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Hard Cases and Legal Validity: Hart's Insight


Sari Kisilevsky


City University of New York (CUNY), Queens College

June 25, 2012


Abstract:     
I propose a positivist solution to Dworkin’s problem of hard cases, as exemplified by Riggs v. Palmer. Hard cases are cases in which the posited law points to a clear outcome, but the question of what the law requires remains open. Parties to the positivism/natural law debate take these to illustrate the possibility of legally binding moral considerations. I argue that, despite appearance, hard cases like Riggs v. Palmer do not raise the problem of morality in law at all. Rather, the majority’s judgment in Riggs can be explained by appeal to law’s systemic nature, as consisting in an organized system of primary and secondary rules that govern the actions of independent actors. Dworkin is right to hold that the basic structure of the posited law makes it vulnerable to hard cases. However, I argue, those very features that make it vulnerable to such cases also give the posited law the resources to resolve them. No further appeal to morality is necessary.

Number of Pages in PDF File: 32

Keywords: Legal Positivism, Natural Law, Rule of Law, Hart-Dworkin Debate, H.L.A. Hart, Ronald Dworkin, jurisprudence, nature of law

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Date posted: June 25, 2012  

Suggested Citation

Kisilevsky, Sari, Hard Cases and Legal Validity: Hart's Insight (June 25, 2012). Available at SSRN: http://ssrn.com/abstract=2091335 or http://dx.doi.org/10.2139/ssrn.2091335

Contact Information

Sari Kisilevsky (Contact Author)
City University of New York (CUNY), Queens College ( email )
Flushing, NY 11367
United States
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