5. Dworkin and law’s moral claims

Abstract

This chapter discusses the essential elements of Dworkin’s theory of law. It focuses on Dworkin’s assault on positivism and his insistence upon the close relationship between morals and the law. By denying the positivist separation between law and morals, he expounds a theory that rejects the proposition that judges either do or should make law, and contends instead that judges have an obligation to find and express ‘the soundest theory of law’ on which to decide hard cases; and concludes that, since judges (who are unelected officials) do not make law, the judicial role is democratic and prospective. His approach is based on the notion that only by adopting this view of the judicial function can the law take rights seriously.