Passage Discussion

[ptraye]

I could not understand what Dworkin was explaining (through the author) in paragraph 3.

What distinguishes legal principles from what Hart considers open-textured?

Please explain paragraph 3.







(p. 48)

[hippo3717]

Basically the biggest difference between the legal rules and legal principles is actually stated in line 38.

Hart is saying that hey... legal rules are explicit rules. So in a certain situations, they either can be completely applied or not at all; there is no partial application. Thus, judges need to use their discretion to rule in a certain cases where the legal rules can't be applied.

Dworkin says hellz no. He says that legal rules, not only they contain "rules," but also principles: these principles are underlying rationale behind the legal rules. Thus, judges don't have to use discretion but those principles to make a decision.

In regards to your question, open texture is what creates the "legal indeterminacy." What happens is that legal rules contain general terms that can create controversies depending on how one interprets: For example, like in the passage, one says "no vehicle in the park." Well when I think about it vehicles mean "cars" but when someone thinks of a vehicle, it could mean a "bicycle." well... which one is it? Does this rule allow bicycle in the park or not?

[soyeonjeon]

Can someone tell me if this map looks fine?
Thank you!!

P1: ongoing debate about law concerns determinability of hard cases.

P2: Hart claims that there are periphery areas of law, which renders some cases legally indeterminate, and requires judicial discretionary exercises.

P3: Ronald Dworkin views that in addition to legal rules, there is legal principles, which resolves legal indeterminacy, rendering judicial discretion unnecessary.

P4: Most interesting cases occur in the penumbra of legal cases and legal rules and one does not ruel out the other.