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Dworkin's Theory Of Discretion

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In hard cases, judges are not legislating, as Hart’s positivists assert, they are inducing based on principle. Judges have a duty not only to apply the rules, but also to make sure that the legal system is consistent with the principles of the society. When judges are said to legislate, they are not making the rules but discovering them. [20]
According to Dworkin understanding the role of the courts is to defend the rights of citizens from the likelihood of unfair rules or other circumstances in which the written laws do not satisfactorily defend their natural rights. [21] Since judges have a duty to defend rights, they must step in and make rulings to defend such rights. [22] The character of judicial cognitive is not one of discretion, then, but of a duty to search a judgement based on principle that shields civil …show more content…

Yet it is also misleading to say that judicial duty prevents discretion. Judges can use discretion; they use discretion in a so-called weaker sense

As a theory of adjudication in the English and American contexts, the Dworkin's theory is, at least, challenging, provocative. Thus Dworkin alternative theory of adjudication is persuasive.
Bibliography
1. Concerning the Hart and Dworkin Debate Constitutional Law Essay.http://www.lawteacher.net/free-law-essays/constitutional-law/concerning-the-hart-and-dworkin-debate-constitutional-law-essay.php?cref=1 last accessed on 01 April 2016
2. Peter Hardy. An Evaluation of the Positions of Hart and Dworkin on the Role of Judges Faced with Hard Cases, last accessed on https://vibrantbliss.wordpress.com/2011/12/23/hard-cases-for-judges/
3. Sara Smollett. Dworkin and Judicial Discretion, Philosophy of law, last accessed from http://www.yellowpigs.net/philosophy/dworkin on 02 April 2016
4. Dworkin, Ronald, (1977), Taking Rights Seriously, London,

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