Law, Interpretation and Authority (original) (raw)
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THE DIALOGICS IN HART-DWORKIN DEBATE ON THE CONCEPT OF LAW
International Journal of Comparative Law and Legal Philosophy, 2020
One of the critical problems in philosophy of law for two decades is the clash between Hart's views and those of his former student and successor as Professor of Jurisprudence at Oxford University, Ronald Dworkin. Hart is a positivist whose account of law, or 'what the law is' is always potentially different from 'what the law ought to be'. Other positivists include Jeremy Bentham, John Austin, Hans Kelsen, Joseph Raz, and a host of others. In his Essays in Jurisprudence and Philosophy, Hart brings out a number of ways the expression 'legal positivism' has been used. He discerns five tenets or contentions 'legal positivism' has assumed in contemporary jurisprudence. With this, he arrives at the conclusion that law is basically a system of rule; a union of primary and secondary rules. The opposite contention of natural lawyers appeared easily dismissed by reference to professional practice. When lawyers give information about the law, or apply the law, they often complain about its contents; they show no readiness to trace its validity back to a moral basis. If asked to justify an assertion about the law, they cite authority, not reason; precedents and statutes, not treatises about justice or the good life. Dworkin does not challenge the conventional positivist assumptions about the decision of legal questions in clear cases by the application of valid rules. In 'Taking Rights Seriously', Dworkin arrives at three important conclusions about the nature of law. First, law is not solely comprised of rules. The logic of adjudication in 'hard cases'-that is, cases about which informed people can reasonably disagree-leads him to the conviction that rules are part of the law. But in hard cases, he argues, judges are guided to their decisions by standards which are not rules. Secondly, no line can be drawn between law and morality because the non-rule standards which judges employ in order to determine 'what the law is' in hard cases include principles embedded in the community's morality. Thirdly, judges do not legislate because reasons never run out and there is never a middle ground. He insists that there must be a right answer to virtually any questions of law. It is clear Dworkin has developed a distinctive system that transcends, and bridges the gap between naturalism and legal positivism; thereby integrating law into a branch of political morality. How then are we to adjudicate between Hart and Dworkin on these issues? It is the position of this work that principles are not propositions describing rights as Dworkin upholds. Rather, principles are relatively general norms which are conceived of as 'rationalizing' rules or sets of rules'. A legal principle, in the view of the person putting it forward as a principle, explains and justifies existing legal rules. It authorizes any new ruling which it would also explain and justify. This study examines Hart-Dworkin debate and draws a response.
L. Ramírez Ludeña and J.M. Vilajosana, Legal Conventionalism, Springer, Cham, 2019
Dworkin famously argued that Hart’s practice theory is not able to give an account of legal duties and therefore that it is a bad theory of law. Conventions were then proposed as a substitute for the practice theory capable of showing the existence of legal duties. In this text Arena examines two different conventionalist strategies that have been proposed as answers to Dworkin’s criticisms—Marmor’s constitutive conventionalism and Postema’s constructive conventionalism. Arena claims that both proposals remain captive of Dworkin’s premises and that this has led them to overstate the cooperative dimension of legal practice. Dworkin’s argument is based on the premise that without explaining the existence of legal duties a theory would be unable to explain some essential features of law: judges’ statements of duty and disagreements. Arena argues against this premise by claiming, first, that judges’ statements of duty are just a projection of their attitudes both on the action considered mandatory or forbidden and on the conventional interpretative method they use to ground that statement. Second, that this projectivist perspective may account for judges’ talk in terms of truth value and for their disagreements. On the one hand, by following a quasi-realist schema, Arena claims that judges must earn their right to talk about truth and, on the other hand, he claims that judges’ disagreements are genuine disagreements in attitudes.
The Controversy About the Essence of Law: A Dispute Between Hart and Dworkin
Indonesia Law Review, 2012
Does.the.law.merely.contain.rules?.Or.does.it.also.include.morality?.The.debate. between. H.L.A.. Hart. and. Ronald. Dworkin. revolved. around. this. very. issue.. Hart.considered.the.law.is.nothing.more.than.a.set.of.rules.whereas.Dworkin. believed.that.the.law.contains.not.only.the.rules.but.also.principles.which.are. morality.and.justice..This.paper.is.trying.to.explore.the.issue.of.the.relationship. of.law.and.morality.in.the.context.of.this.debate.between.Hart.and.Dworkin..The. debate.itself.is.very.significant.in.the.study.of.law..Following.their.arguments. we.can.learn.a.lot.about.how.the.law.should.be.understood.and.practiced..By. listening.to.their.whole.debate.we.will.also.know.that.Hart's.positivistic.thought. and. Dworkin's. tendency. towards. the. natural. law. are. not. mutually. negating.. Hart.Positivism.is.not.anti-morality..It.is.precisely.through.positivism.which.he. defended.Hart.aims.at.safeguarding.the.law.by.morality;.whereas.Dworkin.has. shown.what.had.previously.forgotten.by.the.legal.positivistic.way.of.thinking,. that.is.moral.principles.are.integral.parts.of.the.law.
MEXICAN LAW REVIEW, 2022
This note is based on the legal non-positivist model of Ronald Dworkin, developed in important works such as Taking rights seriously, Law’s Empire, and Freedom’s Law —the moral reading of the American Constitution—. Furthermore, the consultation of the work of this jurist is taken into ac- count, because in it a theory of justice is developed —Justice for Hedgehogs—. This note is complemented with the reference of other authors to confront this model with the legal positivism view of the Twentieth Century, in particular with the positivist legal model of H.L.A. Hart. The main purpose is to show extracts that are considered significant to the theoretical principialist Dworkinian model of law, in order to understand and distinguish this cognitive-moral non-positivist type of model. Therefore, an emphasis on fundamental rights and the exposure of the premise regarding the only correct solution, or the only answer to legal controversies submitted to the analysis of the judges in difficult cases —the so-called hard cases— is taken into account.
Dworkin’s Interpretivism and the Pragmatics of Legal Disputes
One of Ronald Dworkin’s most distinctive claims in legal philosophy is that LAW is an interpretative concept. According to Dworkin, interpretative concepts are a special kind of concept—a concept whose correct application depends not on fixed criteria or an instance-identifying decision procedure, but rather on the normative or evaluative facts that best justify the total set of practices in which that concept is used. The main argument that Dworkin gives for interpretivism about a given concept – LAW, among many others – is a disagreement-based argument. In this paper, we argue that Dworkin’s disagreement-based argument relies on a mistaken premise about the nature of disagreement. We propose an alternative analysis of the type of dispute—what we call “Seeming Variation Cases”—that Dworkin uses to motivate the idea of interpretative concepts. We observe that genuine disagreements can be expressed via a range of linguistic mechanisms, many of which do not require that speakers literally assert and deny one and the same proposition. We focus in particular on what we call “metalinguistic negotiations,” disputes in which speakers do not express the same concepts by those words, but rather negotiate how words should be used and thereby negotiate which of a range of competing concepts should be used in that context. Metalinguistic negotiations reflect disagreements that are “genuine” in any plausible sense of the word and they provide the basis for a promising alternative to Dworkin’s interpretivist analysis of Seeming Variation Cases. We claim that this view has quite general theoretical advantages over Dworkin’s interpretivism about Seeming Variation Cases and of the relevant class of legal disputes in particular. This paper thus has two interlocking goals in legal philosophy: 1) to undermine one of Dworkin’s core arguments for interpretivism and 2) provide the foundations for a non-interpretivist alternative account of an important class of legal disputes.
Judges Taken Too Seriously: Professor Dworkin's Views on Jurisprudence
Ratio Juris, 1988
Abstract. The author analyses Ronald Dworkin's ideas about legal theory and legal philosophy, with particular regard to metatheoretical and methodological problems. He focuses on the questions of the function and the object of jurisprudence, and on those of the content and method of argumentation of jurisprudence. According to the author, Dworkin's theory is a normative theory, an ideology referred to the judicial practice. Although judges really make law, one can deny that they do. This strategy is the one judges traditionally employ when they say that they are merely applying the law-giver's intentions or fundamental principles that existed long before the case they have to decide. It is that discourse, not rights, that Dworkin takes seriously.
Philosophy of Law as an Integral Part of Philosophy: Essays on the Jurisprudence of Gerald J Postema, 2020
In my view, Postema’s argument for the future of legal theory runs in the right direction of advocating a systematic approach to law in connection with other social institutions and phenomena, and arguing for a concept of law based on typical features of law rather than its essential properties. I will argue, however, that such a kind of methodology is not in its epistemological essence different from Dworkin’s methodology of jurisprudence. I will make a case for the conclusion that the main difference between the two approaches consists in the domain of language which is privileged by each author: whereas Dworkin develops a doctrinal concept of law, Postema sheds light on a sociological concept of law. First, I will reconstruct the dispute of method (Methodenstreit) between Hart and Dworkin in analytical jurisprudence as a dispute between descriptive and normative jurisprudence. Second, I will explore a possible understanding of Postema’s methodology for legal theory in connection with Schauer’s project as stated in his book “The Force of Law”. Finally, I will explain how it is possible to understand Postema’s approach in the same direction of Dworkin’s project for analytical legal theory.
2012
The debates about the interrelations between reason and law have undergone a change after the eighteenth century. References to the recta ratio of jusnaturalistic tradition have not disappeared, but other comprehensions of legal reason have developed. The European debate over legal positivist science has contributed to this in a manifestation of the rationality of law. This transformation may be considered the basis for the development of true “legal technologies” throughout the twentieth century. On the other hand, in the context of theories of positive law which have taken the relation between ethics and legal reason as a problem, the formation of discourses on coercion (Austin and Holmes), on validity (Kelsen and Hart) and on justification (Alexy and Dworkin) has also contributed to the emergence of new models of legal rationality. In this paper, it is highlighted that the construction of these models is linked to the “points of view” which theories have proposed as legitimate fo...
DWORKIN'S HARD CASES: LEGAL INTERPRETIVISM
Lakmal Deegalla, 2023
Dworkin in the legal system there are two main things 01. Principle 02. Policies principle in the sense, some reference made by judicial precedent or norms. such as ' no man shall profit from his own wrong'. whereas, policies in the sense, 'a goal to be reached, generally an improvement in some economics or social feature of the community'