Blackwell Reference Online

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P hilosophy of law Cases where established rules or laws cannot provide conclusive answers and about which informed people can reasonably disagree. If we view law as a body of rules, hard cases constitute indeterminacy in law or legal gaps. Dworkin therefore claims that we must understand law as comprising more than rules. To solve hard cases, judges must be guided by standards that are not rules, and these non-rule standards are either principles that concern the rights of individuals or policies that concern social or collective goals. In contrast to the traditional view, which claims that judges should be guided by appeal to policies in settling hard cases, Dworkin argues that the appropriate technique should involve appeal to principles, that is, to the consideration of the abstract rights of individuals such as liberty , equality , respect, and dignity . According to his rights thesis, judicial reasoning about hard cases takes placeagainst a background of assumptions about rights. “If the case at hand is a hard case, when no settled rule dictates a decision either way, then it might seem that a proper decision could be generated by either policy or principle.” Dworkin, Taking Rights Seriously ... log in or subscribe to read full text