The Dworkin's Criticism About Legal Positivism and the Construction of the Concept of Discretion
Known as "Hart-Dworkin Debate," the clash of opinions between these two authors generated intense discussion about legal positivism and theories that seek to refute its core arguments. In this context, Ronald Dworkin strives to rebuke the positivist doctrine demonstratin...
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| Tipo de recurso: | artículo |
| Estado: | Versión publicada |
| Fecha de publicación: | 2015 |
| País: | Brasil |
| Institución: | Conselho Nacional de Pesquisa e Pós-graduação em Direito (CONPEDI) |
| Repositorio: | Revista Brasileira de Filosofia do Direito |
| Idioma: | portugués |
| OAI Identifier: | oai:ojs.indexlaw.org:article/811 |
| Acceso en línea: | https://www.indexlaw.org/index.php/filosofiadireito/article/view/811 |
| Access Level: | acceso abierto |
| Palabra clave: | Legal positivism Discretion hart-dworkin debate Positivismo jurídico Discricionariedade Debate hart-dworkin |
| Sumario: | Known as "Hart-Dworkin Debate," the clash of opinions between these two authors generated intense discussion about legal positivism and theories that seek to refute its core arguments. In this context, Ronald Dworkin strives to rebuke the positivist doctrine demonstrating that its elementary notions are not able to produce an effective theory about the nature of law. In this article, I analyze the criticism launched by Dworkin to legal positivism and concepts of Herbert Hart, with particular attention to the concept of discretion that Dworkin assigns to positivism. From a theoretical discussion involving the major works of these authors, I try to confirm the hypothesis that modern positivist theory is not committed to the meaning attributed by Dworkin to the notion of discretion, thus undermining the foundation of Dworkin's criticism concerning the interpretation in legal positivism. Finally, I also consider the seriousness of this problem for dworkin´s theory as a whole, assessing whether his criticism remains committed or resist this setback. |
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