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Dyzenhaus on Positivism and Judicial Obligation
Author(s) -
HARTNEY MICHAEL
Publication year - 1994
Publication title -
ratio juris
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.344
H-Index - 10
eISSN - 1467-9337
pISSN - 0952-1917
DOI - 10.1111/j.1467-9337.1994.tb00165.x
Subject(s) - positivism , legal positivism , contradiction , obligation , argument (complex analysis) , logical positivism , judicial discretion , resistance (ecology) , law , discretion , sociology , duty , government (linguistics) , judicial opinion , epistemology , political science , law and economics , philosophy , judicial review , legal realism , legal research , medicine , ecology , linguistics , biology
The author criticizes the argument in Dyzenhaus (1991) that a study of South African judicial decisions establishes the superiority of Dworkinian anti‐positivism over legal positivism. Among the claims criticized are: (1) Positivism and anti‐positivism each imply a specific theory of judicial duty, and the decisions of South African judges are explained by their adherence to one or the other of these theories; (2) resistance to South African government policy was morally required of judges; (3) the only theory which supports this resistance (anti‐positivism) is therefore the correct one; (4) the cases establish that judges do not have discretion in hard cases; (5) Dworkin's theory does not imply that South African judges are required to apply the wicked principles embedded in their legal system; (6) positivism involves a pragmatic contradiction.