Law and Public Reason

McGill Law Journal, Vol. 38, p. 367, 1993

28 Pages Posted: 22 Aug 2008

See all articles by David Dyzenhaus

David Dyzenhaus

University of Toronto - Faculty of Law/Department of Philosophy

Date Written: August, 21 2008

Abstract

In this article, the author argues that H.L.A. Hart's legal positivism is ultimately self-subverting. He contends that Hart fails in his attempt to show that positivism can explain the normativity and authority of law in a way which does not entail any commitment to the legitimacy of law; Hart's positivism cannot escape its origin in Thomas Hobbes's command theory of law which holds that positive law is always legitimate. Thus, Hart's positivism does not provide subjects with a genuine resource to test the legitimacy of law. However, the author concludes that such a resource might be found in Ronald Dworkin's legal theory, if he is understood as arguing that the legitimacy of law is a matter of principles immanent within the law.

Suggested Citation

Dyzenhaus, David, Law and Public Reason (August, 21 2008). McGill Law Journal, Vol. 38, p. 367, 1993. Available at SSRN: https://ssrn.com/abstract=1244251

David Dyzenhaus (Contact Author)

University of Toronto - Faculty of Law/Department of Philosophy ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada
416-978-6935 (Phone)
416-978-2648 (Fax)

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