Hard' cases in 'wicked' legal systems
<p>A central debate in jurisprudence concerns the nature of the judicial obligation in 'hard' cases ones that turn on con- tested points of law. The legal positivists hold that judges have to exercise a discretionary power, not ultimately constrained...
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| Format: | Thesis |
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1989
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| _version_ | 1797079733451620352 |
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| author | Dyzenhaus, D |
| author_facet | Dyzenhaus, D |
| author_sort | Dyzenhaus, D |
| collection | OXFORD |
| description | <p>A central debate in jurisprudence concerns the nature of the judicial obligation in 'hard' cases ones that turn on con- tested points of law. The legal positivists hold that judges have to exercise a discretionary power, not ultimately constrained by law, to decide such cases. Ronald Dworkin has argued that the decision of such cases is determined by law: judges must apply a 'soundest theory' which explains and morally justifies the existing law. Positivists respond that 'wicked' legal systems ones which are the instrument of a repugnant moral ideology are a counterexample to Dworkin. I set out this debate and then evaluate these rival positions in a case study of judicial interpretation in the South African legal system, which is the standard example of a wicked one.</p> <p>I argue that, in the historical and political context of a the South African legal system (Ch.2), the first part of the study (Chs.3,4,5) shows that positivist ideas not only fail to assist judges in a wicked legal system, but make things worse. I argue that the rest of the study (Chs.6,7,) shows how judges do better who adopt the advice that Dworkin gives. I also suggest that their approach can only be stop- ped at the cost of great damage to a legal system and that this should lead us to take seriously ideas put forward by Lon Fuller.</p> |
| first_indexed | 2024-03-07T00:49:57Z |
| format | Thesis |
| id | oxford-uuid:86076a22-0626-42da-830b-5324635f1098 |
| institution | University of Oxford |
| last_indexed | 2024-03-07T00:49:57Z |
| publishDate | 1989 |
| record_format | dspace |
| spelling | oxford-uuid:86076a22-0626-42da-830b-5324635f10982022-03-26T22:01:28ZHard' cases in 'wicked' legal systemsThesishttp://purl.org/coar/resource_type/c_db06uuid:86076a22-0626-42da-830b-5324635f1098Polonsky Theses Digitisation Project1989Dyzenhaus, D<p>A central debate in jurisprudence concerns the nature of the judicial obligation in 'hard' cases ones that turn on con- tested points of law. The legal positivists hold that judges have to exercise a discretionary power, not ultimately constrained by law, to decide such cases. Ronald Dworkin has argued that the decision of such cases is determined by law: judges must apply a 'soundest theory' which explains and morally justifies the existing law. Positivists respond that 'wicked' legal systems ones which are the instrument of a repugnant moral ideology are a counterexample to Dworkin. I set out this debate and then evaluate these rival positions in a case study of judicial interpretation in the South African legal system, which is the standard example of a wicked one.</p> <p>I argue that, in the historical and political context of a the South African legal system (Ch.2), the first part of the study (Chs.3,4,5) shows that positivist ideas not only fail to assist judges in a wicked legal system, but make things worse. I argue that the rest of the study (Chs.6,7,) shows how judges do better who adopt the advice that Dworkin gives. I also suggest that their approach can only be stop- ped at the cost of great damage to a legal system and that this should lead us to take seriously ideas put forward by Lon Fuller.</p> |
| spellingShingle | Dyzenhaus, D Hard' cases in 'wicked' legal systems |
| title | Hard' cases in 'wicked' legal systems |
| title_full | Hard' cases in 'wicked' legal systems |
| title_fullStr | Hard' cases in 'wicked' legal systems |
| title_full_unstemmed | Hard' cases in 'wicked' legal systems |
| title_short | Hard' cases in 'wicked' legal systems |
| title_sort | hard cases in wicked legal systems |
| work_keys_str_mv | AT dyzenhausd hardcasesinwickedlegalsystems |