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Ronald Dworkins Legal Theory - Essay Example
Ronald Dworkin's legal theory has emerged from his confrontation on what he depicts as the ruling theory of legal positivism. For Dworkin, positivism is a blend of related assertions such that: law is theoretically separate from morality; in difficult cases wherein the legal rules are ambiguous, judges exercise prudence by applying extra-legal considerations; more frequently extra-legal matters are utilitarian in nature given that they try to advance the general good instead of individual rights…
Decisions that are regulated by legal standards put in force the existing rights of individuals, and therefore judges do not, in reality, establish the law but rather ascertain it.
Judges should not resolve difficult cases based on considerations which persuade legislators when they take up policies advancing collective goals. The rights of individuals are to be put into effect against considerations of the general good. Judicial discretion is flawed as a descriptive notion regarding how judges actually act in difficult cases, and as a dogmatic account of how they should behave. These premises are pursued by Dworkin over a number of years and articulating them in successive papers. In Taking Rights Seriously (1977), Dworkin has endeavored to improve and expand on his disagreement to legal positivism and also his personal concept of the law.
Modern Anglo-American legal concept has put little consideration to studies in legal theory that were undertaken during the first half of the 20th century. Before H.L.A. Hart's The Concept of Law (1961), legal theory is commonly regarded as an antiquated philosophy. ...