2
THEORIES AND CONCEPTIONS

1. THE GROUNDS OF LAW

In Law's Empire Dworkin introduces an important distinction between what he calls the 'grounds' and the 'force' of law. The former primarily interest Dworkin in Law's Empire and concern the 'circumstances in which particular propositions of law should be taken to be sound or true'.1 Propositions of law, we are told, are 'all the various statements and claims people make about what the law allows or prohibits or entitles them to have'.2 That Canadians owing income tax to the federal government must file their returns before 30 April or face a late penalty is presumably an example of a proposition of law. That no person may profit from his own legal wrongdoing is another proposition of (common-law) jurisdictions. That Ontario residents may file for divorce following one year's separation is another still. All these propositions of law report the current state of the law in the relevant jurisdiction. They describe, or in some other way make reference to, existing legal rights, duties, powers, liabilities and so on. On Dworkin's account, the legal duties cited in, or entailed by, propositions of law should normally be respected by citizens, and their violation normally licenses state coercion. It justifies a judge in holding the offender liable.

As Dworkin sees it, competing jurisprudential theories of law differ in what they posit as the appropriate grounds for propositions of law. They also differ in their views on how one must go about discovering those grounds. Legal positivism suggests that the grounds of law are exhausted by a finite set of rules validated by the will of the sovereign ( Austin and Bentham), a chain of validity culminating in a presupposed 'Grundnorm' ( Kelsen) or a socially constituted, master rule of recognition ( Hart). The grounds of law, according to Dworkin's rendering of positivism, can always be

____________________
1
Law's Empire, 110.

-9-

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Inclusive Legal Positivism
Table of contents

Table of contents

  • Title Page iii
  • Acknowledgements vi
  • Contents ix
  • 1: Introduction 1
  • 2 - Theories and Conceptions 9
  • 3 - The Forces of Law 31
  • 4 - Inclusive V. Exclusive Positivism 80
  • 5 - Charter Challenges 142
  • 6 - Hercules 166
  • 7 - Discretion and Legal Theory 191
  • 8 - Morals and the Meaning of Laws 232
  • References 273
  • Table of Cases 281
  • Index 283
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