ABSOLUTELY NOT!

The main reason being that I do not really understand Kelsen to have been a Positivist in the correct sense of the term (a la Hart). I see him more as a quasi-secularized Kantian a la Hans Blumenberg and his work on the self-grounding of Modernity,The Legitimacy of the Modern Age. If we take a narrower version of Positivism (as adopted by many of the fanatics of the neo-Hart camp), then Kelsen must be re-defined as a non-Positivist positivist and any fundamental dispute with Dworkin vanishes.

Agreed heartily with everything that  Alexis said.

I would argue that

1. Dworkin might have actually won against the late Hart, but

2. Kelsen hold different views on a number of issues, as made clear in the Kelsen-Hart debate, a description of which you find in A Life of H. L. A. Hart. The Nightmare and the Noble Dream by Nicola Lacey, (http://ukcatalogue.oup.com/product/9780199274970.do)

3. Kelsen as a Kantian could never really separate law from morality. even if he argued for an autonomous sphere of the law. and

4. Dworkin, relying on the legal tradition of the US  was not in a position to agree with a strict separation of morality and the law.

See also my comparison of Kelsen and Hayek, tackling the same sort of question: 

https://www.researchgate.net/publication/269517705_The_question_of_the_limitation_of_the_state_by_the_law._A_comparison_of_Kelsen's_and_Hayek's_approach

Article The question of the limitation of the state by the law. A co...

Thank you both Gwendolyn and Ferenc for your quick answer.

Thank you Stefan for your answer.

ABSOLUTELY NOT!

The main reason being that I do not really understand Kelsen to have been a Positivist in the correct sense of the term (a la Hart). I see him more as a quasi-secularized Kantian a la Hans Blumenberg and his work on the self-grounding of Modernity,The Legitimacy of the Modern Age. If we take a narrower version of Positivism (as adopted by many of the fanatics of the neo-Hart camp), then Kelsen must be re-defined as a non-Positivist positivist and any fundamental dispute with Dworkin vanishes.

Agreed heartily with everything that  Alexis said.

Eric, its arguments seem correct. Does anyone have any more argument?

Philadelphia, PA

Dear Soares,

Wilson seems to have it about right (from my limited perspective). Contemporary emphasis on the "positive law," chiefly means emphasis on the need to understand the law as it stands, without commitment to the influence of morality or cultural elements on the development of law. One has to have a good grasp of how the law stands at present in order to know whether and how it might best be changed. This attitude contrasts with older and more textual conceptions of "legal positivism," tending to reject any influence of morals and culture. 

H.G. Callaway

Re. STEFAN: sounds like a re-continuation of the debate over the ontological foundationalism of Natural Law by other means.

I would suggest there are two types of law: Corrective (moral) and Administrative (corporate governance and economics). Positive law is too pedantic, and Natural law rather uncertain!

@ STEFAN: Not unlike, then, Thomas Kuhn's theory of scientists. Normal scientists are puzzle-solvers (meaning they un-self-reflectively apply previously agreed upon assumptions in crunching date) and the revolutionaries (my term) who actually work to achieve paradigm shifts.

No theory of law is truly made obsolete by any later developments.  To some extent we are all positivists now–we believe in the value of and the primacy of written text in most circumstances.  But in another way we are all natural law adherents and advocates – the entire basis of international human rights and human rights more generally is premised on the understanding that certain rights attach to each person simply because of that person being human and because there are certain underlying "natural" truths about the nature of being human that cannot and must not be denied.

Philosophical explorations of the workings of the law and the underpinnings of it are valuable within their realm and for certain utilitarian purposes, but pushing any particular philosophical stance too far into practice can result in very strange and even evil results.  Law is a practical discipline with roots more in rhetoric than in theories of knowledge or morality.  All three are relevant, but law is far more a branch of rhetoric than it is the other two.

Such much good arguments, people. Many thanks.

@ STEVEN: good to hear that! I have been teaching my students both points for years. (i) That Law is most similar to Rhetoric in its structure and logic; (ii) Human Rights law is essentially neo-naturalist.

"Legal Positivism" has become a placeholder for too many different theories on Law, ranging from Hobbes to Kelsen and beyond, so I think it is a worn out word.

It is hard to grasp what Dworkin ever meant. My feeling is that He solved everything in the blurred numinous foggy cloud of the "interpretive" dimension, just when in more serious fields Susan Sontag wrote against interpretation, and even Eco moved a step so far against over-interpretation. All things Dworkin, and his Dowrkin-ites, have long been almost unaware.

So much so, I think that anyway Dworkin tried to have an anti-kelsenite stance in a moment where it was absolutely in fashion to defeat a theory which was already dead.

At the same time, in search of success as he was, he certainly left a room for morality in law for the complacency of his audience, without never really engaging himself in moral philosophy.

What is the most astonishing is the extent to which Dworkin was able to overpass and underscore all the major debates on Kelsen (like those represented by Schmitt from a generale point of view and Morgenthau on International law) and on interpretation (from Frye to Paul de Man, to Hayden White).

That's a very well mocking me. That's not what I would to mean, just pointing out that maybe Dworkin is not the best to rely upon for interpretation theories. Certainly, for instance, Guido Calabresi's "A Common Law for the Age of Statutes" offers a much deeper insight than any of the wonderfully entitled Dworkin's works.

Hi Pier,

Not mocking you! Just imagine the executive drafting laws to please their friends and followers, and the judiciary is not allowed to make sense of it. The executive might as well go ahead and implement it. No need of lawyers or courts. To that extent Dworkin has a point, me thinks.

Hi Pier,

Not mocking you! Just imagine the executive drafting laws to please their friends and followers. If the judiciary is not allowed to interpret the law to make sense of it, what's the point of the judiciary ? (granted they can get it wrong too). If there is no filter, the executive might as well implement what they draft straight away. No need of lawyers or the courts. That is what I meant.

By the way I do not believe Dworkin is the only source who can be relied on for guidance. I rather think there to be only two types of law: Corrective law (moral) and Administrative law (Corporate, Economics etc). May I add that positive law is too pedantic and that natural law is rather uncertain.

Wonderful!

Yes, absolutely agree

Hi Marcelo,

Dworkin's problem is that if he sets up constitutional traditions as the standard according to which the intrinsic justice of the judges' decisions are to be measured against, then he has failed to demonstrate a necessary Connection between law and morals. For all Dworkin has done is to substitute constitutional traditions for morals, whereupon he falls back to a standard that in essence does not have to be substantively moral. So Dworkin is still left with the task of demonstrating the necessary connection between law and morals, and thus hasn't managed to disprove Kelsen's idea that law in the formal sense constitutes an autonomous system of norms.

I do not think that it isan objectively decidable either-or question, but I myself side in this respect with Dowrkin. However, i would go further, and claim, that natural law still has a relevance, as human nature decides a priori certain things, that can be excluded from becoming law, and certain other things, that must be included in any normal working mechanisms of law.