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A positivist account of legal princi...

Himma, Kenneth Einar.

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A positivist account of legal principles (H. L. A. Hart, Ronald Dworkin).

Record Type:	Language materials, printed : Monograph/item
Title/Author:	A positivist account of legal principles (H. L. A. Hart, Ronald Dworkin)./
Author:	Himma, Kenneth Einar.
Description:	424 p.
Notes:	Chairperson: Ronald M. Moore.
Contained By:	Dissertation Abstracts International62-08A.
Subject:	Law. -
Online resource:	http://pqdd.sinica.edu.tw/twdaoapp/servlet/advanced?query=3022849
ISBN:	0493337091

A positivist account of legal principles (H. L. A. Hart, Ronald Dworkin).
Himma, Kenneth Einar.

A positivist account of legal principles (H. L. A. Hart, Ronald Dworkin). - 424 p.

Chairperson: Ronald M. Moore.

Thesis (Ph.D.)--University of Washington, 2001.

In <italic>The Concept of Law</italic>, H. L. A. Hart propounds three central theses about the nature of law: (1) a standard of behavior is a law in a society S if and only if that standard has been promulgated in accordance with the procedures specified in S's rule of recognition (the Pedigree Thesis); (2) there are no necessary substantive moral constraints on the content of law (the Separability Thesis); and (3) judges have discretion in hard cases to base their decisions on extralegal standards; thus, judges decide hard cases by creating new law and not by applying existing law (the Discretion Thesis).

ISBN: 0493337091Subjects--Topical Terms:

600858
Law.

A positivist account of legal principles (H. L. A. Hart, Ronald Dworkin).
LDR:02815nam 2200301 a 45 001 934849
005 20110509
008 110509s2001 eng d
020 $a 0493337091
035 $a (UnM)AAI3022849
035 $a AAI3022849
040 $a UnM $c UnM
100 1 $a Himma, Kenneth Einar. $3 579208
245 1 0 $a A positivist account of legal principles (H. L. A. Hart, Ronald Dworkin).
300 $a 424 p.
500 $a Chairperson: Ronald M. Moore.
500 $a Source: Dissertation Abstracts International, Volume: 62-08, Section: A, page: 2783.
502 $a Thesis (Ph.D.)--University of Washington, 2001.
520 $a In <italic>The Concept of Law</italic>, H. L. A. Hart propounds three central theses about the nature of law: (1) a standard of behavior is a law in a society S if and only if that standard has been promulgated in accordance with the procedures specified in S's rule of recognition (the Pedigree Thesis); (2) there are no necessary substantive moral constraints on the content of law (the Separability Thesis); and (3) judges have discretion in hard cases to base their decisions on extralegal standards; thus, judges decide hard cases by creating new law and not by applying existing law (the Discretion Thesis).
520 $a Despite the apparent simplicity of Hart's positivism, it has been the subject of fierce controversy. In “The Model of Rules I,” Ronald Dworkin argues that judges are bound in hard cases to consider legal principles that derive their authority from, as Dworkin puts it, “a sense of appropriateness developed in the profession and the public over time.” Thus, he concludes that two of Hart's theses are false. First, since the authority of such principles does not depend on their having been promulgated in accordance with the requirements of the rule of recognition, Hart's Pedigree Thesis is false. Second, since judges are always bound by these principles in hard cases, Hart's Discretion Thesis is false.
520 $a In my dissertation, I consider a number of attempts to defend Hart's positivism from Dworkin's criticisms. I show that Hart would reject each of these attempts as involving an unacceptable modification of his version of the Pedigree Thesis. Additionally, I argue that, contra Dworkin, the authority of legal principles derives from their having been declared by judges in the course of deciding hard cases. Accordingly, I conclude that the validity of legal principles is consistent with Hart's version of the Pedigree and Discretion Theses.
590 $a School code: 0250.
650 4 $a Law. $3 600858
650 4 $a Philosophy. $3 516511
690 $a 0398
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710 2 0 $a University of Washington. $3 545923
773 0 $t Dissertation Abstracts International $g 62-08A.
790 $a 0250
790 1 0 $a Moore, Ronald M., $e advisor
791 $a Ph.D.
792 $a 2001
856 4 0 $u http://pqdd.sinica.edu.tw/twdaoapp/servlet/advanced?query=3022849