Dworkin advances his working theory of law asintegrity. Basically, he personalizes the law where he says that judges? decisionsare an exercise in constructive interpretation, which purports to interpret thelaw as an integral whole, in the best moral light. Dworkin achieved a way inproviding another way of thinking to the positivist separation thesis by saying”a concrete exposition of the unity of law and morality” (52) However, heagrees with portions of the positivism and believes it has defects.
Many believeshis theory is similar to natural law.”Thecentrepiece of Dworkin’s rejection of the positivist concept of law is hisdistinction between what he identifies as legal rules and legal standards.” (53)On Hart’s explanation, the legal rules of law are the ones that can be followedback to the original rule that approves the whole structure of law. Another of Dworkin’smain point is to show that principle always have only one right answer to anyhard case, and that answer is ‘right’ morally and legally.He also thought ifthere was more than one result thats legally possible, then within the lawsthere are holes. And those holes should be covered by the judges.
He or shedetermines what the right answer in this case. One of the criticism was from Mackie. Mackie’s criticism involves hisrights thesis. “Dworkin assumes a single scale upon which opposingrights-claims can be measured against each other, with one right outweighinganother. The idea that a unique right answer can objectively emerge from ‘toosimple a metric of commensurability on a linear scale’ is rejected by Mackie onthe grounds that the merits of opposing claims cannot be measured in thismanner.” (67) 2a: In what ways are legal positivism and legal realismsimilar? In what ways are they different? (Give two examples of each.) Positivism was not well-known until JeremyBentham, the founder of utilitarianism. In philosophy positivism means all information”limited to what can be observed and tested; philosophically it is rooted inthe empiricist interpretation of the scientific revolution”.
(7) Positivism defineslaw that is actually laid down by separating “is” from the law, which is”ought” to be. Positivism gives the concept of sovereign who can makelaw. Laws have no relation with morality, reason or justice to gain validity. Realismmeans there is a difference between how law is taught and how it is practicedin the courts. Legal realism was introduced in the US in the 1890’s all the wayto 1930’s. Realism is more similar to positivism than natural law, but its viewpointwas unlike from both.
An alternative theory to both positivism andnaturalism is legal realism. Legal realists concentrate on law in actionrather than with law in books. It’s said that laws is what lawyers andjudges do when “practicing law”. Because the judge can independently interpretthe law.
