Week 3 & 4 Dworkin\'s Critique of Hart\'s Theory PDF

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Week 3 - Dworkin's Critique of Hart's Theory PART 1

Lecture 1: -

Legal posiivism is the theory of law which says that the law is not necessarily connected to morality but rather a mater of social facts. Ronald Dworkin, however, argues that law is connected to moral principles not just social facts.

The Hart-Dworkin debate: -

Developed his own version of ani-posiivism.

Modern Rules 1 (MOR1): -

a counterexample(falsiies) to Harian legal posiivism.

Harian Posiivism in three theses: -

Pedigree thesis: a standard is part of the law if it is has come from the right source.

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Discreion* thesis: if a case is not covered by standards with the right pedigree, it must be decided by the use of discreion.

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Obligaion thesis: There is a legal obligaion that only arises when the standards are covered with the right pedigree.

**Discreion is linked with the idea of judicial discreion when Judges can create new law to accommodate a case that the standards have not covered. Criique of Harts Theory by Dworkin: Through MOR1 Dworkin presents a set of hard cases that do not it the three theses. Riggs v. Palmer (key case): Grandson killed his grandfather who had let his estates, however the grandfather wanted to change his will before he was killed by his grandson. The issue is that could the grandson sill inherit the estate despite being in prison and having murdered his grandfather. It was decided through the majority that he should not inherit the estate. The majority had relied on a moral principle, ‘no man may proit from his own wrongdoing’, to make decide where the case should go, if they had relied on US law the grandfather would’ve been recognised as making a valid will that the grandson would be able to inherit despite his wrongdoing. The majority in riggs argued that this was the correct outcome in law.

Week 3 - Dworkin's Critique of Hart's Theory PART 1

How do principles difer from rules?

Rules When a rule is applied to a case it conclusively applies to the case. & when two rules apply to a case then one is not valid, as they both cannot be applied. They operate in an all or nothing way. They come from the right source, the Queen?

Principles They are part of the law because they can contribute to the proper jusiicaion of a legal outcome.

Have variable weight and therefore may apply in one case but yield to a diferent principle, they do not operate in an all of nothing way. It is about which principle its the case.

Conclusion: There are some standards, legal principles, that are legal although they do not saisfy the pedigree thesis. No rule of recogniion could ever crystallise how they contribute to the jusiicaion the correct outcome & our legal rights and duies. Therefore, Harian posiivism is false...