Dworkin's Legal Positivism

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The focus of this essay is to examine the extent to which Dworkin provides a convincing alternative to positivism. The central claim of legal positivism states that "in any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits". Dworkin completely rejects the positivist approach because he believes that "no combination of source-based rules, no matter how broadly construed or how carefully crafted can ground a theory of law". Dworkin is evidently making a big move away from positivism. The first part of this essay will explore how Dworkin 's rejection of positivism has led him to formulate an alternative theory of law. The final part of the essay will analyse how Dworkin has failed in getting an …show more content…

Hart claims that existing law must make reference to the basic rule of recognition , in basic terms, Hart is saying that a rule can only count as a law if it emanates from a certain source ( i.e. Statutes). According to Hart the main reason for having a rule of recognition is to provide a body of rules which will be publically ascertainable. This will allow us to work out what the rules are without having to depend on (usually subjective) judgments about justice or moral rights. Dworkin disputes this view of law and legal reasoning because he believes that the thesis only identifies the law by the criteria of pedigree and not by the criteria of content. In Law 's Empire Dworkin discusses the case of Riggs v Palmer to illustrate that the law does not always have to consist of rules which derive from a particular source. In Riggs, Palmer (who murdered his grandfather) claimed that he was entitled to inherit under the will of the deceased. The criminal law existed to punish Palmer for murdering his grandfather but there was no statute to invalidated his claim, the rules of testamentary

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