DWORKIN (ON THE MODEL OF RULES)

HIS REFLECTION ON RULES IS A CORRECTIVE OF HART AND AUSTIN

LINEAR PARADIGM ( RULE OF RECOGNITION-RULE OF CONDUCT-
OBLIGATION/RIGHT) IS TOO SIMPLISTIC AND DOES NOT ACCOUNT FOR
THE ROLE OF PRINCIPLES AND POLICIES
PRINCIPLES AND POLICIES
Are not extra legal considerations
They are the very heart of the administration of law
EXPRESS LEGAL PROVISIONS- back to policy/principles
Judicial determinations/discretion ---- evaluation/alternatives
DISCRETION : Act/liberty to decide according to the principles of JUSTICE and ones
idea of what is right and proper under the circumstances w/o willfulness or favor
Discretion is not a license ( absolute)
Does not make law
Critizeablereview for certiorari ( review of appreciation of courts)e/l
Standards = critizeable
Austin- Hart

making the law in penumbrl phrases

Misreading of discretion
Exercise of discretion must itself appeal to law and to principles

Requirements:
1) A power/right conferred by law
2) Acting officially
3) Under certain circumstances
4) According to the dictatates of their OWN judgement and conscience
5) Uncontrolled by the conscience of others
The fact that the exercise of his DISCRETION is itself an invitation to decide according to
established principles of EQUITY & FAIRNESS
w/o statutory provisions, the courts will sometimes indicate the working of principles by
laying down guidelines for the treatment of certain actions.
 Rules
Binding in all
( either it applies or it does not)
May be valid/ invalid
(no middle ground)
vs principles
Influences a decision but not
determine it
(Relative)
-Maybe relevant/irrelevant to certain
considerations
- have dimension of WEIGHT
AND IMPORTANCE
- (W/I)they are not invalidated, but
are either deem relevant / irrelevant,
controlling or not

- Rules and principles do not work in the same way

- In as much as it has difference in relation does not mean that there is no relevance and
impotance ( principles)
Acceptance of principles:
- Its formative/indispensable role is to correct a substantial manner the positivists account
of Law as maintained by Austin and Hart.
- Both PRINCIPLE AND RULE
*Dynamic counterpoising
*both cannot oppose each other
* not either /or but Both
Equity catch term for PRINCIPLES
Justice invokes Conscience of the court
IMPORTANTLY:
1. Rules alone that not suffice
2. Bond between Justice. Principles of Equity are applied to do Justice ( very essence of law)