“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 problems associated with politics into his legal theory itself. It seems that Dworkin proposes a sort of “middle way” between positivism and natural law theory. This idea has been conceptualised due to the fact that despite heavy criticisms of positivism and Hart, Dworkin remains distinct from Natural law theorists as he doesn’t support the idea of an objective moral order. Thus, the notion of Dworkin’s Third Theory of Law was created.
Dworkin’s theory stemmed from criticisms of Hart on two fundamental levels. Firstly, Dworkin fiercely objects the notion that law consists only of rules and that there are numerous other factors to be considered, going on to state, ‘the law of a community consists not simply in the discrete statutes and rules that its officials enact but in the general principles of justice and fairness that these statues and rules, taken together, presuppose by way of implicit justification’. Secondly, Dworkin further denies Hart’s view that courts have discretion to decide difficult or “hard” cases by making new law, essentially making decisions retrospectively. Dworkin believes that within every hard case lies an objectively correct answer that is inherently present within pre-existing law. As such, Dworkin believes that since judges are bound by law to find the objectively correct answer to cases via the relevant issues of law, it is apparent that judges and courts blatantly lack the discretion to simply conjure up new law so as to resolve a hard case. Nevertheless, he argues that there exist numerous standards and methods that judges should be able to use when resolving hard cases. Dworkin introduces the concept of ‘principles’ which exist entirely separately from rules. When a rule applies to a case, there is no discrepancy, and they serve to take on an “all-or-nothing” approach. He describes the difference between legal principles and legal rules as a ‘logical distinction’. Principles however, despite being applicable to the case, simply...
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