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Legal Principles and Legal Theory[Note 1. I am very grateful to Professor Raz for his ...]
Author(s) -
Muñiz Joaquín R.Toubes
Publication year - 1997
Publication title -
ratio juris
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.344
H-Index - 10
eISSN - 1467-9337
pISSN - 0952-1917
DOI - 10.1111/1467-9337.00061
Subject(s) - adjudication , discretion , law , identification (biology) , epistemology , law and economics , rule of law , political science , sociology , philosophy , botany , biology , politics
Current legal theory is concerned with the presence of principles in law partly because they are at the core of Dworkin's criticisms of Hart's rule of recognition. Hart's theory is threatened by the possibility that the identification of some principles follows an extremely relaxed rule of recognition, or even no rule at all. Unfortunately, there is no conclusive test to ascertain what is the case in actual practice. On the other hand, the evaluative arguments which support Dworkin's proposal of principled adjudication are forceful but not conclusive. Moreover, since ultimate controversy over values is plausible, judicial discretion may sometimes be inevitable.