“What Are the Major Strengths and Weakness of Dworkin’s Theory of Law as Compared to a Positivist or Natural Law Perspective?” Discuss.
“What are the major strengths and weakness of Dworkin’s theory of law as compared to a positivist or natural law perspective?” Discuss.
Arguably one of the most influential legal theorists of the 20th century, Ronald Dworkin’s dealings with law’s interpretation and integrity has lead to inevitable contradictions with that of positivist ideology, with his work essentially revitalising a method of thinking that had long been considered dead and buried. Perhaps most notoriously, Dworkin combated the positivist theory of his former teacher and predecessor as Professor of Jurisprudence at Oxford University, H.L.A. Hart. When comparing the two, it is apparent that Dworkin and Hart disagree on a plethora of issues, however there exist several disagreements that can be noted as fundamental.
Since the work of Dworkin deals with the criticism of positivists such as Hart, to appreciate Dworkin’s arguments, it is thus necessary to obtain some background information so as to understand what it is that Dworkin is actually criticising. H.L.A Hart was a prominent figure in legal positivism and moved the theory in a somewhat new direction, away from the founding modern ideology created by the likes of Austin and his “Command theory”, yet continued to insist on the importance of the separation of law from morality. Hart stated that law comprises of rules which can be broken down into two branches: primary rules which impose duties, and secondary rules, which include ways of asserting power so as to enforce and regulate the primary rules. The other fundamental notion towards Hart’s theory is the idea of “open texture”. By this, Hart believes that when certain cases arise in which there is no precedent present to give direction to an existing rule of law, judges need to exercise their discretion in areas of penumbra.
It is well known that when considering Dworkin, there remains no clear distinction between his political and legal theory due to the fact he integrates moral
Arguably one of the most influential legal theorists of the 20th century, Ronald Dworkin’s dealings with law’s interpretation and integrity has lead to inevitable contradictions with that of positivist ideology, with his work essentially revitalising a method of thinking that had long been considered dead and buried. Perhaps most notoriously, Dworkin combated the positivist theory of his former teacher and predecessor as Professor of Jurisprudence at Oxford University, H.L.A. Hart. When comparing the two, it is apparent that Dworkin and Hart disagree on a plethora of issues, however there exist several disagreements that can be noted as fundamental.
Since the work of Dworkin deals with the criticism of positivists such as Hart, to appreciate Dworkin’s arguments, it is thus necessary to obtain some background information so as to understand what it is that Dworkin is actually criticising. H.L.A Hart was a prominent figure in legal positivism and moved the theory in a somewhat new direction, away from the founding modern ideology created by the likes of Austin and his “Command theory”, yet continued to insist on the importance of the separation of law from morality. Hart stated that law comprises of rules which can be broken down into two branches: primary rules which impose duties, and secondary rules, which include ways of asserting power so as to enforce and regulate the primary rules. The other fundamental notion towards Hart’s theory is the idea of “open texture”. By this, Hart believes that when certain cases arise in which there is no precedent present to give direction to an existing rule of law, judges need to exercise their discretion in areas of penumbra.
It is well known that when considering Dworkin, there remains no clear distinction between his political and legal theory due to the fact he integrates moral