Ronaldo Dworkin has based his theory of law on his ongoing critique of positivist theory of law especially the theory developed by Hart in “The concept of law”,as Dworkin believed that Hart’s theory was the “ruling theory of law”.Dworkin’s theory has evolved in the course of his response to critique of his work.From the 1960’s onward,this evolution of the anti positivist theory can arguably be said to have occurred in three phases.Although it is possibly to look at Dworkin’s theory in various ways.Three phases of development in his theory evolved and changed while enriching his interpretive theory all the time focusing on his developing critique on Hart’s work.
RONALD DWORKIN’S THEORY OF LAW :
RONALD Dworkin was undoubtedly one of the foremost legal thinker who moved away from the influence of legal positivism which continued to be dominated even in its modified version in H.L.A Hart’s legal philosophy. Dworkin extended support to legal philosophy of Kant’s principle of morality and ethics. Dworkin writing and in his major work Justices for Hedgrhogs (2011) he places human dignity as a hall mark of his legal philosophy . He mainly focused on dignity,responsibility and free will in relation to freedom of speech,right to privacy and human rights . Dworkin distinguished dignity from morality in a very distinct manner emphasing that morality is other regarding i.e.object dignity is selfregarding i.e. subjective.
DWORKIN INTRODUCED TWO PRINCIPLES FOR LIVING WELL NAMELY :
1.Selfrespect which requires to take one’s life seriously
2.Autonomy that requires taking responsible decisions about oneself for successful in life.
ACCORDING TO DWORKIN, THESE TWO PRINCIPLES OF DIGNITY DO TRIPLE DUTY :
• First as a matter of personal ethics they provide guidance about what we should do in order to live well .
•Second, They elucidate the rights that individuals have against their political community.
• And Third,They account for the moral duties we owe to others.
The principal of dignity that Dworkin identifies might play a valuable role in these first two domains.Even when these principle do plausibly entail more duties of a particular scope,that scope is often significantly weaker, or in some case significantly stronger,than many non-consequentialists would endorse.Through out his writings on law and legal philosophy, Dworkin emphasized on utilization of law and legal system for ensuring human dignity. Which according to him,is the foundation of all rights and liberties of people in all societies for ensuring peace and progress of every Indian in society.It is clear that Dworkin,Hart’s fail to take into account concept beyond rules and thus his “Postivism is a model of and for a system of rules,and its central notion of a single fundamental test for law….Forces us to miss the role of … Standard which are not rules ; In other words by limiting the scope of law to only rules that can identified by the rule of recognition, Hart fails to consider the role of existing body of customs(for example the royal assent and other prerogative power in the British legal system) in law as well as concept such as “principle ” that can influence judicial decision making while rejecting such a proposition based on the concept that the fact of law is such that its validity must not be derived from the justice it can deliver or the injustice. It is therefore possible to observe that Dworkin’s place in jurisprudence is one where he is neither a natural lawyer nor is it possible to say he is a legal positivist as he theoretically rejects some of the most common and basic views of natural law theories while also being very critical about the positivist.His theory thus provides students of jurisprudence a theoretical forum for a middle ground between the two theories.
In conclusion,over the year,Dworkin’s initial critique of positivism has been modified (almost beyond recognition) and has changed a great deal.However,the greatest changes has occurred due to his adoption of the “utilization of law” ensuring human dignity as this phase of the theory has proved to be completely different from the first two phases in that Dworkin has inadvertently accepted a great deal of positivism in his critique of positivism,thus (in part) defying the purpose of the critique.
BY MANVI SINGH