Review article
The problem of differentiation between «easy cases» and «hard cases»
Žaklina Harašić
Abstract
The author points out that there is not enough reception of foreign authors by the Croatian authors dealing with legal interpretation in the part of their theory of interpretation in which they deal with “easy” and “hard cases”. In her opinion, one of the main reasons for this is that most of the Croatian authors do not deal with interpretation systematically, but within the framework of their textbooks, where little space is left for specific problems of easy cases and hard cases.
In the article, the author starts from concrete decisions of Croatian courts, analysing whether it is possible to qualify them as “easy” or “hard cases”, according to the criteria set out in foreign legal literature (from Hart, through Dworkin, Aarni, Alexy, MacCormick, Peczenik, Wroblewski, Wennstromme, Hoven, Boukeme, Schauer, Marmor, Feteris, Pavčnik).
Only after the analysis of concrete cases, the author comes to her own definition of “easy” and “hard cases”. The former would be those which do not raise major legal and/or factual questions, and therefore do not require more complex interpretation, i.e. qualification, while the others would, due to major legal and/or factual problems, require more complex interpretation, and the concrete decision, by which the case is solved, should be the first of its kind on the same issue which will occur in future cases as well.
Keywords
“easy cases”; “hard cases”; court decision; legal argumentation; interpretation
Hrčak ID:
5131
URI
Publication date:
20.2.2006.
Visits: 2.187 *