Dworkin’s Main Criticisms of Hart’s Theory
The concept of law is an important philosophical subject in legal jurisprudence that has provoked debate in previous years, especially between Hart and Dworkin’s . Hart's theory was contained in the Book, the Concept of Law that provided a general and normative description that explained the notion of law. Herbert L.A Hart is famous for his legal philosophy that sought to define the concept of law. He redefined jurisprudence and established a line of inquiry in philosophy regarding the concept of law. Dworkin’s criticisms of Hart’s arguments have a focus on the doctrine of judicial discretion and the separation of morality and the law.
Hart’s position as a rule based approach that included the emphasis on the different perspectives both internally and externally as well as the distinction between secondary and primary rules. Hart argued that primary rules are rules that impose certain duties to individuals while secondary rules are rules that confer power . For example, the most important secondary rule is the rule of recognition that sets out criteria that can be used to identify laws within the legal system. The two major claims in Hart's arguments were the law comes only into existence through the recognized social sources. This is known as the sources thesis. The second contingent claim, known as the separation thesis established that there is not a necessary connection between morality and the law . Through this concept of rules, Hart suggests that, in situations where there are no legal rules that regulate cases, judges have the discretion to make rules or the law to apply in such situation and similar ones that may arise in the future.
Dworkin’s argument seemed to advance what H...
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Ronald Dworkin has become one of the most influential legal philosophers over the last century providing a ‘sophisticated alternative to legal positivism’. Dworkin is a non-orthodox natural law theorist, his account of law centres on his theory of adjudication. A key aspect of adjudication is the concept of Law as Integrity. However, some commentators suggest that Dworkin’s ideal does not reflect the reality of judicial interpretation. In this paper I will outline Dworkin’s ‘law as integrity’ and then highlight some of the criticisms that appear to generate doubt over his writings as a convincing model. I will conclude that whilst his main opponents offer some substantial critiques of Dworkin’s theory of ‘law as integrity’, Dworkin does establish a convincing theory that tries to bridge the gap on judicial discretion that other notable theorists, including H.L.A. Hart, fail to achieve.
We must consider whether they are “authoritarian law-makers, or if their profession makes them mere declarers of the law”. In this essay, I will argue the ways that judges do make law, as well as discussing the contrary. The English legal system is ostensibly embedded on the foundation of a ‘high degree of certainty with adaptability’ based on a steady ‘mode’ of legal reasoning. This rests on four propositions. 1.
The central aim of this essay will be to support the legal-positivist that law and morality are strictly separable. In its simplest form many understand legal positivism to be the existence and content of law, which depends on social facts, and not on its merits. I will engage closely with the work of John Austin and his concept of law, which offered a developed and progressive piece of work from Bentham, focusing on Austin’s The Province of Jurisprudence Determined (1832) in order to demonstrate one of the earlier accounts of legal positivism. By exploring Austin’s theory of sovereignty, in which he outlines that in every state there exists an authority to which a large mass of citizens show compliance, I will address the consideration that
Firstly in this report, I will be giving the different definitions of rule of law by different philosophers; secondly, I will be applying the rule of law to the English Legal system and thirdly I will be explaining separation of powers with a focus on the impartial judiciary. Finally, I will be using cases to support every detailed point given.
Dyzenhaus, David, Sophia Moreau, and Arthur Ripstein. "R.V. Labaye." Law and morality: readings in legal philosophy. 3rd ed. Toronto: University of Toronto Press, 2007. 336-341. Print.
The relationship between law and morality has been argued over by legal theorists for centuries. The debate is constantly be readdressed with new cases raising important moral and legal questions. This essay will explain the nature of law and morality and how they are linked.