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The Legitimacy of Law: A Response to Critics*
Author(s) -
DYZENHAUS DAVID
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.tb00168.x
Subject(s) - legitimacy , legal positivism , adjudication , positivism , jurisprudence , law , obligation , argument (complex analysis) , individualism , context (archaeology) , political science , discretion , judicial discretion , law and economics , sociology , philosophy of law , comparative law , judicial review , politics , paleontology , biochemistry , chemistry , biology
In this paper, the author responds to the claim that his critique of legal positivism, based on an account of adjudication in South Ahica, misses its target because it ignores, first, the positivist thesis of judicial discretion and, secondly, the fact that positivism offers no account of judicial obligation. He argues that these theses expose a tension in positivism between its commitments to liberal individualism and to the supremacy of positive law, a tension which can be resolved only by situating positivism in its true context, the Hobbesian argument for the legitimacy of law. Following Dworkin, he advocates the practice‐oriented common law tradition, one that makes the legitimacy of law a matter of standards already implicit in law which are best revealed in adjudication.