The Soundest Theory of Law C. L. Ten



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The Soundest Theory of Law
C. L. TEN
Ronald Dworkin's important theory of law has developed out

of his attack on what he calls 'the ruling theory' of legal positivism.

Positivism is for him a combination of connected claims: that

law is a system of explicitly adopted or enacted rules; that law

and morality are conceptually separate; that in hard cases when

there are no clear legal rules, judges exercise discretion by ap-

pealing to extra-legal considerations; that these extra-legal

considerations are often utilitarian in character in that they seek

to promote the general welfare rather than individual rights.

Dworkin rejects each one of these claims. He argues that law

consists of principles as well as rules. These principles are moral

principles which confer rights on individuals. In hard cases where

rules do not dictate a result, a judge is still bound by legal prin-

ciples and does not therefore have discretion. Decisions governed

by legal principles enforce the existing rights of individuals, and

hence judges do not create the law: they discover it. Judges

should not decide hard cases on the basis of those considerations

which influence legislators when they pursue policies promoting

collective goals. Individual rights are to be enforced against

considerations of the general welfare. Judicial discretion is

mistaken both as a descriptive thesis about how judges in fact

act in hard cases, and as a prescriptive account of how they ought

to behave. Dworkin has pursued these themes over many years,

and in successive papers, now collected in a book, Taking Rights



Seriously, he has sought to refine and elaborate on both his

opposition to legal positivism as well as his own theory of law.1

He has also applied his theory to topical issues with results that

are recognisably liberal in character, although it is a form of

liberalism without the usual utilitarian underpinnings.

The focus of discussion has been on Dworkin's denial of

judicial discretion, for this is the central issue of legal theory in

the United States, where jurisprudence thrives more than any-

where else in the world. The American legal system revolves
I Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 19m.




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