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Confronted with standards beyond those obvious in purpose and rule, the positivist, says Dworkin, has two choices. He must either claim that such standards are only discretionary and hence not legally binding, or he may concede their binding status and argue that he identifies them as legal standards through reference, in some more complex way, to his theoretical master test.

There is, however, a third possibility. The positivist might admit that some standards bind judges but explain that they play a role in the legal system sufficiently different from that of ordinary rules and principles to justify excluding them from the class of standards encompassed by the concept of "law." This position makes irrelevant the question whether such standards could be captured in advance by a master test: Even if "capture-proof," they would constitute no defect in a theoretical model designed to capture only legal standards. Dworkin insists that arguments of this sort can only beg the question in the present context because they assume the very distinction between legal and other kinds of standards that the positivist's rule of recognition is designed to establish.

The aim of the present section is twofold: first, to develop the suggested distinction between two kinds of standards that bind judges, and, second, to consider whether all standards that bind judges must necessarily be deemed "legal" standards. In one sense, Dworkin is correct that the controversy at this point threatens to become merely verbal. But there is another, more important sense in which the difference between these kinds of standards appears sufficiently basic to justify (as more illuminating) a model of law that preserves, rather than dissolves, the distinction.


All rights reserved. Please contact the publisher for permission to copy, distribute or reprint. Pages 3-27, Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute in Ronald Dworkin and Contemporary Jurisprudence, edited by Marshall Cohen,1984, reproduced by permission of Rowman & Littlefield