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University of Toronto Mississauga
Luke Gelinas

PHL271 Feb 6 th More on Dworkin and The Interpretive Theory of Law 1. Last week: Dworking on adjudication (Dorenburg) 2. Today: Dworkin’s abstract theory of law; more on adjudication Dworkin’s/Interpretive Theory of Law Law = positive law (law on the books) + full law - full law: set of principles of political morality that taken together provide the best interpretation of the positive law What makes something a valid law? murder is against the law, theft is against the law, *What makes these sentences true? WHY IS THE LAW PROHIBITING MURDER A VALID LAW? Hart - because we have an accepted Rule of Recognition that specifies the features (x, y, z) that something must have to count as a law, and the rule against murder has those features (x, y, z) *Rule of Recognition is a product of our social practice, it has authority b/c we accept it as authoritative. The rule determines what counts as laws, thus our social practices determine what counts as a law. - social practises: because we as a society have decided to treat a rule prohibiting murder as a valid law Aquinas - is valid because of facts about morality Dworkin - his interpretive theory falls between these two extremes - is valid because of social practises and facts about morality Dworkin: *Nature of law 1. Facts about our actual social practices relevant for determining what the law is but (contra positivism) not sufficient for valid laws 2. Moral facts likewise relevant for determining law but (contra natural law theories) not sufficient 3. combination of social practice and moral facts determines law… If a rule prohibiting murder is a valid law, that is because… 1. social facts: rule against murder has been included in positive law on the basis of generally accepted criteria (rule of recognition); judges and legislators and lawyers and citizens obey/treat it as binding 2. moral facts: rule against murder coheres or fits well with the best interpretation or justification of our actual social practices in terms of moral principles **Not only should it be in the law itself, but it should also have something extra, be seen and believed as right in society. Why do we do what we do where making and administering laws are concerned? Dworkin: we understand our actual legal practices by seeing them as attempts to realize justice, equality, fairness - the best interpretation of our actual social practices involves appeal to moral ideals Dworkin 1. x is a law only if x coherers or fits well with the best interpretation of our actual legal practises in terms of moral values 2. so if our actual legal practises are best understood as attempts to realize certain moral ideals… 3. then x must cohere with the relevant moral ideals or principles that give our legal practises their point – must fit with the moral principles our practi
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