The decision made by the New York Court of Appeals was no doubt an attractive
one. But why is it problematic for legal positivists such as Hart? It is because,
Dworkin writes, legal principles such as the principle that nobody should profit
from his own wrongs are not recognized as part of the law by the legal rules that
define the law. The principle does not have the relevant source. In fact, it has no
“source” at all because it was not made. And still, as a matter of fact, this principle
is part of law. Dworkin uses Hart’s approach to determine law’s nature, namely
looking at social reality, and more in particular to what courts do. However, on
Dworkin’s view of social reality, there is more law than what can be identified by
means of the check what has been created by an empowered lawmaker. Social
reality contains legal principles that are not law because they were competently
created but because of their “right” content.
If this argument ascribed to Dworkin is correct, it has profound implications for
the nature of the law. Indeed, it implies that there is more law than positive law
alone. Therefore, Dworkin’s point about legal decision making has implications
that reach farther than legal decision making alone. It regards the very nature
of law.
14.4 Fact and Norm
Law finds itself on the borderline in between fact and norm. On one hand, law aims
to answer the question what we should do. From this perspective, law is similar to
morality and legal reasoning looks like determining what is the best thing to do. On
the other hand, law aspires to be factual, something that is the same for everybody
and that can be established objectively. From this perspective, legal reasoning is
establishing the legal facts.
valid lawdiscretionary
powerFig. 14.1The donut theory of law
14 Philosophy of Law 323