Ronald Dworkins Legal Theory - Essay Example

Decisions that are regulated by legal standards put in force the existing rights of individuals, and therefore judges do not, in reality, establish the law but rather ascertain it. Judges should not resolve difficult cases based on considerations which persuade legislators when they take up policies advancing collective goals. The rights of individuals are to be put into effect against considerations of the general good. Judicial discretion is flawed as a descriptive notion regarding how judges actually act in difficult cases, and as a dogmatic account of how they should behave.

These premises are pursued by Dworkin over a number of years and articulating them in successive papers. In Taking Rights Seriously (1977), Dworkin has endeavored to improve and expand on his disagreement to legal positivism and also his personal concept of the law. Modern Anglo-American legal concept has put little consideration to studies in legal theory that were undertaken during the first half of the 20th century. Before H.L.A. Hart's The Concept of Law (1961), legal theory is commonly regarded as an antiquated philosophy.

Modern-day authors consider it needless to come to grips with out-of-date theories, as it is broadly regarded that such concepts have been transcended and probed by Hart's work and those who subsequently took up his philosophies. This attitude concerning legal theories is more evident in the modern-day consideration of American legal pragmatism. Interest attending the realist movement, however, is sparse. In Taking Rights Seriously, Dworkin confers just about a page to the movement. Theodore Benditt (1978) is more considerate in his discourse of realism in his Law as Rule and Principle.

However, Benditt considers legal realism as no more than an outdated philosophy. Certainly, legal realism is viewed as containing insights. Realism, however, is regarded as having been acknowledged in the past and integrated into conventional legal concept, while the flaws have been supposedly identified and rejected. Such is the prevailing message regarding realism conveyed by contemporary work in legal theory (Summers 1982).In The Concept of Law, Hart convincingly criticises realism and his theory took up a number of the assertions connected with the realist movement, while he rejected the superfluity of realism by raising a skillfully presented notion of law as a system of rules.

One of those considered excesses of realism were the theory that the law was formed with ambiguity wherein almost any litigated issues the law is ineffective to prescribe a specific result. The conceptual approach taken by Hart was to recognise that law has an essential substance of indeterminacy but contends that such ambiguity necessarily took up a marginal area in the legal system. With Dworkin's influence, conventional legal concept subsequently became engrossed with the question of whether Hart overstated the area of legal indeterminacy.

It was presently acknowledged and rejected that the realists' concept of radical indeterminacy was relegated to the class of realist excesses.The realists focused upon the preference of competing legal rules which common-law case judges must formulate. This could appear to