Law as Weak Integrity

Abstract

In this paper, I want to give a rough outline of a conception of law that combines elements of Dworkinianism, positivism, and realism. I will argue that while Dworkin gets some fundamental things right in his theory, he should have stayed closer to the positivists and realists despite the latter being wrong, if not silent, about the issues Dworkin is most interested in. He should have presented his theory less as an alternative and more as an important complement to Hartian positivist approaches. Most of all, he should not have given morality such a prominent role in legal interpretation and adjudication. Instead, he should have accepted that there may be much fewer uniquely correct answers to difficult legal questions (in civil and constitutional law) than his rights thesis suggests.

Keywords: legal positivism, non-standard picture of law, Dworkin, legal disagreements