32 Pages Posted: 25 Jun 2012
Date Written: June 25, 2012
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.
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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