Legal philosophy final
How does Dworkin describe the "skeleton" of positivism? (17) - ANS-The law of
community is a set of special rules used by the community directly or indirectly for the
purpose of determining which behavior will be punished or coerced by the public power
The set of valid legal rules is exhaustive of the law so that if someones case is not
clearly covered by such a rule then that case connot be decided by applying the law;
must be decided by some official who exercises his discretion
To say that someone has a legal obligation is to say that his case falls under a valid
legal rule that requires him to do or to 4 bear from doing something. In the absence of
such a valid legal rule there is no legal obligation it follows that when the judge decides
an issue by exercising his discretion he is not enforcing a legal right as to that issue
Dworkins argument - ANS-Positivism is not good because it allows us to miss important
roles of standards that are not rules
What according to Dworkin is the difference between rules and principles? - ANS-Rules
are applicable in All or Nothing fashion
Principles are that no man May profit from his own wrong but we do not mean that the
law never permits a man to profit from the wrongs he commits
What are the three ways that a positivist may suggest when s/he is confronted by the
existence of legal principles? (35-36)DWORKIN - ANS-A positivist may argue that
principles cannot be binding or obligatory
A positivist may argue that even though some principles are binding in the sense that
the judge must take them into account, they can't determine a particular result.
A positivist may argue that principles cant count as a law because their authority, and
even more so their weight is congenitally controversial.
Why does Dworkin think that the rule of recognition cannot cover the operation of
principles (39-43)? - ANS-Because no tests of pedigree can be formulated
Customary law cant be made to serve without abandoning the tenet altogether
2. How is Dworkin's theory of law "interpretive" and evaluative? (240-241) - ANS-since it
consists in the identification of the principles which both best 'fit' or cohere with the
, settled law and legal practices of a legal system and also provide the best moral
justification for them, thus showing the law 'in its best light'
5. Why does Dworkin say that Hart can neither have the rule of recognition or
discretion? (259) - ANS-that the law of a system is identified by criteria provided by a
rule of recognition accepted in the practice of the courts, or that the courts exercise a
genuine though interstitial law-making power or discretion in those cases where the
existing explicit law fails to dictate a decision, or that there is no important necessary or
conceptual connection between law and morality. These doctrines are not only central
to my theory of law but are often taken to constitute the core of modern legal positivism;
so their abandonment would be a matter of some moment.
6. What are the two features that distinguish principles from rules? (260) HART -
ANS-1) a matter of degree: Principles are relatively to rules broad general or unspecific
in the sense that often what would be regarded as a number of distinct rules can be
exhibited as the exemplifications or instantiations of a single principle
2) Principles, because they refer more or less explicitly to some purpose goal
entitlement or value, are regarded from some point of view as desirable to maintain or to
adhere to, and so not only as providing an explanation or rationale of the rules which
exemplify them but at least contributing to their justification
6. What are the facts of Riggs v. Palmer? (23) - ANS-How to decide whether in are
named in the will of his grandfather could inherit under that will even though he had
murdered his grandfather to do so
No one shall be permitted to profit by his own fraud or to take advantage of his own
wrong or to found any claim upon his own and Equity or to acquire property of his own
crime
Murderer did not recieve his inheritance
8. How does Riggs v. Palmer actually undermine Dworkin's point (262)? - ANS-It is an
example of a principal winning in competition with a rule but the existence of such
competition surely shows that rules do not have an all-or-nothing character since they
are liable to be brought into such conflict with principles which may outweigh them
10. Why does Hart say that Dworkin needs his own rule of recognition? (266) -
ANS-The legal rules and practices which constitute the starting points for the
interpretative task of identifying underlying or implicit legal principles constitute
pre-interpretive law and much that Dworkin says about it appears to endorse The View
How does Dworkin describe the "skeleton" of positivism? (17) - ANS-The law of
community is a set of special rules used by the community directly or indirectly for the
purpose of determining which behavior will be punished or coerced by the public power
The set of valid legal rules is exhaustive of the law so that if someones case is not
clearly covered by such a rule then that case connot be decided by applying the law;
must be decided by some official who exercises his discretion
To say that someone has a legal obligation is to say that his case falls under a valid
legal rule that requires him to do or to 4 bear from doing something. In the absence of
such a valid legal rule there is no legal obligation it follows that when the judge decides
an issue by exercising his discretion he is not enforcing a legal right as to that issue
Dworkins argument - ANS-Positivism is not good because it allows us to miss important
roles of standards that are not rules
What according to Dworkin is the difference between rules and principles? - ANS-Rules
are applicable in All or Nothing fashion
Principles are that no man May profit from his own wrong but we do not mean that the
law never permits a man to profit from the wrongs he commits
What are the three ways that a positivist may suggest when s/he is confronted by the
existence of legal principles? (35-36)DWORKIN - ANS-A positivist may argue that
principles cannot be binding or obligatory
A positivist may argue that even though some principles are binding in the sense that
the judge must take them into account, they can't determine a particular result.
A positivist may argue that principles cant count as a law because their authority, and
even more so their weight is congenitally controversial.
Why does Dworkin think that the rule of recognition cannot cover the operation of
principles (39-43)? - ANS-Because no tests of pedigree can be formulated
Customary law cant be made to serve without abandoning the tenet altogether
2. How is Dworkin's theory of law "interpretive" and evaluative? (240-241) - ANS-since it
consists in the identification of the principles which both best 'fit' or cohere with the
, settled law and legal practices of a legal system and also provide the best moral
justification for them, thus showing the law 'in its best light'
5. Why does Dworkin say that Hart can neither have the rule of recognition or
discretion? (259) - ANS-that the law of a system is identified by criteria provided by a
rule of recognition accepted in the practice of the courts, or that the courts exercise a
genuine though interstitial law-making power or discretion in those cases where the
existing explicit law fails to dictate a decision, or that there is no important necessary or
conceptual connection between law and morality. These doctrines are not only central
to my theory of law but are often taken to constitute the core of modern legal positivism;
so their abandonment would be a matter of some moment.
6. What are the two features that distinguish principles from rules? (260) HART -
ANS-1) a matter of degree: Principles are relatively to rules broad general or unspecific
in the sense that often what would be regarded as a number of distinct rules can be
exhibited as the exemplifications or instantiations of a single principle
2) Principles, because they refer more or less explicitly to some purpose goal
entitlement or value, are regarded from some point of view as desirable to maintain or to
adhere to, and so not only as providing an explanation or rationale of the rules which
exemplify them but at least contributing to their justification
6. What are the facts of Riggs v. Palmer? (23) - ANS-How to decide whether in are
named in the will of his grandfather could inherit under that will even though he had
murdered his grandfather to do so
No one shall be permitted to profit by his own fraud or to take advantage of his own
wrong or to found any claim upon his own and Equity or to acquire property of his own
crime
Murderer did not recieve his inheritance
8. How does Riggs v. Palmer actually undermine Dworkin's point (262)? - ANS-It is an
example of a principal winning in competition with a rule but the existence of such
competition surely shows that rules do not have an all-or-nothing character since they
are liable to be brought into such conflict with principles which may outweigh them
10. Why does Hart say that Dworkin needs his own rule of recognition? (266) -
ANS-The legal rules and practices which constitute the starting points for the
interpretative task of identifying underlying or implicit legal principles constitute
pre-interpretive law and much that Dworkin says about it appears to endorse The View
