“What Are the Major Strengths and Weakness of Dworkin’s Theory of Law as Compared to a Positivist or Natural Law Perspective?” Discuss.

Philosophical thought provides the infrastructure that allows society to author moral laws. While morality may be the aim, other variables can cause these laws to become corrupt. The urge for power is one of many, recurring, variables that infect morality. During these times of ‘infection,’ society must contest those who oppose just laws. In order to shine a light on unjust laws, laws are bound to be broken. It is not only lawful to break unjust laws, but the duty of the people to speak up and be a voice for change. It is critical, during these times, to work towards equilibrium with the goal to change the law. Regardless of the circumstances, it is lawful to break unjust laws with the goal to make them just again.

From this, McKown presumes that lawful rights are all that exist. He says "Our eyes and our optimism should be centred around, on the main sort of rights that can be acknowledged: lawful rights." An arrangement of lawful positivism brings about a self-assertive lawful code. At the point when legitimate positivism is consolidated with advancement, Humanist lawful hypothesis becomes fanciful. Kurtz portrays the outcome "Laws provide us just with general aides for conduct;

www.iep.utm.edu/legalpos/ [April 17 2001][accessed 4th November 2012] Plato.standford.edu/entries/legal-positivism/ [2003][accessed 4th November 2012] 6 Joseph Raz The Authority Of Law: Essays On Law And Morality(1979)p. 47

To gain a better understanding of Social Policy we need to look at its definition:

Therefore he defines the word policy only, in three different ways that it is usually used. Policy used first to name when the government give some public notice on the houseless people or those who need protection and also to the undefended children from treating them in a harmful way. The second time that we come a cross the word policy is when public approved to do public assets to a program. Which involve, when the government make decision to give money on welfare and health, that process is also called policy.

Law and morality work together to guide our behavior; while law does it by punishing us if we do something wrong, morality does it through incentives. In their articles, both H.L.A Hart in “Positivism and the Separation of Law and Morals,” and Lon Fuller’s reply to professor Hart in “Positivism and Fidelity to Law,” discuss the concept of law post world war II Germany and their re-imagining of natural law as put forth by Gustav Radbruch’s theory. In this paper, I hope to show how both law and morality is needed to create just rules, more specifically drawing from the “grudge informer” case mentioned in Hart’s article. First, I will explain the dilemma of the “grudge informer” case and the contradicting theory laid down by Radbrunch’s.

A good definition of Policy is the concept of action adopted by an individual, organization, or government. Policy could come in different forms providing the nature of business. Example of policies include; Foreign policy, Immigration policy, Civil right policy, Transportation policy. Policy implementation guides and regulates actions/procedures in a business or firm.

This paper tends to review and give its remark to the comment penned by Michael McConnell on Dworkin’s Moral Reading of the Constitution. Dworkin infer that judges must decide cases on the roots on how “abstract moral principles of the constitution are best understood”, which means that judges should decide based on their own interpretation about political morality. However, this approach made many arguments since it somewhat implies that judges are grander in making decisions about moral importance.

Simply defining policy is a plan of action, is a little too simplistic, the idea of policy must be explored at a greater depth if policy analysis is to have any real impact. Stephen Bell, (1993) states that policy exists in a number of formats. This first being “policy as text”, policies are the result of a great deal of debate and compromises that

We must approach this question in consideration of the fact that the American Realist movement never purported to formulate a complete theory of law which could stand alone to tell us what law is. Instead, the basis was that official conduct in dispute settlement in all kinds of dispute was the focal point for the analysis of the law's impact, facilitating the ability to make legal predictions based on expected official action. I think that to measure the impact of this type of thinking on jurisprudential thought, we need to keep in mind how it seeks to differ from other theory.

The theory of Critical Legal Studies removes the common held standards and aspects of general legal practices and looks to establish a more rounded and equitable remedy in all concerned situations. It is perceived that the law and its makers look only to protect the interests of those that are in power and that of the overwhelming social demographic whom create the modern day structure of beliefs, prejudices and sanctions that are implemented as laws.

This shows us that the idea that Dworkin has of moral principles playing a role in judicial decision-making and interpretation is correct to a large extent, and thus the use of subjectivity is accurate and apparent.

Legal positivism offers a definition of laws as a written declaration made by government officials that have legal power to control certain aspects of society and human conduct (Himma, 2004). Legal positivist recognize all rules, regulations, principles and other forms of law that come from an authorized government body or official (Himma, 2004). But Legal positivist do not recognize laws, principles or any form of law or behavior modifier that does not come directly from an authorized government official (George, 1996). Any behavioral norms will not be recognized but legal norms are deemed as enforceable by the police power of the government (George, 1996). Legal positivism is often put in contrast with natural law because they are basically opposites.

This article discusses the conceptions of legal normativity, both moral and “strictly legal” conceptions. According to Spaak, regarding the normative force of legal justification, legal positivists can still embrace the moral idea and not be in conflict with their generally held belief in the “strictly legal” concept of law. In Torben Spaak’s opinion, there is a reason to desire legal positivism; he explains this through introducing the concept of jurisprudence. When discussing the nature of law, Spaak states, “that while the moral conception is what is likely favored on a smaller scale, the strictly legal conception is more appealing because it is broader,” (478). Spaak is arguing, his belief that “validity-based explanations come nearer to the truth,”(483) rather than belief-based explanations. He concludes that we are to prefer legal positivism over natural law theory. “That is why in this article I have been concerned with the law itself rather than our views about it.”(483)

Secondary rules are split into three different types: Rules of change (allow public/private powers to fix old rules), adjudication (remedy for inefficiency, introduces courts and law enforcement), and recognition (confers powers on people to identify law, and the unification of rules) (MacAlister, 2017). Another important concept within Hart’s theory of law is that he thinks judges have to their discretion. Hart proposes the idea of open texture in law, which states that at times, the law does not cover every situation that arises and that law may run out (MacAlister, 2017). Within this open texture, the is a clear core of certainty, where application of the law is apparent, and beyond the core, is the penumbra, the uncertainty and indeterminacy in law in which hard cases are based upon. As law branches out of this core of rules, it becomes more and more indeterminate. Due to this indeterminacy, Hart believes that since there is no clear answer written in the law, judges should have the discretion in dealing with hard cases. In the case of Riggs, since the relevant rules of law were of central concern and not penumbral, the rules, as could seen by Hart prior to his elaboration in his postscript, as clear, and the grandson should have received the inheritance since it was a valid will. Dworkin used the case of Riggs to demonstrate his concept of judges sought for the right