I do not agree with Dworkin's argument that Riggs v Palmer is a perfect counter example to the

ideas proposed by legal positivist. This is for two independent reasons. First, I will argue that the
idea of “principles” proposed by Dworkin through Riggs, may not be law at all. Secondly, even if
we assume that principles are law, I will argue the idea of “principles” that Dworkin draws out
through Riggs, are still examples of positive law.

Legal positivists claim that the testing whether a particular proposition is law is a test of
“pedigree”, rather than content. (Dworkin, 18) According to Hart for example, in modern legal
systems, a rule is “valid” only if it conforms to the “rule of recognition”(RoR) of that legal
system.(Hart, 103) Thus, the “law” in a society, according to Hart is an exhaustive category,
consisting of (i) rules that are valid as per rules of recognition and (ii) the “ultimate” rule of
recognition. Judges then apply this “law” to particular cases. What happens if no rule applies to
a case, or two rules apply to a case? Hart argues, that in such “hard” cases, the Judges uses
“discretion’ left open by the “open-texture” of the language of the rule. (127)

Dworkin challenges Hart’s idea that the law consists only of “rules” through the case of Riggs v
Palmer. In Riggs, the court had to decide whether a person who had murdered his grandfather,
could inherit property under his grandfather’s will. (Dworkin, 23) The court applying the maxim,
no one shall benefit from their own wrong, held that the grandson could not inherit the
grandfather's property. Dworkin argues that the maxim, “No one shall benefit from their own
wrong” is not a rule which is valid under any RoR. It was not enacted by any legislature nor did it
come from any precedent. Further, the maxim is not an application of the Judge's discretion,
since the Judges who applied it, considered themselves to be bound by it. Dworkin argues that
the maxim is a part of “principles”, which are commonly used by Judges to justify their
decisions. These principles, are not validated by the RoR but are still part of “law”. Moreover,
they are considered “law” by Judges, lawyers, law students and others who apply it. Positivists
like Hart then, are wrong according to Dworkin, because they cannot account for principles, like
the one applied in Riggs.

I do not think that Dworkin’s theory of principles creates insurmountable problems for legal
positivists. Clearly, there are case like Riggs, where the judges apply standards which are not
valid as per the RoR. However, it is unclear why these should be considered “law”, rather than
an application of judges discretion. Merely because Judges think they are bound by a particular
standard, does not make it law. Clearly, Judges come from different backgrounds, and each of
them apply their variegated lifeworlds to the decisions that they make. They each believe they
are bound to give the decisions that they end up pronouncing. This simple psychological tenor
of belief, express or implied, cannot turn these standards into law. Consider for example,
Justice Breyer of the Supreme Court of the U.S., who considers himself “bound” by the principle
that the death penalty should be abolished. This doesn’t mean it is the law, in fact it is clear to
all legal officials in America that it is not the law. In actual fact, Judges are not bound by
anything but the rules valid as per the RoR. This should be evident from the fact that when
judges ignore legislation in favour of these extraneous standards, they are often criticised by
other legal officials. Some of these decisions are also overruled as per incuriam, or “made in
ignorance of law”.

Assuming arguendo that these principles are law, they are not some ethereal entity that Dworkin
claims “hang” together, but a part of positive law. As Gardner clarifies, law may be legislated,
customary or case-law. (Gardner) All three laws are positive law, and are either intentionally or
unintentionally made by humans. In case-law such as Riggs, judges are not only applying the
law but are in fact changing existing law. In such cases, judges actually need a new rule to be
used in the argument, and deviate from existing law. Here, judges “...bring[s] the rule into
existence by relying on it”, either explicitly or implicitly.(38) The “principle” in Riggs is thus law,
only because the Judges in Riggs made it so. The principle thus has no existence sans Riggs.

References:
HLA HART, The Concept of Law
R Dworkin, The Model of Rules.
J Gardner, Some types of law.

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