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Dworkin
Last modified: Thu Feb 23 16:37:37 2006
Ronald Dworkin is HLA Hart's successor to the Chair of
Jurisprudence at Oxford, and one of his most determined critics.
According to Dworkin, the whole of LegalPositivism
rests on an unsteady foundation - the notion that there is a rule
that can unambiguously classify rules into `law' and `non-law'.
Hart called this foundational principle the `rule of recognition';
Kelsen described a related concept, which he called the
grundnorm. Although the `rule of recognition' and the grundnorm
are conceptually different, both the serve the positivistic end
of distinguishing laws from non-laws.
Dworkin asserted that judicial practice simply did not support the
notion that law was a body of rules. He described decision-making
instead as a tension between rules and `principles'. In any given
case, rules might conflict with principles, and principles with
each other. Then the judge would have to decide the relative weight
to apply to each. For example, in the case of Riggs v Palmer (1889)
the court had to decide whether a man who had murdered his grandfather could
inherit under the grandfather's will. It was clear that the standard
rules of inheritance said that he could, indeed there was no rule
of law that said he could not. However, it was a principle
of law that courts should not allow bad guys to profit from their
own wrongdoing. This principle cannot, according to Dworkin,
be reduced to a rule. Clearly the law does not impose a rule
that bad guys cannot profit from their wrongdoing - he cites the
law on AdversePossession as an example. Similar, in general
a principle cannot be expanded to a body of rules, as the category of
affected decision is not closed. So, according to Dworkin,
positivism's central tenet is unfounded.
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