Legal theory and political legitimacy: Positivism, Dworkin's rights thesis, and critical legal studies

This thesis explores numerous themes in legal and political theory. The major theme running throughout the thesis is a defense of legal positivism against three powerful criticisms. A second theme concerns the relationship between law, political legitimacy, and political obligation. A third theme explores aspects of the theory of legal reasoning.

Chapter I defends legal positivism against Ronald Dworkin's claim that the positivist doctrine of judicial discretion leads to unjustified, and possibly unjustifiable, retroactive application of law. Chapter I demonstrates that Dworkin's preferred theory of adjudication, the rights thesis, as developed in Taking Rights Seriously, also involves retroactive application of law. Although retroactivity occurs less frequently in Dworkin's theory than in most legal positivist theories, when it does occur it is a more serious defect for Dworkin than for his positivist opponents. Chapter I also argues that coherence theories of legal reasoning are path dependent.

Chapter II develops Dworkin's theory of law as elaborated in Law's Empire. Particular attention is paid to Dworkin's advocacy of interpretive methods as a methodological foundation for political and legal theory. Dworkin urges that, unlike interpretive methods, positivist semantic methods cannot account for theoretical controversy, for example, controversy about methods of constitutional, statutory, and common law interpretation. Chapter II continues the defense of positivism against Dworkin's criticisms. Chapter II argues that no modern positivist holds the semantic theories that Dworkin attacks, and presents a modern semantic theory, the historical chain theory, that can account for theoretical disagreement and which legal positivists might adopt. Thus, the existence of controversy does not compel legal positivists to accept Dworkin's interpretive methods.

Chapter III explores critical legal scholar's claims that law is contradictory, radically indeterminate, and therefore illegitimate. Chapter III defends positivist and natural law theories of legal reasoning against these charges. In particular, Chapter III argues that legal indeterminacy is not radical, but at most moderate. Moreover, Chapter III claims that moderate indeterminacy is no bar to political legitimacy. Finally, Chapter III elaborates the mistaken assumptions about legal reasoning that underlie the critical legal scholars' exaggerated assessment of the extent of legal indeterminacy.