El problema del método de la teoría jurídica contemporánea y la disputa Hart vs. Dworkin

Resumo

Dworkin's central argument against positivism casts doubt on its main tenet, viz, that the theory must give an account of Law from an externa! point of view.
Dworkin claims that Law is a social practice in which participants develop an interpretive attitude, i.e., they assign a purpose to it without considering other participant's opinions on that issue. An account of this practice demands interpretation, by adopting the participants' attitude.
The argument is inconsistent with Dworkin's distinction between levels of interpretation. Participants interpret certain data, and the observer must interpret that social practice. He must therefore consider the participant's opinions. If he adopted the internal attitude, the task would be unpursuable.
Dworkin's second argument attacks what positivism's tenet presupposes: propositions about law are different from propositions of law. Dworkin maintains that the distinction is insustainable, as with the distinction between ethics and meta-ethics. Meta-ethical theories that claim externality are inconsistent, since every proposition about morality (externa!) is supported by moral propositions (internal).
However, ifmeta-ethics is interna! to morality, there is at least one external theory about morality: Dworkin's own analysis. Dworkin's criticism is of a logical type, since he claims that meta-ethical theories are inconsistent. lt must then be meta-linguistic and, hence, external (non-moral).