critique of Hart's conception of the enterprise of jurisprudence
Rules and
Principles
Hart: law is found by
reference to the basic
rule of recognition
It recognises certain
sources as "sources of law"
application of rules can be
unclear because of the "open
texture" of language
In these cases courts must
exercise: discretion, policy
consideration and fairness
Dworkin: the law does not
consist only of rules but also
of principles
Riggs v Palmer - no man
should not profit from
his own wrong
Annotations:
The rules of testamentary succession were binding on the court by virtue of certain unpinning principles, such as the principle that "the enactments of the legislature should be enforced according to their clear wording"
Allow the principle about enforcing principles over the principle of "no profit" would be a serious infringement of values[
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rules vs. principles
1. Rules apply in an "all or nothing"
manner whilst principles are the
reasons the decision
Annotations:
If the rule applies, and it is a valid one, the the decision should be made in accordance with the rule WHEREAS as there can be many principles they cannot give a conclusive reason
2. Valid rules cannot conflict whereas
principles can and still be legally binding
(valid)
lex posterior derogat priori
3. Principles hold a dimension of weight
whereas rules are one-dimensional
Annotations:
As rules are either valid or invalid, they have no issue of "outwieghting"
Principles and Positivism
Legal principles cannot be
identified by Hart's rule of
recognition
Annotations:
A principle may already exist even though no court has ever formulated it or laid it down as a principle
They are part of the law but can
be identified by some version of
the rule of recognition
this does not refute legal positivism or
Hart's theory in general
if principles are not part of a legal
system this means that judges are
amending the law which means that
they are not bound by it making rules
redundant
legal positivism becomes a version of rule-scepticism
Dworkin argues that if principles
are not part of law, then rules are
not binding
They are not part of the law but an
extralegal moral consideration that
judges may take in their discretion
Incorrect as even by enforcing
both plaintiff and defendant's
rights are based on principles