Monday, October 13, 2008
Policy v. Principle
Dworkin's distinction between the use of principle and that of policy for adjudication did not seem like it was a new or distinct idea. I believe we have been seeing similar arguments along these lines, which all go back to trying to decide just where the line is that divides the amount and type of discretion that should be given to judges. The idea that policy is or should be the driving force behind judicial decisions is as Dworkin point's out not really applicable to all situations becuase these applications of policy are not very elaborate and do not allow room for the future presently unconcieved cases or situations that are to arise. This is why often times the application of principle as a guidepost to the law can be more beneficial to the process of adudicating namely becuase it allows for wide application and has a broader scope with which to apply to cases. I do agree with Dworkin when he talked about how there needs to be an interaction between the use of principle and policy and that the use of either can not alone be sufficient guidelines or limitaions upon a judges application of the law. There needs and depending upon the case is usually a mixture of these two forms within the discision that is reached. Judges should not strictly be held to follow policy, but should also not be free to run rampent applying principles that can not be consistenntly applicable.