ASSIGNMENT

Peoples Rights and Duties



Peoples Rights and Duties

Introduction

Human rights are really right? This is a question that irritates some specialists but the fact remains the philosophical question par excellence of political modernity. Human rights are for the perversion of a modern legal thought that has broken ties with its Roman roots. They are a barbaric instrument - in the etymological sense of the word - and only bring more confusion to the decay of ancient legal tradition. In this paper, we are going to discuss different views given by Dworkin and Harts on people's rights and duties (Shafer, 2005, 209).

According to Dworkin law is not entirely based on social facts, but includes the morally best justification for the institutional facts and practices that we intuitively regard as legal. While Hart, argued that the law should be understood as a system of social rules. According to Dworkin, Law is a well organized body of rules, principles and certain standards which can be used to define the direction of law in cases of penumbra. This body of rules can be used by a judge to define the direction of law in any situation or case (Hart, 2001, 22). Dworkin has a positivist approach, and his ideas are mainly based upon the positivist approach. Dworkin on law and morality has a similar opinion as many of positivists, but the main difference between other positivists and Dworkin's theory is in the case of novel situations referred to as hard cases.

The theory of H.L.A. Hart, in short, suggests that law is a body of purely rules and in case of “hard cases” judges have right to decide the case on their discretion which is based upon the morals. According to Hart cases are decided by judges on the basis of rules. When one rule applies to a case, no other rule can be applied to the same case. Now Dworkin says that there are, law comprises of rules, principles and other standards, when a rule covers a case then no principle or a rule can be applied to the sane case but if there is no existing rule that covers the case then the case is decided on the basis of principles (Gewirth, 2004, 81).

The relationship between duties and rights raises difficult questions. Dworkin argues that law contains "principles" as well as rules and that these principles cannot be traced to any explicit adoption or enactment. Dworkin argues further that the ruling theory neglects moral rights, which must be respected, he claims, even if they do not promote the general welfare. Dworkin then offers an alternative theory of law, founded on the right to be treated as an equal (Joseph, 1972, 823). Dworkin treats his theory as the high point of positivism and Austin because Hart's ideas emerge primarily from a critique of Austin's classical version of legal positivism.

The theory of HLA Hart developed a theory with two fundamental characteristics. First, the theory is general hartiana, in the sense that no attempt to explain ...