110 Mark Washofsky

or when two or more conflicting rules would seem to apply to the case at hand. Judges utilize principles, in other words, to fill the “gaps” or resolve uncertainties in the law. And this is no little thing. It was the legal philosopher Ronald Dworkin who named his prototypical judge“Hercules,” indicating the arduous task facing the judge who must decide a hard case, one for which no one obviously correct legal answer exists. The judge who confronts such a case must locate the relevant data— for example, the decisions of past judges in related cases— and create a theory that interprets those data in a“principled” way, explaining as best he can“according to(his) own judgment, what the earlier decisions come to, what the point or theme of the practice so far, taken as a whole, really is.” Principles are the tools with which the judge identifies the point of the earlier decisions, the unifying factor that lends them coherent meaning, the means by which Hercules creates the theory that best explains them and that corresponds to the“best available interpretation” of the law."

Dworkin ’s understanding of the nature of legal interpretation is, to be sure, exceedingly controversial. He originally presented it as a critique of the theory known as legal positivism, which has largely dominated jurisprudential thinking in recent generations.'” Legal positivists tend to define“law” as a system of rules, wherein each rule is validated by some formal, systemic pedigree(“rule of recognition”). If in the course of a decision the judge appeals to 2 source other than those rules, she is going beyond the“law” properly so-called. The judge, say the positivists, may be entitled and even required to make such an appeal in order to decide the case, but when she does so she is not deciding the matter according to“law” but is rather resorting to extralegal sources in order to modify a legal rule or to create a new one. General principles, say the positivists, are just such an“extralegal” source. Dworkin disagrees, arguing that“law” contains principles as well as rules. The conceptual issue between the two camps is the extent to which a judge’s decision in a hard case is, as Dworkin sees it, constrained by the existing law or whether, as the positivists have it, the product of judicial discretion, more akin to an act of legislation

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