Three Main Tenets Of Legal Positivism's Skeleton By Ronald Dworkin

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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
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In specifying the meaning of judicial discretion, Dworkin identifies three different types: first is a judge’s decision that demands a judgment upon purported standards, second is a judge’s decision that is restricted from being reviewed by other authorities, and third is a judge’s decision made by a judge who is “not bound by any standards from the authority of law” (Dworkin 82). Dworkin calls the third kind to be a “strong discretion” and claims it to be the one that positivists’ judicial discretion mean. He argues that the first two kinds, or weak discretions, would not fall under positivism’s judicial discretion because positivism allows for judicial discretion only in the cases that lack clear and appropriate legal resolutions; the existence of purported standards in the first kind would disqualify a judge’s decision from being a discretion. Similarly, a judge’s ultimate ruling over a case in the second kind would not qualify as a “discretion” if an established rule has guided the

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