The Need for Legal Principles

Iowa Law Review

Volumn 82, Issue 3, 1997, Pages 857-865

  Waldron, Jeremy ^a  

^a Columbia University ^*  (United States)

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EID: 0031350470     PISSN: 00210552     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (10)

1. Ronald Dworkin, Taking Rights Seriously 24, 26 (Revised edition, 1978) contrasts the operation of rules and principles in practical reasoning in the following way: "Rules are applicable in an all-or-nothing fashion. If the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision." A principle, by contrast, "states a reason that argues in one direction, but does not necessitate a particular decision. . . . There may be other principles or policies arguing in the other direction. . . . If so, our principle may not prevail, but that does not mean it is not a principle of our legal system, because in the next case, when these contravening considerations are absent, the principle may be decisive."
2. See Dworkin, Taking Rights Seriously, supra note 1, at 340-41, 360 (1986).
3. Ronald Dworkin, Law's Empire 186-216 (1986).
4. See Jeremy Waldron, The Circumstances of Integrity 3 Legal Theory 1 (1997).
5. i.
6. I suspect considerations of the sort that enter into the justification of Maj also enter into a community's sense of what it (the community) is - its sense of its own identity conditions - for the purposes of being an answerer of direct moral questions.
7. I am grateful to Ken Kress for this suggestion.
8. See Dworkin, Taking Rights Seriously, supra note 1, at 24.
9. Ibid., at 26-27: "Principles have a dimension that rules do not - the dimension of weight or importance. When principles intersect . . . , one who must resolve the conflict has to take into account the relative weight of each. This cannot be, of course, an exact measurement, and the judgment that a particular principle . . . is more important than another will often be a controversial one. Nevertheless, it is an integral part of the concept of a principle that it has this dimension, that it makes sense to ask how important or how weighty it is."
10. In both regards, of course, it may be hard to tell a true belief about moral principles from a false one, because both matters are vague: gets at is a vague relation between words and considerations, and moral importance is never something we can quantify precisely.