Ronald Dworkin e il positivismo giuridico: un bilancio provvisorio

Abstract

The controversy between Dworkin and legal positivism has lasted more than forty years. After Dworkin’s death, a reflection on this debate is needed. This paper faces some of the most important and popular arguments Dworkin advanced against legal positivism. More precisely, the article is divided in two main parts. The first is devoted to a critical presentation of three arguments developed by Dworkin in his early essays against Hart’s practice theory of norms. In particular, these arguments challenge a) the idea that law is a system of rules; b) the autonomy of legal obligation from moral one and c) the idea that judges exercise (strong) discretion in hard cases. The second part analyses two important aspects of Dworkin’s non-positivistic conception of law: the claim that law should be regarded as a community of principle and the thesis that ‘law’ is an interpretive concept.