Dworkin's Theory Of Excessive Judicial Creativity And Make Law

Jurisprudence is the study and theory of law. There is no doubt that jurisprudence it is also known as legal theorists which obtains to understand deeper the nature of law, of legal reasoning, legal systems and of legal institutions. But who actually excessive judicial creativity and make law?

On the one hand some positivists claim that it is Dworkin who encourages excessive judicial creativity and on the other hand Dworkin says that positivists encourage excessive judicial creativity by claiming that judges make law.

In Hart’s theory he argues that law is a system of rules which can be appreciated in the distinction between personal habits and social rules, the distinction between being obliged and being under obligation; the distinction

However, Dworkin’s argument for many years was that there would always be one right answer to any legal problem and that it is impossible for judges to make law, therefore, in other words even if there is no relevant statute or judicial precedent, judges must identify and state the law, rather than making it .

Dworkin believes that the theory of judicial process is based on the distinction between policies and principles . On the other hand, Hart claims that law is made up of rules only and that judges make use of these rules when deciding a case, Dworkin, rejected Hart’s description of legal positivism that legal system contains only rules when legal system comprehends principles as well .

The distinction between policies and principles can be identified in his books Taking Rights Seriously and in Law’s Empire . He defines that “a policy is that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political or social feature of the community (through some goals are negative, in that they stipulate that some present feature is to be protected from adverse change)” . He continues by saying that ‘principle’ “a standard that is to be observed, not because it will advance or serve an economic, political or social situation deemed desirable, but

. Dworkin uses Hercules in many cases such McLoughlin v. O’Brian in order to show how Hercules might decide this kind of hard cases and considered some possible interpretations . For instance, Hercules gathers together principles within the precedents and other legal decisions and then makes a decision, where basically in practice the judges engaged in an interpretative exercise to ensure that his interpretation fits with the legal system of Dworkin’s idea of law of integrity .

The important disagreement that has to be mentioned is that Hart says that judges have different answer in any case and separates the answer in easy cases from hard cases. On the other hand, and I think is more arguable, Dworkin specifies that there is a right answer to any legal problem and so it is impossible for judges to make law . Dworkin explains that judges have to make moral judgments, the choice of the judge in law as integrity. The role of mistakes fits actual practice, as in Donoghue v Stevenson where the judge found principles and the beginning of the law of