‘Private Law Adjudication as an Arena of Struggle Between Principle and Policy’

“Ronald Dworkin famously argued that ‘[j]udicial decisions in civil cases, even in hard cases …, characteristically are and should be generated by principle not policy’ (Ronald Dworkin, Taking Rights Seriously (Duckworth, 1977), p. 84. See also Ronald Dworkin, Law’s Empire (Harvard University Press, 1986), p 244). Given the significant place policy considerations seem to occupy in civil law adjudication one might be tempted simply to dismiss Dworkin’s argument as too far removed from actual and desirable judicial decision-making. I believe, however, that there is something to be learned by critically engaging with his argument, which is what I will do (or begin to do) in this comment. The purview of my comment will be private law, and my examples will be drawn from tort law, the private law area I am most closely familiar with. I will suggest that while the principle/policy distinction does not mark a rigid boundary circumscribing what courts should do (or characteristically do), it plays a different and important role in shaping judicial decision-making …” (more)

[Noam Gur, New Private Law, 19 August]

First posted 2015-08-19 10:29:27

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