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Role Of Principles In The Law

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TOM HORDER Ð'- 300071807




Word Count: 2960 excluding footnotes





[1] In discussing what role principles play in the law, we are essentially conducting an investigation into the more fundamental question of what is law itself. We are asked to decide which is the most accurate view of the process of adjudication, between the positivist view that dismisses, to varying degrees, principles as a component of law, and the Dworkinian view that principles do exist within the law. This question forces us to examine the dichotomy that exists between principles and rules, and the consequences of placing emphasis on either. It is my submission that principles are not only a necessary component of law, but also equally as important as rules, as both are necessary for the effective functioning of law in society. In order to gain a clear understanding of the role principles play, it is necessary first to define the concept of principles and other contrasting directives. Then, discussion of the major contemporary jurisprudential viewpoints will be followed by an examination of the relative importance of rules and principles in terms of the effective operation of the legal system. Following this will be discussion of the Public International Law paradigm to illustrate the applied relevance of the role of principles.

[2] Due to the fact that principles are intimately related to morality, this examination inevitably touches on a more fundamental question of whether morality is a criterion of legality. However, although this issue will be discussed this where overlap is unavoidable, for the purposes of this essay, an in depth investigation would not be pertinent.

What are principles?

[3] Because of the inherent ambiguity of language it is necessary to define exactly what we mean by "principles". There is a common dichotomy that exists between principles and rules, however they are not the only important strata of specificity as it is also useful to examine what is meant by a "rule", a "standard" or a "policy". Rules are the most precise form of directive, requiring perhaps only the determination of whether a particular event has occurred or not. Therefore, application can be determined without great deliberation as courts have very little room for discretion. An example is a directive that states that drivers must not exceed 50 kph. As to principles, it is not disputed that they are a more general proposition, embodying an objective (or policy ) and asserting that this objective ought to be achieved giving some reason as to why. An example is pacta sunt servanda, which translates to "agreements are to be observed".

[4] However, in distinguishing rules and principles more deeply, there are a number of contentious issues. Dworkin and Dias agree that, rather than concluding a matter, principles exert pressure in the direction which rules ought to develop. Consistently, Dworkin suggests that principles have the "attribute of weight [of importance]" in that when two conflicting principles intersect, the judge must take the relative weight of each into account in deciding which will prevail in the particular circumstance. If there are conflicting rules on a matter, one cannot be valid so it must be decided which is applicable, in terms of the most recent enactment, or which holds the support of the higher authority or most important principles. Dworkin also believes rules to be both applicable in an "all-or-nothing" fashion and conclusive. In opposition, Hart suggests that rules are liable to be brought into conflict with principles which may outweigh them, as occurred in Riggs v Palmer (Riggs). Therefore, Hart concludes that a rule can be non-conclusive and that the difference between rules and principles is merely a matter of degree. By this, he means that, on a continuum, rules might ordinarily lie toward determining the case, but sometimes principles and rules may sit around the same place, as in Riggs where the principle was apparently conclusive, the rule not so. However, perhaps Hart misinterprets Dworkin in this sense, as Dworkin does not suggest that, if a rule is applicable, it always determines the outcome absolutely, rather he creates a contrast in that, of itself, a rule cannot act as an object of weight pushing for a particular outcome like a principle can.

[5] Despite all of these identified differences, it can often be difficult to classify a directive as a rule or principle. Take the example used by Dworkin, the First Amendment of the United States Constitution that grants freedom of speech to all members of society. Upon considering this directive one must ask whether it is a rule whereby any law abridging freedom of speech is automatically unconstitutional, or a principle whereby a law would be unconstitutional unless the context presented a weightier principle to permit the abridgment. This example illustrates the practical importance of classification.

[6] Other than rules and principles there are other directives that require explanation. Like principle, "policy" is a more abstract concept than other classes of directive. A policy is a statement of economic, social or political objective , such as full employment, and it tends to be the domain of the legislature and not the courts. "Standards" are a more ambiguous concept as the term has been defined differently by various theorists. The process jurists suggest a standard to be a directive that sits along side principles requiring a qualitative evaluation . However, Dworkin uses the term in an overarching manner so as to encompass rules, principles and policies. Most controversially Hart, in an attempt to evade the criticism of Dworkin that he had not accounted for the presence of principles in the law, suggested that in talking about "varying legal standards", he was actually dealing with principles in the Dworkin sense. This equation is not altogether convincing as standards, such as a prohibition on driving at an "unreasonable" speed, seem more like the manifestation of a principle rather than a principle itself. Regardless of the actual definition ascribed to any off these directives, it is important



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