Dworkin's Theory Of Law In The Community

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Community A are proposing to follow a version Dworkin’s theory of ‘law as integrity’. Attempting to give value to the community and the individual. However this can be criticised because interpretation of the law becomes superhuman, relying on the assumption there is coherence in the communities previous decisions. This is something the community should consider when proceeding. The Community also places importance on the court developing legal principles over time through common law. This can be somewhat linked to Dworkin’s Literary analogy. This idea would require judges in the community to have considerable discretion. This emphasises the importance of the development of precedent within the Community. Dworkin argues that the obligation …show more content…
In Austin’s view, the effectiveness of law is depended upon a strict and limiting view of the nature and basis of positive legal authority. Therefore the law in Community B would always be a command backed by a sanction. If this was to be followed then the community 's aim of a first constitution which commands general acceptance would come from the sovereign with ultimate power. However would this be generally accepted? Possibly not therefore Kelsen’s approach should be considered and the Grudermorn as the source of the Law. This, in comparison, is self validating and therefore would command the general acceptance of the community. For Kelsen the chain of validity guarantees the unity of the legal system by validating specific rules through more general rules. However in community B there is also general detailed law making authority given to the legislative body, similar to the UK system through the doctrine of parliamentary sovereignty. This relates back to Austin 's theory who would argue that a common law system like that is Community A is that involving, ‘dog law’. Austin 's theory of the law as command is however rejected by Hart. Instead he would argue that the community would benefit from considering the social dimension of rules. He considers this social source to be far more significant than command, sovereignty and action because they manifest of real behaviour and thoughts. This may be a possible positivist alternative approach for Community

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