Dworkin and legal positivists seek to provide guidelines for impartial Essay

Dworkin and legal positivists seek to provide guidelines for impartial judicial decision making, but do so in different ways and with different results. Discu - Essay Example non-Dworkian sense implies that the legal validity of a given norm, and hence whether it forms part of the law of that system, depends on its sources, not its merits. This paper discusses the jurisprudential basis of impartiality in judicial decision-making based on the theory of Dworkin and juxtaposing the same with another contemporaneous legal positivist, Professor H.L.A Hart. Dworkin, in his paper ‘The Model of Rules’, identifies and attributes to Hart a four-fold doctrine:2 (1) that law consists of ‘rules’ (understood as legal standards that differ from what Dworkin calls ‘principles’); (2) that legal rules are identified via a ‘rule of recognition’; (3) that where a rule does not control a case, judges have discretion; and (4) that in those cases where judges have discretion, neither party has a pre-existing legal right to prevail. Dworkin rejects the merit of all these four doctrines, but for the purposes of the present essay we shall limit our discussion to the last two of these four doctrines identified by Dworkin. The purpose of this essay in so far as it attempts to juxtapose Dworkin’s theory with Hart’s, shall be better served if prefaced by a brief survey of how Hart perceived the impact of judicial discretion on law-making. The variance in the two approach is best illustrated by taking as an example the ‘hard cases’ to be decided by a court of law- that is, cases which have a uniquely singular problem which has not be covered by the text of the relevant statute or which it is abundantly clear has never come within the contemplation of the legislature. Hart has consistently taken the view that, as a conceptual matter, what constitutes a question of law as ‘hard’ is that the pre-existing law is substantively indeterminate with respect to that question and is insufficient to determine a uniquely correct answer.3 Hard cases, therefore, arise because there is a gap or vacuum in the coverage of pre-existing law. Since, in such