-right, half-wrong. Interesting, sure; plausible, o.k.; but “impractical” or “unwieldy”? It's unlikely that a theoretical think piece like this one would traffic much in practicality anyway; but if anything, the author does seem to see practical and workable (as opposed to “unwieldy”) value in Hart's concept (see ¶4). (E) Hopelessly wrong. No matter how far back in history Hart's work dates—and of course we get no info to that effect—the author seems to find it relevant and well worth studying.

5. (E)
(A) Nonsense. The in-practice role of the legislative branch is about as far removed from this passage's concerns as can be. (B) is an issue that was raised and disposed of in ¶1. The topic may be “hard” cases, but the scope moves away from their definition to their determinacy, something that (B) ignores but (E) exploits. In terms of the author's main purpose, Dworkin certainly doesn't deserve the pride of place that (C) assigns him. (D) If anyone is in the “critiquing Hart” business, it's Dworkin and not our author, who is trying to synthesize the views of the two thinkers.
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Re: Legal cases can be termed “hard” cases [#permalink] New post 14 Feb 2013, 21:32
Legendaddy wrote:
1. (C)
(A) begs the question of the topic and scope—the determinacy of “hard” cases—and comes down squarely on the side of the need for resolving all cases through law alone, something the author rejects. (B) is the choice for those who grab ¶1 and not much else. The definition of “hard” cases is a jumping-off point for the real issue of how such cases are to be decided, and (B) mentions none of that. (D)'s negative judgment of Dworkin's concept of legal principles is not supported by the author—indeed, the author embraces the concept in ¶4. (E) is a pretty radical distortion of this passage's content and tone. Hart's definition of legal terminology as “open textured” implies (quite sensibly) that language has some inherent flexibility of meaning—even legal language—and that judges need to exercise some judgment as a result; but all of that is a far cry from accusations of “inherent inconsistency” and “defects and gaps in the law.”

2. (C)
(A) sounds like a plausible definition of the term “legal principles” on its face, but it has nothing to do with Dworkin or, indeed, with anything else in the passage.
(B) Legal principles, as defined by Dworkin, don’t explain legal rules: They coexist with them, within the body of established law (see lines 35-37). (D) Dworkin believes that law exists outside of legal rules. (E) Dworkin seems to be opposed to the notion that some cases need judicial discretion, so he would not coin the term “legal principles” to mean cases that required same.

3. (D)
(A) The author never posits which—rules or principles—is appealed to more often in hard cases. (B) “Official recognition,” whatever that means, has nothing to do with this “think piece” on legal determinacy, the author's effort to work out a theory of one part of the law. (C) Far from arguing that rules have been superseded by principles, the author believes that both exist in the law. (E) No, the author hints strongly that those cases “in the penumbra of both rules and principles” (lines 56-57) will, in fact, require judges' discretion for their decidability.

4. (B)
(A) “Clear” and “persuasive” don't imply that a work or theory covers a topic “exhaustively.” No evidence for this one. (C) and (D) are each half-right, half-wrong. Interesting, sure; plausible, o.k.; but “impractical” or “unwieldy”? It's unlikely that a theoretical think piece like this one would traffic much in practicality anyway; but if anything, the author does seem to see practical and workable (as opposed to “unwieldy”) value in Hart's concept (see ¶4). (E) Hopelessly wrong. No matter how far back in history Hart's work dates—and of course we get no info to that effect—the author seems to find it relevant and well worth studying.

5. (E)
(A) Nonsense. The in-practice role of the legislative branch is about as far removed from this passage's concerns as can be. (B) is an issue that was raised and disposed of in ¶1. The topic may be “hard” cases, but the scope moves away from their definition to their determinacy, something that (B) ignores but (E) exploits. In terms of the author's main purpose, Dworkin certainly doesn't deserve the pride of place that (C) assigns him. (D) If anyone is in the “critiquing Hart” business, it's Dworkin and not our author, who is trying to synthesize the views of the two thinkers.



Sweet 3/5. My gut told me pick B for number 4, but I chose C instead.

CCDCA

Great practice passage. Do you have any others that deal with the humanities?
Re: Legal cases can be termed “hard” cases   [#permalink] 14 Feb 2013, 21:32
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Legal cases can be termed hard cases if they raise issues

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