Essay on General Attack On Legal Positivism

1479 Words Nov 14th, 2015 null Page
In his general attack on legal positivism, Ronald Dworkin identifies three main tenets of positivism’s “skeleton” (Dworkin 74): The first is that a community’s law is distinguished from other social standards by a master rule’s recognition. The second is that when a case cannot be resolved by an existing set of rules, a judge must exercise discretion to reach a decision. The third is that a legal obligation exists if and only if a case falls under a set of valid legal rules. Organized under these key tenets, positivism separates the existence of law from morality and argues that a relationship between law and morality is unnecessary.

Dworkin, however, finds the positivists’ denial of this relationship to be problematic; in his scrutiny of the second tenet, or the “doctrine of judicial discretion” (Dworkin 86), Dworkin argues that “at least some principles must be acknowledged to be binding upon judges” (Dworkin 83). Defining principles to be a set of standards in accordance with certain “dimensions of morality” (Dworkin 75), he ascribes principles to be binding upon judges in his “law as integrity” (Dworkin 92), an alternative legal system he proposes over positivism. In this essay, I will examine this claim and argue that Dworkin’s system of law ultimately fails to refute and exceed positivism.

Because there are various “hard” cases that appropriate legal rules are too vague or simply fail to cover, positivists lend to judicial discretion as a method of “manufacturing a…

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