Dworkin's Theory

2218 Words9 Pages
“What are the major strengths and weakness of Dworkin’s theory of law as compared to a positivist or natural law perspective? Discuss I. Introduction Ronald Dworkin is an influential modern theorist who has developed a significantly different theory of law which has challenged the positivist theories. There are several strengths and weaknesses in Dworkin’s theory, especially when compared to a positivist’s perspective. Dworkin’s theory is an attempt to bridge the inadequacies and anomalies present in the positivist approach as espoused by theorists like Herbert Hart. The paper will present an overview of Dworkin’s theory followed by a summary of the main elements of Hart. In its second part, the paper will discuss the differences between the main propositions of Dworkin and Hart with a particular focus on Dworkin’s constructive interpretation and his challenge of Hart’s views on judicial discretion. By way of conclusion, the paper will argue that Dworkin’s attempt to bridge the gap of judicial discretion that Hart misses is a wise and intelligent way of developing a legal theory. II. Overview of Dworkin's Theory Dworkin has become an influential legal theorist of this generation, and he has developed a, “sophisticated alternative to legal positivism.”1 Dworkin’s theory is an “interpretive theory of law,”2 primarily asking the quintessential question of whether there is truth in interpretation and judgment.3 Essentially humans understand that disagreement is inherent in many aspects of life, especially when looking at provisions within the law. It seems that disagreements in interpretation are endless and the fact that a judge cannot say anything other than, "he sees it this way, or he sees it differently," does not sit well within legal argument according to Dworkin. According to Dworkin, the first principle of his theory
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