n Malawi Law Journal - The significance of Dworkin's non-positivist jurisprudence for law in the post-colony : essay
|Article Title||The significance of Dworkin's non-positivist jurisprudence for law in the post-colony : essay|
|© Publisher:||University of Cape Town|
|Journal||Malawi Law Journal|
|Author||Drucilla Cornell and Nick Friedman|
|Publication Date||Jan 2010|
|Pages||1 - 94|
In this essay we provide a critique of the historical development of the central themes of Ronald Dworkin's work, from Law's empire to his forthcoming book, Justice for hedgehogs. We argue that Dworkin's early work is best understood through a reading of Hegel in order to understand the constitution of the community of principle which is central to Dworkin's interpretive theory. Even on this reading, though, Law's empire still fails to make the decisive break with legal positivism which Dworkin claims it does. However, this break finally appears in Dworkin's recent work. In Justice for hedgehogs, Dworkin develops a comprehensive conception of political morality in which his notion of 'integrity' in the law is ultimately an aspirational ideal of legality rooted in dignity. This is an expressly Kantian turn in his work, which we commend. However, we proceed to critique aspects of Justice for hedgehogs on the basis of what we believe is a proper interpretation of Kant. First, contrary to Dworkin's hesitance on the point, Kant does in deed support one of the key in - sights of the book - that moral duty can not be insulated from the over all project of living well. Secondly, Kant would denounce Dworkin's labelling of his second principle of dignity as the principle of 'authenticity'. And thirdly, Dworkin cannot fully reconcile moral duty with living well until he embraces Kant's demand that we seek a principled harmonisation of our interests with others ex ante, rather than ex post. We conclude our essay by demonstrating that the South African Constitution is exemplary of precisely the aspirational ideal of legality which Dworkin now powerfully defends.
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