Category:System of Rights
Law, Principles, and Rights
Currently one of the most dominant figures in jurisprudence and a great influential legal philosopher, Ronald Dworkin has contested almost every aspect of legal positivist theory rejecting much of H.L.A. Hart’s work in the area. Dworkin begins his criticism of legal positivism by outlining three foundation propositions that he contests. The first proposition Dworkin disagrees with concerns the positivist belief that law can be understood as a system of rules.(pg. 235) Dworkin doesn't believe that positivism can explain the normativity of law. (235)The third proposition that he contests is that which Hart believes judges exercise discretion when there is no legal rule to apply.(235) For Dworkin the law contains more than rules, hence his theory of the role of principles in the law. The role of principles in law undermines what Dworkin believes to be the positivist position. Although positivists don’t completely deny the existence of principles, they dismiss their importance in relation to the hard cases in which they feel judges should exercise their discretion.
When case law is irrelevant to the case at hand, H.L.A. Hart believes that this is where judges encounter hard cases where the judges step in to fill in the gaps by creating new laws to apply to the case. For H.L.A. Hart, judicial interpretation at this stage is guided by morality. Dworkin rejects this view instead believing that principles have a quality of wight and importance when there is no rule to address the reasoning one should take in relation to the case. When these hard cases come to light, principles are extremely important in aiding to create the new rules. The process that the judges encounter when considering and weighing principles through their legal reasoning are what produce the new rules according to Dworkin. Principles help regulate judges discretion when decided these cases that do not currently have any rules that are applicable.
Pages in category "System of Rights"
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