Role Of Principles In The Law
...Word Count: 2960 excluding footnotes
LAW FACULTY
VICTORIA UNIVERSITY OF WELLINGTON
2005
Introduction
[1] In discussing what role principles play in the law, we are essentially conducting an investigation into the more fundamental question of what is law itself. We are asked to decide which is the most accurate view of the process of adjudication, between the positivist view that dismisses, to varying degrees, principles as a component of law, and the Dworkinian view that principles do exist within the law. This question forces us to examine the dichotomy that exists between principles and rules, and the consequences of placing emphasis on either. It is my submission that principles are not only a necessary component of law, but also equally as important as rules, as both are necessary for the effective functioning of law in society. In order to gain a clear understanding of the role principles play, it is necessary first to define the concept of principles and other contrasting directives. Then, discussion of the major contemporary jurisprudential viewpoints will be followed by an examination of the relative importance of rules and principles in terms of the effective operation of the legal system. Following this will be discussion of the Public International Law paradigm to illustrate the applied relevance of the role of principles.
[2] Due to the fact that principles are intimately related to morality, this examination inevitably touches on a more fundamental question of whether morality is a criterion of legality. However, although this issue will be discussed this where overlap is unavoidable, for the purposes of this essay, an in depth investigation would not be pertinent.
What are principles?
[3] Because of the inherent ambiguity of language it is necessary to define exactly what we mean by "principles". There is a common...
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