Jon Holbrook pays tribute to the late Ronald Dworkin
Like all profound thinkers Professor Ronald Dworkin, who died in February, asked a big question and answered it by challenging a prevailing orthodoxy. To the question “what is the theoretical basis for law?” Dworkin locked horns with legal positivism or, as he described it, the ruling theory of his day. Legal positivism reached its apogee with HLA Hart’s arguments in The Concept of Law, published in 1961. To Professor Hart and other legal positivists law was about systems of rule making and structures of governance. Judges decided cases by applying previous judicial decisions and by drawing, where necessary, on the social standards and customs of the day. By studying these systems and structures the law could be discovered: the law was what had been posited.
Legal positivism
The impact of legal positivism can readily be seen in the conservative evolution of the British common law. Despite his flamboyance, Lord Denning, whose judicial career spanned from 1944 to 1982, practised legal positivism. Denning, often referred
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