Version: v1, Published online: 2001
Retrieved April 21, 2021, from https://www.rep.routledge.com/articles/thematic/legal-positivism-inclusive-versus-exclusive/v-1
2. Dworkin’s challenge
Although contemporary positivists largely agree on how best to interpret the social thesis, the same cannot be said of the separation thesis. In response to Ronald Dworkin’s critique of Hart’s positivism (Dworkin 1978) (see Dworkin, Ronald), defenders of legal positivism have divided into two major camps: ‘inclusive legal positivism’ (sometimes referred to as ‘soft positivism’ or ‘incorporationism’) and ‘exclusive legal positivism’ (sometimes referred to as ‘hard positivism’ or ‘the sources thesis’). Defenders of the latter include Joseph Raz, Andrei Marmor and Scott Shapiro; defenders of the former include Hart, Jules Coleman, Matthew Kramer and Wil Waluchow. Among Dworkin’s principal criticisms of Hart was that the latter’s ‘model of rules’ lacks the theoretical capacity to account for the widespread use of principles within legal adjudication (Dworkin 1978). Not only are such principles widely used, Dworkin maintained, but they are treated by judges as binding law. Yet a principle is treated as binding law not because it satisfies criteria of validity contained within a conventional rule of recognition, but because (in the view of the judge who employs it), it expresses an ideal of justice, fairness or due process – an ideal which clearly cannot be established independently of substantive, and contestable, moral argument. So both the separation thesis and Hart’s rendering of the social thesis in terms of his conventional rule of recognition are incompatible with treating legal principles as binding norms. Hart must instead relegate principles to the realm of non-legal standards to which judges may appeal, but need not appeal, as they exercise their discretion to fill in gaps left by valid law (e.g., when a relevant statute is indeterminate and no other legal source can be invoked to resolve the indeterminacy). But this relegation, Dworkin urges, is something to be avoided. We must therefore reject Hart’s model of rules – and the separation and social theses – in favour of Dworkin’s interpretive theory of law, within which legality is partly determined by moral principles which place legal practices in their best moral light (Dworkin 1978, 1986).
Waluchow, Wilfrid. Dworkin’s challenge. Legal positivism, inclusive versus exclusive, 2001, doi:10.4324/9780415249126-T064-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/legal-positivism-inclusive-versus-exclusive/v-1/sections/dworkins-challenge.
Copyright © 1998-2021 Routledge.