In this chapter, Dworkin begins his three part, 3-tier assessment of law with his criticism of Conventionalism. He differentiated Conventionalism as falling into two different kinds, which are insufficient, in the end, to the needs of contemporary jurisprudence at the end of the 20th century leading to the start of the 21st century. Dworkin ends the chapter asserting the failure of Conventionalism.
H. L. A. Hart
Dworkin rejects pragmatism here as insufficient to the requirement of adjudication requirements and legislative principles which he sees as prevailing at the end of the twentieth century. Dworkin begins to stress that contemporary jurisprudence in his view needs to hold in high esteem the values of justice as integrity, fairness and due process. For Dworkin, "Justice is a matter of outcomes: a political decision causes injustice, however fair its procedures that produced it, when it denies people some resource, liberty, or opportunity that the best theories of justice entitle them to have.
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Poliltical ideals are presented as operating from a base of moral concerns which do influence what is legislated as law. From Wikipedia, the free encyclopedia.
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Stanford Law Books. Law's Empire. Harvard University Press. Published: 5th May Legal Realism Revisited presents a comparison between two schools of American Legal theory — American Legal Realism and Critical Legal Studies — and argues that Legal Realism still holds the most promise for understanding Published: 13th February Jeremy Bentham, the founder of utilitarianism, made a powerful impact on several major areas of thought and policy: ethics, jurisprudence, political and constitutional theory, and social and administrative reform.
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Yet from the Published: 11th November Published: 9th May This biographical and intellectual study of a key figure in the history of Islamic Jurisprudence sets the legal problems in their social and historical context Published: 1st August Published: 1st September The most outspoken critic of Hart in this connection is Fitzpatrick. Thus, as Fitzpatrick concludes, while Hart is able to depose Austin from the throne of positivism using this sociological element, he himself then eliminates that same element.
Lacey n 17 Hart n 11 Hart asserts that there is a universal moral core to law that does not derive from a higher source or deity.
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This assertion is sociological because Hart suggests that the moral core of law derives from the inherent sociological function of a legal system: facilitating the survival of human societies. In addition, this statement seems directed toward the incapacities of Austin and Kelsen's theories, criticising their inability to account for these sociological truisms due to their formalistic nature, further evidencing Hart's intention to move away from strict formalism and toward a more socially informed legal theory.
Hart maintains the positivist 'sources thesis', as the existence and content of his natural law emanating from human beings, and the 'contingent connection' thesis, as Hart does not acknowledge a necessary connection between law and morality, only that some moral content is inevitable in any legal system with the social function remains one of facilitating human survival.
Fallers, Law without Precedent University of Chicago Press, Chicago using Hart's conception of law as the union of primary and secondary rules to highlight distinctions between different societies.
Ibid Lacey n 18 Hart did not reject the uniqueness of law,83 nor did he focus on the law in action, but instead the concept of law itself, and he did not use sociological methods. Hart did seem to suggest he was aiming to make a greater move toward sociology when he insisted on the descriptive nature of his project in answering natural law critiques.
Full text of "Jurisprudence And Legal Theory"
Conclusion Hart's theory has undoubtedly been the catalyst for an unprecedented level of interdisciplinary dialogue, inspiring new theories involving jurisprudential and sociological thought. MacCormick, H. Related Papers.