No Easy Cases?
Of all the various aspects of legal positivism, it is those bearing upon a theory of adjudication which have prompted its critics’ fiercest attacks. Legal positivism is taken to be committed to the thesis that a distinction exists between (so called) ‘easy’ cases—where the law can be identified and applied straightforwardly—and ‘hard’ cases—where the issue is not determined by the existing legal standards. Most critics are united in their rejection of this dichotomy, but divided by the two main routes they follow. The more familiar one, first outlined by Professor R.M. Dworkin, sets out to deny that hard cases are not regulated by legal standards. The other objection, and the one I wish to consider here, strives to show that the distinction itself is illusory since in all relevant respects, there are no easy cases as the positivist presumes.