Dworkin's Legal Positivism

1539 Words4 Pages
bulb-icon

Recommended: Weaknesses of legal positivism

The focus of this essay is to examine the extent to which Dworkin provides a convincing alternative to positivism. The central claim of legal positivism states that "in any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits". Dworkin completely rejects the positivist approach because he believes that "no combination of source-based rules, no matter how broadly construed or how carefully crafted can ground a theory of law". Dworkin is evidently making a big move away from positivism. The first part of this essay will explore how Dworkin 's rejection of positivism has led him to formulate an alternative theory of law. The final part of the essay will analyse how Dworkin has failed in getting an …show more content…

Hart claims that existing law must make reference to the basic rule of recognition , in basic terms, Hart is saying that a rule can only count as a law if it emanates from a certain source ( i.e. Statutes). According to Hart the main reason for having a rule of recognition is to provide a body of rules which will be publically ascertainable. This will allow us to work out what the rules are without having to depend on (usually subjective) judgments about justice or moral rights. Dworkin disputes this view of law and legal reasoning because he believes that the thesis only identifies the law by the criteria of pedigree and not by the criteria of content. In Law 's Empire Dworkin discusses the case of Riggs v Palmer to illustrate that the law does not always have to consist of rules which derive from a particular source. In Riggs, Palmer (who murdered his grandfather) claimed that he was entitled to inherit under the will of the deceased. The criminal law existed to punish Palmer for murdering his grandfather but there was no statute to invalidated his claim, the rules of testamentary

Show More
Related

  • Legality and Morality

    816 Words  | 2 Pages

    The aim of this essay is to differentiate between law and morality, and to discuss whether there is an overlap between the two concepts. I will be making reference to theorists of both positive law and natural law, namely H. L. A Hart and Lon L. Fuller respectively and compare the two views on the above question. For the purpose of understanding, I will apply the two theories to the legal system in Nazi Germany.

    Read More

  • Social Conflict Theories

    757 Words  | 2 Pages

    One type of analytical perspective is the conflict perspective which is the belief that conflict is fundamental and social life and cannot ever be resolved completely. Where laws are tools used by the powerful to keep others and check and keep themselves in power. Law enforcements of social control simply keep those who are not powerful in check with the laws established by those in power. The pluralist perspective believes that within a complex society every different social group will have their own set beliefs, values, and interests. Despite these differences most groups will agree that laws are beneficial. For this perspective laws are a peacekeeping tool for officials to settle disputes amongst society. It is assumed that all parties will agree with the settlement as it agrees with society’s views that law is a fundamental part of settling disputes. Another perspective is the consensus perspective, in which most of society agrees on what is wrong and right and various elements of society work...

    Read More

  • Legalist Perspective Of Legalism

    1828 Words  | 4 Pages

    In contrary to its contemporary antagonist philosophical schools, who advocate the practices of humanness and the rightness and set ideal of the past, the Legalists, in their complete rejection of the traditional ethics, embraces the efficacy of political power and uphold a society of laws and punishments. As the old feudal states decayed and the smoke of endemic warfare suffused, the need for a more rational government that can afford greater centralized power so as to strengthen a state against its rival increased substantially among the Warring States. Such a rising urge necessitated the emergence of the Legalists and further predetermined the Legalists’ inherent nature – realistic, totalitarian and problem-solving – which, with the realization of its significance and duty in the stream of history, finds its hegemonic character as well.

    Read More

  • Analysis Of Fuller's Internal Morality Of Law

    1864 Words  | 4 Pages

    The American jurist, Lon Fuller, developed a secular natural law approach, which believes that in order for the law to be legally valid, the law must conform to the “internal morality of law”. He rejects Hart’s theory on the strict separation between law and morality. He believes legal system has the specific purpose of “subjecting human conduct to the governance of rules”. In this purposive enterprise, it is necessary to have a connection between “law” and “inner morality”. This is because these fundamental procedures are accepted as something good, as contributing to a good order, hence they are also counted as moral rules. In this paper, I will evaluate whether the “morality” is satisfied in his theory with supporting arguments on the value and immoral acts as well as the arguments against the critiques made by the positivist to determine if people have the moral obligation to obey the legal rules that conform to his internal morality of law.

    Read More

  • Riggs V Palmer Case Study

    1528 Words  | 4 Pages

    Palmer, the defendant, claimed that he has the right to the property according to the law because he was named the heir in the will (Riggs v Palmer). The plaintiffs, Mrs. Riggs and Mrs. Preston, however brought this action before the court to fight against this will, for they believed that Palmer should no longer be entitled to the property, which he so wrongfully gained. The objective of the statute is to address issues concerning wills so that testators could carry out their final wishes by passing their property off to their loved ones (Riggs v Palmer). This fact is what gave rise to different arguments from the majority to the dissenting judges. The issues were how to interpret the law rationally, and whether Palmer, who murdered his grandfather should be entitled to the property. The judges believed that although the law at that time did not address the issue of what would happen to the property in the event that the heir murdered the testator, to allow such a thing would never be the intention of legislators (Riggs v Palmer). Had legislators ever

    Read More

  • Jurisprudence: Thomas Jefferson, Martin Luther King Jr.

    412 Words  | 1 Pages

    Jurisprudence is the study of legal theory, and in the western world, there are two primary legal philosophy camps that guild the passage, enforcement, and interpretation of laws. These two theories are natural law and positive law theory. Natural law is the older of the two and argues that law should reflect the objective morals of society. A few notable natural law theorists are Thomas Aquinas, Thomas Jefferson, and Martin Luther King Jr. Positive law developed in the eighteenth and nineteenth century and argues that law and morals are not the same and that statues that have been passed by any human institution and have legitimacy regardless of perceived objective morals. A few notable positivists are Jeremy Bentham, John Austin, and H.L.A.

    Read More

  • Where The Wild Things Are Analysis

    502 Words  | 2 Pages

    When drawing on the contrast between legal positivism and legal ethics, Manderson’s reading of Maurice Sendak’s children’s story, “Where the Wild Things Are” offers a thesis that is grounded on the idea of the absence of ethics within modern law. It is his belief that this absence is brought upon by the dominance of legal positivism.

    Read More

  • Ronald Dworkin The Rules Of Statutory Are There Separate Rules?

    1284 Words  | 3 Pages

    There has been some reference by scholars to an interlinked system of rules of which one cannot be pinpointed as the most important, but in fact all may be applicable to a particular case and should be taken into account. It is stated by Ronald Dworkin that “we cannot say that one rule is more important than another within the system of rules” . He argues that though there are several rules, clarity of these rules is still present as they work together and are interlinked so the judge must take them all into account when interpreting a

    Read More

  • H. L. Hart And John Austin's Command Theory Of Law

    851 Words  | 2 Pages

    In The Concept of Law, H. L. A Hart criticizes John Austin’s command theory of law and argues for a new framework that interprets laws as rules. As a legal positivist, Hart is motivated to separate the descriptive question of what is from the prescriptive question of what law should be. Despite this, he believes we must also consider the normative aspect to law, which is reflected in the obligation we feel to follow it. With the notion of obligation in consideration, Hart proposes a framework that is a more sophisticated and consistent view of how legal systems work. In this paper, I will argue that - despite the overall usefulness of his framework – he fails to properly address how judicial decisions play a role in the changing and challenging

    Read More

  • Judges Must Make Law

    2340 Words  | 5 Pages

    1.The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is clear way of distinguishing the ratio of a case…

    Read More

  • The Purpose of Criminal Law

    918 Words  | 2 Pages

    Even though constituents of civilization may protest about the laws that control their daily lives and dispute in opposition to government power on principle, civilization could not accurately function without laws and without criminal regulation in particular. For centuries many have seen the principle of criminal law and of the government and the legal system collectively, as essential for the “smooth implementation of society and the conservation of order” (Duff, 2008).

    Read More

  • The Formal And Substantive Theory Of The Rule Of Law

    1306 Words  | 3 Pages

    His next five laws are about how law is applied; agencies of the law must enforce the law using fair and equal processes. Therefore is is clear that formal theories focus on only procedures and application. The substantive theory of the rule of law, it is important to note that the rule of law is inherently cumulative, meaning it is concerned with the same principles as the formal theory of the rule of law, however adds to it by focusing on its content, substantive theorist believe that law’s content must be good in order to comply with the rule of law. Like Raz, Lord Bingham, the key advocate for the substantive theory, also has eight principles, however it is only his fourth principle that is substantive - “the law must afford adequate protection of fundamental human rights’’ It is evident that this principle is about the substance of law, the substantive theory goes further by explaining law must protect individuals and must not require us to breach our human

    Read More

  • Legal Positivism

    829 Words  | 2 Pages

    Legal positivism is a legal philosophy or thought advocating for the written rules of law to be only the source of law. The implication hereof is that in the interpretation of any text of law recourse should be sought in the wording of that very same law or text to be interpreted. In our view, this is a sound philosophy because it promotes and maintains legal certainty by basing the interpretation of law on known and written rules, rather than some unwritten rules or personal opinion of judges that may be based on some ethical and moral principles. In this regards, the separation of law from morals as maintained by positivist thinking may contribute to the neutrality and objectivity

    Read More

  • Law In Society

    1347 Words  | 3 Pages

    Leon Petrażycki and Eugen Ehrlich had independent work but their theories corresponded with one another in at least one respect (33). Both theorists believe that the law is found in institutions that are outside authority.

    Read More

  • Legal Realism Essay

    930 Words  | 2 Pages

    Legal realism defines legal rights and duties as whatever the court says they are. Out of all the legal theories we have examined in class, I personally believe that this is the one that best exemplifies the purpose of law and would best suit and benefit society. The Dimensions of Law textbook defines legal realism as “the school of legal philosophy that examines law in a realistic rather than theoretical fashion; the belief that law is determined by what actually happens in court as judges interpret and apply law.”

    Read More

More about Dworkin's Legal Positivism

Open Document