Critically Assess the Validity of Dworkin’s Criticisms Towards Positivism and Whether Natural Law Theory May Itself Be Disputed.
Critically assess the validity of Dworkin’s criticisms towards positivism and whether natural law theory may itself be disputed.
“Positivism is a model of and for a system of rules, and its central notion of a single fundamental test for law forces us to miss the important standards that are rules.” explains Dworkin on his attack on positivism. It is argued, by Dworkin, that both legal positivism and natural law theories are in reality searching for an answer to the question ‘what is law?’ a fundamental question and challenge towards the debate and critique of the natural lawyer and positivist.
However Dworkin directs towards another issue, a more specific question of understanding law, gained by asking ‘how do judges find the law’2. This directs attention towards ‘hard cases’3, a theory provided by legal positivism. It is explained by Dworkin that judges make use of standards that do not function as a system of rules, as opposed to what Hart would argue, but operate differently as other sorts of standards4. Hart, a positivist theorist, would argue that in the majority of cases rules will be clear, however, at some point, they will become indeterminate and unclear5. This is because they have what Hart calls, an ‘open texture’, and a defect inherent in
Dworkin, R. (1997) Taking Rights Seriously, London: Duckworth. At p22 Morrison, W. (1997) Jurisprudence: from the Greeks to Post-Modernism, London: Cavendish. At p422 3 A concept where the law seems to run out, they arise where it is not clear what the legal answer is, or where by the existing rules of law provide no answer. Riddall, J. G. (1999) Jurisprudence, 2nd ed., London: Butterworths. At p98 4 Supra, n , no1 at p81 5 McCoubrey, H. & White, N. D. (1999) Textbook on Jurisprudence, 3rd ed., London Blackstone Press. At p158
2 1
Page 1 of 13
20325011 any use of language6. This ‘open texture’, as explained by Hart, refers to a particular area of law that is left open for the exercise of discretion by
“Positivism is a model of and for a system of rules, and its central notion of a single fundamental test for law forces us to miss the important standards that are rules.” explains Dworkin on his attack on positivism. It is argued, by Dworkin, that both legal positivism and natural law theories are in reality searching for an answer to the question ‘what is law?’ a fundamental question and challenge towards the debate and critique of the natural lawyer and positivist.
However Dworkin directs towards another issue, a more specific question of understanding law, gained by asking ‘how do judges find the law’2. This directs attention towards ‘hard cases’3, a theory provided by legal positivism. It is explained by Dworkin that judges make use of standards that do not function as a system of rules, as opposed to what Hart would argue, but operate differently as other sorts of standards4. Hart, a positivist theorist, would argue that in the majority of cases rules will be clear, however, at some point, they will become indeterminate and unclear5. This is because they have what Hart calls, an ‘open texture’, and a defect inherent in
Dworkin, R. (1997) Taking Rights Seriously, London: Duckworth. At p22 Morrison, W. (1997) Jurisprudence: from the Greeks to Post-Modernism, London: Cavendish. At p422 3 A concept where the law seems to run out, they arise where it is not clear what the legal answer is, or where by the existing rules of law provide no answer. Riddall, J. G. (1999) Jurisprudence, 2nd ed., London: Butterworths. At p98 4 Supra, n , no1 at p81 5 McCoubrey, H. & White, N. D. (1999) Textbook on Jurisprudence, 3rd ed., London Blackstone Press. At p158
2 1
Page 1 of 13
20325011 any use of language6. This ‘open texture’, as explained by Hart, refers to a particular area of law that is left open for the exercise of discretion by
Bibliography: Books Dworkin, R. (1986) Law’s Empire, Oxford: Hart Publishing. Dworkin, R. (1997) Taking Rights Seriously, London: Duckworth. Doherty, M. (2005) Jurisprudence Textbook: the Philosophy of Law, 4th ed., London: Old Bailey Press. Freeman, M.D.A. (2001) Lloyd’s Introduction to Jurisprudence, 7th ed., London: Sweet & Maxwell. McCoubrey, H. & White, N. D. (1999) Textbook on Jurisprudence, 3rd ed., London Blackstone Press. Morrison, W. (1997) Jurisprudence: from the Greeks to Post-Modernism, London: Cavendish. Riddall, J. G. (1999) Jurisprudence, 2nd ed., London: Butterworths. Wacks, R. (1999) Jurisprudence, 5th ed., London: Blackstones Press. Journals Lester, A. (1993) ‘English Judges as Law Makers’ Public law 269-290 MacCormick, N (2008) ‘Our Knowledge of the Law: Objectivity and Practice in Legal Theory’ Edinburgh Law Review 150-153 Patterson, D. (2006) ‘Dworkin on the semantics of legal and political concepts’ Oxford Journal of Legal Studies. 545-557 Sadurski, W. (2009) ‘Rights and moral reasoning: an unstated assumption - a comment on Jeremy Waldron 's "Judges as moral reasoners’. International Journal of Constitutional Law. 25-42 Seims, M, M. (2008) ‘Legal originality’. Oxford Journal of Legal Studies. 147-164 Simmonds, N. (2008) ‘Law as a Moral Idea’. Edinburgh Law Review. 150-153 Waldron, J. (2009) ‘Refining the question about judges’ moral capacity’. International Journal of Constitutional Law. 69-82 Page 12 of 13 20325011 Page 13 of 13