7
DISCRETION AND LEGAL THEORY

1. THE DISCRETION ARGUMENT

In the last chapter we examined three arguments, each purporting to show that positivism is inconsistent with a rule of recognition containing moral tests for valid law, and that inclusive positivism is therefore incoherent. The Validity Argument was shown to be unsound on the ground that weight and validity are logically compatible properties. The Pedigree Argument was seen to fail because the moral tests for law sanctioned by inclusive positivism are only contingent features of some possible legal systems. The Argument From Function was discredited on a number of grounds, the primary one being that it seriously exaggerates the positivist's concern for certainty and finality in the law, casting his views concerning how law sometimes serves these values into a form he would reject, namely, a normative theory of law.

In this chapter we consider two further arguments which might be offered to show that positivism is inconsistent with moral tests for law, and that inclusive positivism is therefore internally inconsistent. Both arguments appeal to the idea of discretion, a notion which was extremely important in Dworkin's early assault upon positivism.1 The first argument runs as follows.

According to inclusive positivism, the fact that judges and lawyers appeal to principles of political morality as grounds for determinations of law is consistent with legal positivism. But this is wrong. It is an implication of the positivist's theory of legal reasoning that any appeal to moral principles must always be discretionary. It must involve the creation of new law, not the discovery of pre-existing, valid law. So inclusive positivism is internally incoherent after all,

____________________
1
See "Judicial Discretion" and Taking Rights Seriously, ch. 3, formerly called "The Model of Rules".

-191-

Notes for this page

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this page

Cited page

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited page

Bookmark this page
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
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this book

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this book
  • Bookmarks
  • Highlights & Notes
  • Citations
/ 290

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.