GENUINE DISAGREEMENT IN THE CONCEPT OF JUSTICE

A DEBATE BETWEEN KELSEN AND DWORKIN

Abstract

This paper aims to show that positivism and post-positivism’s
philosophical and political bases, although distinct, have significant similarities.
We’ll identify such similarities from the bibliographic review of two important
works for this debate: “Pure Theory of Law” by Hans Kelsen and “Justice
for Hedgehogs” by Ronald Dworkin. From the clarification of theoretical
similarities of these two pieces our specific objective will be subdivided into
establish the genuine agreements and disagreements of these two currents of
thought in relation to the concept of justice. That allows to affirm as true the
hypothesis that judgmental values are always moral, and that there is an objective
moral value that determines, conditions, and justifies them. This will result in
the notion that the divergence between Kelsenian positivism and Dworkinian
post-positivism is based on metaphysics and is, in fact, a genuine disagreement.