Is Dworkin a natural lawyer? Before examining the Dworkinian perspective, it is important to define the melange and conflict that the two opposing leading theories of jurisprudence, natural law and positivism reflect.

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Ronald Dworkin’s name resounds eponymously with the realms of legal theory having been recognised universally for his pioneering scholarly work of worldwide impact consequently becoming one of the most cited legal scholars of the twentieth century. As an influential contributor to the jurisprudential movement, he has become known for advancing two main theses, “law as integrity” which advocates that the judiciary should read law with shared moral community principles. His second theory, possibly the most relative to the natural positivist debate is that of legal interpretivism. Legal interpretivism denies that law and morality are wholly independent systems, yet due to the lack of morality, it would be misleading to flatly states that examples such as Lemuel Shaw, a staunch supporter for the abolition of slavery, and his compliance with the Fugitive Slave Act was not valid law, or similarly that the Nazi edicts were not valid law. However is this theory merely a neologism of the original stance resting on the laurels of natural law, with Dworkin as a sheep in wolves clothing, acting as a parochial natural lawyer? Further within his newest text, Justice for Hedgehogs, what does his ‘revolutionary’ one system of jurisprudence indicate?

Before examining the Dworkinian perspective, it is important to define the melange and conflict that the two opposing leading theories of jurisprudence, natural law and positivism reflect. Natural law is heavily entrenched in history and is heavily associated with Aristotle and Plato, purporting a sense of human reasoning, determined by nature, as is heavily present within the United States Declaration of Independence as well as the constitution as ultimately ‘law and justice is derived from God’. Roman philosopher, Cicero identified the key components of natural law. Claiming that only ‘true laws’ are those consistent with justice, and consequently can be ascribed as law, the metaphysicality, that we should adjudicate ourselves based on a divine law, and finally that ultimately this morality is consequently unalterable, fixed within its definition. ‘[True law] does not lay its commands, or prohibitions upon good men in vain, though neither have any effect on the wicked’. In keeping with contemporary jurisprudence, neo-natural lawyers such as John Finnis have seen the development of this movement, with the metaphysical element having somewhat diluted.

Positivism on the other hand, is a concept that was heavily developed by nineteenth century legal thinkers John Austin and Jeremy Bentham, however became popularised and expanded by Herbert Hart, who Dworkin was a student under and subsequent successor of Chair of Jurisprudence at Oxford University. Hart’s positivist approach, as a skeleton can be examined three fold, with the general consensus that morality need not be in place for law to still be law. Hart’s positivism skeleton held three tenets, initially; ‘the law of a community is a set of special rules used by the community directly or indirectly for the purpose of determining which behaviour will be punished or coerced by public power’. Secondly these special rules are exhaustively extensive and consequently all eventualities should be covered, however if this is not accurate then it cannot be decided by the law, and consequently the judiciary should apply their discretion, retrieve a standard to guide him in the manufacturing of a fresh legal rule. And finally if someone has a legal obligation, there would be ‘a valid legal rule that requires him to do or forbear from doing something’.

Dworkin’s urge to be comparably different from the two traditional schools of jurisprudential thought can be seen from the outset within Law’s Empire, with the emphatic blanket phrase that provides a sense of individuality and innovativeness;

        

‘I have not tried generally to compare my views with those of other legal and political philosophers, either classical or contemporary, or to point out how far I have been influenced by or have drawn from their work.’

Dworkin believes himself to be a “special case” within the spectrum of jurisprudence, almost exploiting the gaps that the two leading schools of theory present.  However is his supposed new school of thought any different from the natural law camp? Before discussing his developing idea, it is important to discuss why he finds the other schools of thought so inapplicable.

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Dworkin, third notion of jurisprudence, legal interpretivism purports to straddle ever so slightly in between the two main notions.  Legal interpretevism, ‘argues that not only the specific rules enacted in accordance with the community’s accepted practices but also the principles that provide the best moral justification for those enacted rules’. Further suggestion that law is not a set of given data, with conventions or physical facts, but what lawyers aim to construct or obtain. This therefore supposedly separates positivism from interpretivism. It details that there is no separation between law and morality, however there are differences, which differs from ...

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