The Third Theory of Law

Abstract

Professor Dworkin's theory of law is called as the third theory of law because it contrasts both with legal positivism and with the doctrine of natural law, and is in some ways intermediate between the two. This third theory of law combines descriptive with prescriptive elements. On the one hand, Professor Dworkin is claiming that it gives the best theoretical understanding of legal procedures and legal reasoning actually at work in such systems as those of England and the United States. But on the other, he wants it to be more explicitly accepted and more consciously followed. The third theory of law is thus a plea for a more speculative and enterprising handling by judges of their traditional materials and data. Like the natural law doctrine, this theory allows the consciences and the speculations of judges to intervene significantly between what the legislative and executive branches try to do—or, for whatever reason, leave undone—and the law as it actually operates.