Abstract
The paper discusses the Anglo-American philosophy of law of the 20th century, more specifically the philosophy of law of Ronald Myles Dworkin and his criticism of the legal positivism of Herbert Lionel Adolphus Hart. The author presents the history of the criticism of legal positivism in Ronald Dworkin’s philosophy of law and distinguishes historical stages. The subject of the study is the critique of legal positivism but not the Hart-Dworkin debate itself, well known in Western philosophy of law. The reason is that the discussion was conducted between Dworkin and Hart’s supporters but not between Dworkin and Hart by himself. The latter responded to the criticism only after twenty seven years. The article explains why Dworkin chose for his criticism Herbert Hart’s version of legal positivism. This is due to the fact that Dworkin highly appreciated Hart’s positivist theory of law and characterized it as the “most clear.” The article presents the methodological foundations of criticism of Hart’s legal positivism in Dworkin’s philosophy of law. It reveals a methodological divergence between the two legal theories, which directly affects the understanding of the concept of law and its content. Therefore, we can assume that the legal theories of Hart and Dworkin are two competing models of law: Dworkin’s model considers law as a set of rules and principles and Hart’s model acknowledges only rules and court decisions as a source of law. The article also presents the key principles of positivism criticized by Dworkin. These principles, firstly, interpret law as a set of legal rules determined through a special legal criterion, secondly, provide the judge with an opportunity to make a decision “at his own discretion” in a situation not regulated by law, and, thirdly, recognize only legal rights and obligations enshrined in legal regulations. It is important to note that in this article the author describes criticism as an independent phenomenon of legal philosophy with a particular focus on the history and foundations of this phenomenon.
Keywords No keywords specified (fix it)
Categories No categories specified
(categorize this paper)
DOI 10.30727/0235-1188-2019-62-7-124-142
Options
Edit this record
Mark as duplicate
Export citation
Find it on Scholar
Request removal from index
Revision history

Download options

PhilArchive copy


Upload a copy of this paper     Check publisher's policy     Papers currently archived: 72,564
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library

References found in this work BETA

The Concept of Law.Hla Hart - 1961 - Oxford University Press.
The Concept of Law.Stuart M. Brown - 1963 - Philosophical Review 72 (2):250.
Taking Rights Seriously.Thomas D. Perry - 1977 - Ethics 88 (1):80-86.
Law's Empire.Ken Kress - 1986 - Ethics 97 (4):834-860.
A Matter of Principle.Ronald Dworkin - 1987 - Ethics 97 (2):481-483.

View all 15 references / Add more references

Citations of this work BETA

No citations found.

Add more citations

Similar books and articles

Between Natural Law and Legal Positivism: Dworkin and Hegel on Legal Theory.Thom Brooks - 2007 - Georgia State University Law Review 23 (3):513-60.
The "Hart-Dworkin" Debate : A Short Guide for the Perplexed.Scott J. Shapiro - 2007 - In Arthur Ripstein (ed.), Ronald Dworkin. Cambridge University Press. pp. 22--49.
A Positivist Account of Legal Principles.Kenneth Einar Himma - 2001 - Dissertation, University of Washington
Hart, Dworkin, Judges, and New Law.Robert J. Yanal - 1985 - The Monist 68 (3):388-402.
Human Rights and the Debate on Legal Positivism.Delamar José Volpato Dutra - 2015 - Dialogue and Universalism 25 (1):264-273.
Legal Reasoning and Legal Theory.Neil MacCormick (ed.) - 1978 - Oxford University Press.
Hart's Postscript and the Character of Political Philosophy.Ronald Dworkin - 2004 - Oxford Journal of Legal Studies 24 (1):1-37.
The Concept of Law.Hla Hart - 1961 - Oxford University Press.

Analytics

Added to PP index
2019-10-11

Total views
15 ( #703,566 of 2,533,482 )

Recent downloads (6 months)
1 ( #391,480 of 2,533,482 )

How can I increase my downloads?

Downloads

My notes