A NOTE ON PRINCIPLES
| Published date | 01 November 1971 |
| Author | Colin Tapper |
| DOI | http://doi.org/10.1111/j.1468-2230.1971.tb01309.x |
| Date | 01 November 1971 |
A
NOTE
ON
PRINCIPLES
IN
The
Concept
of
Law
Professor Hart propounds the notion of law
as a system of rules. The generality of such an explanation has
been challenged by his successor as Corpus Christi Professor,
Pro-
fessor Dworkin, in his lucid and stimulating article
‘‘
The Model of
Rules.” This short note will comment upon two of the issues
raised by Dworkin, first his distinction between principles and rules,
and secondly his analysis of discretion.
1.
PRINCIPLES
AND
RULES
A
most important feature of Dworkin’s article is the distinction he
draws between two different types of proposition, both
to
be found
in law. On the one hand
are
legal rules. These are now, thanks
to
Hart, better understood than they were. They are nevertheless
formidably varied and complex, more perhaps than Hart in his
successful zeal for simplicity always makes clear. Even
so
the
outline of
a
rule
as
depicted by Dworkin is quite recognisable.
It
is
a normative proposition, making certain legal results depend upon
the establishment of certain factual situations stipulated in the
antecedent part of the rule. Thus the attestation of a
will
by less
than two qualified witnessses leads to the conclusion that the will
is invalid. Dworkin’s contribution is
to
identify an entirely
different type of proposition. This is the principle. Now that he
has pointed them out to us, they can, as he remarks, be seen on all
sides. They include such things
as
the canons of statutory inter-
pretation and the maxims of equity. T,hey differ from rules in their
mode
of
application
to
given situations. They do not necessarily
determine, as rules do, the outcome
of
a dispute in which they are
applied. They merely incline the decision one way
or
the other,
and for this reason have a dimension of weight which rules lack.
Rules apply in an all-or-nothing way; either the decision falls
within the ambit of the antecedent portion of the rule in which case
it must be dealt with as the rule dictates,
or
it
does not, in which
case
it
is unaffected by .the rule.
It
will be clear that,
so
defined,
rules can not conflict with each other, and may, at most, be subject
to
exceptions. Principles may however be applied, in the sense
of
being taken into consideration by the judge, but still not succeed
in swinging the decision in the way they indicate, perhaps because
other and weightier principles point to the opposite conclusion.
1
35
Univ.
of
Chicago
L.R.
14 (1967), sub3equently
republished
in
Essays
in
Legal
Philosophy
ed.
by
Summers
(1968) and
Law. Reason and
Justice
ed.
by
Hughes
(1969).
628
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