“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
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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 the courts and judges in rendering ‘initially vague standards’7. Dworkin explains that there is not just one standard, but in fact two other standards operative in our system, namely policies and principles.
He distinguishes between these two to explain that policies attempt to ‘secure the community goal’ where as principles ‘justify political decisions’ by showing that the decision respects or secures some individual or group right.8 This goal is set out to generally improve the community.9 In nature principles, unlike Harts rules, can be applied or not applied without affecting there existence, a court will draw on these standards in order to reach a decision on the ‘hard case’10.
With this submission, it is in disrepute with Hart’s notion of the ‘Rule of Recognition’. For instance, officials in Nazi Germany obeyed Hitler’s commands as law, only out of fear. Dworkin compares both Harts and John Austin’s11 theory to say that there would be no difference between a group of people accepting a rule of recognition and simply falling into a self-conscious pattern of obedience out of fear12. Dworkin continues to explain that if acceptance requires more than obedience, then there was no law in Nazi Germany. He thus believes that it is inadequate, notably as
Ibid Lectures in Jurisprudence (ed. Cambell), p.219; post, 1421, quoted in Freeman, M.D.A. (2001) Lloyd’s Introduction to Jurisprudence, 7th ed., London: Sweet & Maxwell. At p1390 8 Supra, n , no1 at p82 9 Riddall, J. G. (1999) Jurisprudence, 2nd ed., London: Butterworths.at p101 10 Wacks, R. (1999) Jurisprudence, 5th ed., London: Blackstones Press. At p120 11 A theory that a proposition of law is true within a particular political society if it correctly reports the past command of the sovereign power. 12 Dworkin, R. (1986) Law’s Empire, Oxford: Hart Publishing. At p35 7
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20325011 there is no rule of recognition that distinguishes between legal and moral principles.13 Therefore Hart’s...