The Hand of Midas: When Concepts Turn Legal or Deflating the Hart-Dworkin Debate

31 Pages Posted: 17 Apr 2008 Last revised: 14 Feb 2014

See all articles by Ralf Poscher

Ralf Poscher

Max Planck Institute for the Study of Crime, Security and Law

Abstract

The law shares many of its concepts with other areas of discourse. That most of these concepts have a specific legal meaning when used inside the law is a well established linguistic fact. The law develops its own conceptions of concepts it shares with other disciplines. Like King Midas, who turned anything he touched into gold, the law turns its concepts into legal ones. The deep reason for the Midas quality of the law lies in the specificity of the legal practice, its methods, doctrinal standards and institutional setting. This holds also for the one area where shared concepts have triggered one of the main controversies in legal theory: the relation of legal and moral concepts. Dworkin initially attacked Harts separation thesis with the observation that the law employs moral principles in hard cases. Positivists have struggled ever since to accommodate this observation. But if the law has a Midas quality the whole debate deflates. Even in hard cases the law applies legal conceptions of concepts it shares with morality. These conceptions are specifically legal and not to be confounded with there moral counterparts.

Keywords: Legal Theory, Positivism, Hart-Dworkin Debate, Law and Morality, Adjudication

Suggested Citation

Poscher, Ralf, The Hand of Midas: When Concepts Turn Legal or Deflating the Hart-Dworkin Debate. Available at SSRN: https://ssrn.com/abstract=1121128 or http://dx.doi.org/10.2139/ssrn.1121128

Ralf Poscher (Contact Author)

Max Planck Institute for the Study of Crime, Security and Law ( email )

Guenterstalstr. 73
Freiburg, 79100
Germany

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