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. ...Show more