Harts version of legal positivism and Dworkins attack of Harts Essay

Harts version of legal positivism and Dworkins attack of Harts particular version - Essay Example Also associated with positivism is the discretion thesis, which describes the fact of judicial decision as such: when there are gaps left by legal rules (i.e., in the so-called â€Å"hard cases†), judges make new laws in the exercise of their discretion. This emphasis on the part played by judicial discretion when courts have to decide open questions of law runs through positivistic jurisprudence from John Austin to H. L. A. Hart. The positivist discretion thesis has, however, been challenged by theorists like Ronald Dworkin, Rolf Sartorius and others. This paper explores the arguments of both the positivist and non-positivist camps and discusses whether an acceptance of the positivist thesis will cause one to adopt a different outlook with regards to the judicial process in hard cases. Due to space constraints, this paper focuses only on Hart’s version of legal positivism and Dworkin’s attack of Hart’s particular version. These two theorists are chosen be cause of the prominence of the Hart/Dworkin debate. Part II of the paper summarises the ideas of Hart. Part III provides an explanation of Dworkin’s attack on legal positivism. Part IV then moves into an analysis of whether adopting a positivist outlook will make a difference as to how one views the process of adjudicating hard cases.