Issues of foundations and criteria of law: criticism of the theory of social rules and conventional rule of recognition in “early” R. Dworkin’s doctrine

Abstract

The article investigates the doctrine of an American jurist, Ronald Dworkin, presented in the essay “Social Rules and Legal Theory” (1972) and considered as a stage in his large-scale polemics with legal positivism. In this doctrine the author criticizes the theory of “social rules” and the conventional “rule of recognition”, which is basic for his opponents. The theory requires an agreed unity of practice and defends the controversial character and moral engagement of normative grounds and criteria of law, their priority and autonomy against community practices. The relevance of the topic is due both to the fundamental nature of the Dworkin - positivists dispute, and peculiarities of the 1972 doctrine, which formed a number of its “cross-cutting” elements. The article is aimed at systematization and assessment of the 1972 doctrine, relies on the texts by its author, his opponents and researchers, and uses various tools, primarily the ideological and historical method, focused on explication of views and issues developing in the history of thought. The study results are generalization of original components of R. Dworkin’s 1972 doctrine, its localization within the dispute between the author and positivists and discerning its ideological and historical implications. Summing up the article emphasizes a stimulating role of the 1972 doctrine for evolution of the rival approaches, as well as its potential for the philosophy of law, associated with R. Dworkin’s problematization of a link between normativity and facticity in law, linguistic-analytical idea of a rule as a practice, and conventionalist account of foundations of law which decenters normative disagreements.