Are rules or principles more important to any discussion of law Essay

Are rules or principles more important to any discussion of law - Essay Example However, on a balance, Hart’s theory of law is more important to any discussion of law. The discussion that follows examines both theories and demonstrates why Hart’s theory is most essential to discussions of law. Dworkin takes the position that law functions primarily on principle. By taking this position, he systematically rejects Hart’s rules’ principle. Principles in the context of Dworkin’s theory contemplate norms, policies and principles in general.3 Principles, for the most part will determine how a legal issue will ultimately be decided. While principles do not make law they are determining factors.4 Rejecting Hart’s contention that judges are permitted to use discretion in determining difficult cases, Dworkin maintains that judges are bound to consider standards used by previous judges. There is according to Dworkin an answer for every legal conundrum. The answer is found in society’s morals and values.5 Dworkin divides discretion into two categories. They are weak and hard discretion. With respect to weak discretion Dworkin concedes that judges are permitted to exercise discretion only by reference to his authority. However, Dworkin rejects the notion that judges may exercise discretion in the hard sense. In other words judges are not permitted to exercise discretion outside of his or her authority.6 The general right to exercise discretion implies that the decision maker is not bound by standards and authority.7 Hart takes an entirely different approach. Judges can only legislate to a certain extent.8 As a positivist, Hart advances the theory that law is the entirety of obligations and rules. There are some instances where ambiguous rules are applicable and the courts are forced to decide between two or more applicable rules. In such a case the judge is not bound by any particular authority or standard and has an unfettered discretion.9