Hukuki belirsizlik iddialarıyla ilgili hakimlerin konumu
Özet
As a debate is ongoing between legal formalism and legal realism on the matter of what the legal order is, realists are opposing the formalists? idea of ?legal order is about the law? by arguing the uncertainty of legal order. This aforesaid allegation of legal realists has been a point of origin for other movements like the criticals and post-modern legists and different arguments have been introduced about what the legal order is, together with asserting the idea of legal indeterminacy. Idea of legal indeterminacy claimed by these movements has been adopted by modern positivism which was the alternating face of classical positivism and H.L.A. Hart, frontier of this resilient understanding, stated that this legal indeterminacy is inside the legal order by segregating the hard cases. Against this idea of resilient modern positivism, liberal legalists fed through legal tradition asserted principle-based legal theories. Dworkin, one of the pioneers of rudiment-based legal theories, pointed out that legal order consists of principles and politics besides the laws; basic principles dependent on ethical value have a major role to provide the determinism on legal order when a judge?s creating a legal decision and using his/her judicial discretion or in the existence of unfair laws.In this study, it is examined that if this legal indeterminacy introduced by realists and asserted by positivists really exists and importance of ethical valued principles primarily principle based legal theory of Dworkin against this problem of legal indeterminacy, and the role of judges for providing legal determinacy.