Harts version of legal positivism and Dworkins attack of Harts Essay

stags version of wakeless profitableness and Dworkins attack of Harts particular version - Essay shellAlso associated with positivism is the discretion thesis, which describes the fact of judicial decision as such when there ar gaps left by legal rules (i.e., in the so-called awkward cases), judges make new laws in the exercise of their discretion. This emphasis on the part played by judicial discretion when courts have to shape open questions of law runs through positivistic jurisprudence from John Austin to H. L. A. Hart. The positivist discretion thesis has, however, been challenged by theorists like Ronald Dworkin, Rolf Sartorius and others. This paper explores the arguments of both the positivist and non-positivist camps and discusses whether an acceptance of the positivist thesis testament cause one to adopt a different outlook with regards to the judicial process in hard cases. Due to space constraints, this paper focuses only on Harts version of legal positivism and D workins attack of Harts particular version. These two theorists are chosen because of the prominence of the Hart/Dworkin debate.Part II of the paper summarises the ideas of Hart. Part III provides an explanation of Dworkins attack on legal positivism. Part IV then moves into an analysis of whether adopting a positivist outlook will make a difference as to how one views the process of adjudicating hard cases.