Da li sudije stvaraju pravo? - Debata između Harta i Dvorkina

Abstract

This paper analyzes one of the issues that were part of the Hart-Dworkin debate. This is an issue whether the judges, by applying legal principles, create or discover the law. In order to get an answer, it is necessary to determine where the difference between legal principles and legal rules is, and what is their relationship. By analyzing the viewpoints, in particular Hart's and Dworkin's, we come to the conclusion that a key difference between legal rules and legal principles is the level of generality and that legal rules may be in a conflict, after which one of them shall cease to exist. As far as the relationship between legal principles and legal rules is concerned, we may conclude that legal principles are the mean of interpretation of legal rules. It is also demonstrated how application of different legal principles to the same case may result in different, even controversial solutions. This situation imposes a question whether the judges, by applying the legal principles, only discover or create law. This issue is especially important in cases where the legal rules do not offer single or any solution. In these situations we think that the judges create law to the extent to which they are free to choose one of the several legal principles that lead them in decision making, since the content of this decision, as it was illustrated in this paper through the examples from the practice, may occasionally differ, depending on the principle to which the judges opted for.