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Public Law and Legal Theory

Brian M McCall

2009

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Full-Text Articles in Law

Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall Dec 2008

Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian M. Mccall

Brian M McCall

This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.

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The Architecture Of Law: Building Law On A Solid Foundation The Eternal And Natural Laws, Brian M. Mccall Dec 2008

The Architecture Of Law: Building Law On A Solid Foundation The Eternal And Natural Laws, Brian M. Mccall

Brian M McCall

Employing the architectural themes used by Aquinas in his discussion of Eternal Law, this article presents Natural Law as a frame for rational thought rooted in the foundation of the Eternal Law. The argument contrasts this theory of law, based on a close reading of Aquinas and Gratian, to both a Positivist theory of law as power as well as to other Natural Law theories not incorporating the foundation. Law is presented as a product of both reason and will. The genus of law is shown to involve both specific precepts as well as more general guiding principles. Law is …

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