Falsification of the Theory of Legal Rules and Legal Standards of Ronald Dworkin Using the Methodological Foundations of the Theory of Law and Morality of Leon Petrażycki

Abstract

Efficient thinking is the foundation of efficient operation. The correct definition of concepts, especially the basic ones for a given field, in order to reach the truth, is a condition for the development of science and its social utility. The Petrażycki’s research methodology of law is a thoroughly modern method, as it enables effective examination of the accuracy of contemporary legal theories created after Petrażycki’s input. A model contemporary theory susceptible to an examination through the research methodology of law by Petrażycki is the normative theory of legal rules and non-legal standards by Dworkin. For this purpose some falsifications will be subject, i.e. selected ad hoc among many others, two important theories of normative law theory Dworkin. The first one is the thesis classifying legal norms into two groups of norms, namely legal rules and non-legal standards. The second one is a thesis about the existence of who are capable of discovering and issuing lawful and, at the same time, fair (just) court decisions, which are also the only ones for resolving particular court disputes. Unfortunately, owing to the seemingly cognitive research methodology of Petrażycki, both Dworkin’s deformed division of legal norms as well as Dworkin’s Hercules judges – cannot stand the test of authenticity. Due to the Petrażycki’s methodology, the legal-normative theory of Dworkin does not lose an innovative outlook on the existence of social norms, which are being discovered by judges in the jurisprudence, indifferently to the doubts over their proper classification (be it non-legal standards or, perhaps, outright standards supplementing statutory and sub-statutory legal regulations). Moreover, Dworkin’s theory is placed between naive theories, regardless of whether they are considered realistically naive theories (towards the Hercules judges) or nihilistically naive theories (when it comes to the existence of the only judgments in the given court cases which are also the just ones.) A few random reflections on the well-known work of Dworkin with the help of Petrażycki’s methodology serve to provide a new perspective on the contemporary legal normativity.