from rules in that: 1) they involve a certain moral judgment upon conduct; 2) they are defined not so much by formal legal processes but by the use of common sense; and 3) they are not applied in the logical-conceptual manner of rules but in a way that is sensitive to time, place, and circumstance. A principle, unlike a rule, is a matter of judgment more than deduction. Principles do not require that judges decide cases in a particular way, because there may be other principles in the law that would support a different outcome. The judge in each case must first determine whether a principle applies and then weigh the relative importance of that principle against other principles that would argue a different result.’ For this reason, the resolution of cases on the basis of general principles requires the exercise of a broad judicial discretion, and such discretion is more characteristic of“equity,” which emphasizes the reaching of fair results in the instant case, than of formal“law.”"'' As legal systems develop into maturity, the practice of wide judicial discretion begins to conflict with the basic conception of rule of law.“The discretion of a Judge is the law of tyrants”; who, after all, is entitled to say, on the basis of his personal judgment, just what is“fair” or“just” or“reasonable”?'"? Equity eventually gives way to formal, rule-based law and is combined with it; jurists begin to emphasize the value of rulebased law as a means of constraining the freedom of judges to arrive at whatever decisions seem right in their eyes. Over time, the old equitable principles are transformed into hard and fast rules that seek to define in precise terms just what constitutes“fair” or “Just” or“reasonable” conduct in specific cases.'"’ Given this growing identification between the positive rules of law and the fundamental principles of justice, jurists- no less than rabbis- are unlikely to pérceive a conflict between them and will seldom overturn the former in the name of the latter.
Yet even if general principles play but a limited role in the discourse of mature legal systems, their function remains a vital and even creative one. Judges do resort to principles when the rules“run out”: when a case is not covered by an existing rule, When the rule’s application is unclear and in need of interpretation,