Can a principle be equated as some form of morality?
and
Can a principle diverge from law and be in favor of morality?
I ask my first question because it is obvious that Hart would reject the idea of principle being a form of morality. To Hart the proper place for morality in law is in making the law not in judging it, yet when some decisions are made in cases they come to those ends by means of a moral process. So then is principle still not relevant to morality in this case?
Unlike Hart, Dworkin would rather appeal to the principle and not the rule. I came to my second question because I was looking up the term principle and words like accepted, truth, and right conduct were used to characterize the word principle. All the above terms can be in relation to morals and morality ... which lead me to ask myself where does the line between the the two stand? Which lead me to my second question.
If you have an answer for me please provide one ... If you have your own questions or opinions to add please do so as well.
From my understanding of the reading Dworkin and Hart believe that principles are a form of morality. Dworkin believes these principles are useable in court whereas Hart believes that they are just moral values that don't have anything to do with the law, they should not be used.
ReplyDeleteWhat do you mean by diverge from law? If you mean it is a part of law and is getting away from it to become more morally based. I would say that is is already based in morality not in law.
If a descion in a court was made by using principle Hart would say that the principle is of course related to morality in this case, and therefor the judge who decided it was just spewing nonsense and wasn't really doing his job
For Hart morality is not inherent in law because the rules are already codified. If a judge tries to retroactively implement rules in a case that current rules do not apply, this would be an excessive use of discretion (i.e. bias). Hart would expect the rule to come after this case is ruled based current laws of that given period of time. Dworkin's contention is that judges should have discretion as a way to allow the public reason of that time period to be reflected in court decisions. Judges are still constrained in that they must follow to some degree the precedents set previous to this decision.
ReplyDeleteLike Patrick was saying, a principle is essentially a manifestation of morality. I think your second question is implying can principles override an enforced law? The answer would be yes in Dworkin's case as long as it was a 'hard case.' Dworkin assumed that law shouldn't be interpreted in every case, but serve as a new way of tackling an unprecedented problem which the law could not answer, which is bound to happen in any legal system. The problem here is that morality is not universal, but rather largely subjective so it could turn out to be a biased or unfair ruling. This is why Hart is so fond of legal positivism and opposed to Dworkin's notion of interpretation in the law.
ReplyDeleteI think principles, in the context that we have been using the term in this class, would inherently contain moral value. Moreover, I would agree with the other comments, in that the law can diverge from morality, and in some senses, good and bad, they can overrule the other. I would say good examples of the law transcending moral principle would be Dredd Scott or Korematsu, while the opposite would be true in a case like Brown v. Board of Education.
ReplyDeleteYes I absolutely agree with you Dominick.
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